THE Attorney General accepted the inevitability that the Supreme Court would find two sections of the Equal Status Bill unconstitutional, the Supreme Court was told yesterday.
Ms Mary Finlay SC, for the Attorney General and the State, said that two similar sections had previously been found in the Supreme Court to be repugnant in the Employment Equality Bill which was referred to the court by the President, Mrs Robinson, last April.
However, she said, in spite of that she submitted that the Supreme Court should go on to hear and decide on each provision of the newly referred Equal Status Bill.
The court had asked for submissions on whether the five judges should go beyond considering whether the two sections in the Equal Status Bill, similar to the two rejected provisions in the previous Bill, were repugnant.
The Equal Status Bill was referred by the President on Wednesday, May 7th, under Article 26 of the Constitution to test whether it was unconstitutional.
Ms Finlay said that Article 26 of the Constitution, which allowed for the referral, required the court to consider and give a decision on every part of the Bill. There were different constitutional issues raised in the separate provisions of the Bill. The court was obliged to answer all the questions.
If the court only considered the two sections, in the event of amending legislation being introduced the Oireachtas would not know whether other sections were constitutional, she said.
The Chief Justice, Mr Justice Hamilton, said the Attorney General had accepted that two of the Bill's sections were repugnant, having regard to their decision on the Employment Equality Bill.
The problem in this case was that the two Bills were inexorably linked to each other. The last Bill had not been signed into law. This new Bill proceeded on the basis that the Employment Equality Bill was law.
He said that, according to Ms Finlay's submission, "we're obliged to consider every provision even though we know that, apart from the unconstitutionality of sections 70(1) and 40(3), huge sections of the Bill are inoperable because they relate back to a Bill which has not been signed."
The two sections are those relating to the provision for vicarious liability in relation to criminal offences and to the admission of evidence in a criminal prosecution of facts in a document certified by the Equality Director.
Ms Finlay said that if the court decided only that these two sections were repugnant, and did not go on to deal with all other sections, neither the President nor the Oireachtas would have the benefit of the court's decision on questions which had been referred.
Mr Justice O'Flaherty said the court would have to grapple with a meaningless Bill and they would have to give a meaningless result.
Ms Finlay said if they did not decide on all sections, they were not discharging their constitutional obligation to decide whether other sections were repugnant.
Mrs Justice Denham said that the two Bills were dependent on each other. It was manifestly obvious the two sections were the same in both Bills.
The Chief Justice said that parts of the Bill as it stood referred to the Employment Equality Act, 1997, and "there is no such Act". How did they advise the President of the constitutionality of those parts? The Bill could not become law because two sections were unconstitutional. It was 80 per cent inoperable. If one section was unconstitutional then the whole Bill was repugnant.
Mr Justice Barrington said that in the present case they knew because of a previous decision as to whether the Bill was repugnant and they would not be giving a different decision on identical provisions. The fact that two sections were repugnant made the rest a moot.
Counsel arguing that only the two sections should be considered will make their submissions today.