Attention turns to Áras as President awaits abortion Bill

The Protection of Life During Pregnancy Bill cleared another hurdle with its passage through the Seanad last night, but there could yet be a few turns on the road before the controversial Bill becomes law.

This morning, the Oireachtas Bills Office will print the document on vellum, cross-check it against the version approved by both Houses and deliver it to the clerk of the Dáil. It will then be handed over to members of the Defence Forces, who will be charged with delivering the final text to Áras an Uachtaráin.

Once President Michael D Higgins receives the Bill, the clock starts ticking on a seven-day window in which he must decide whether to sign it or exercise one of the few discretionary powers he
enjoys by referring it to the Supreme Court to test its constitutionality.

Under article 26 of the Constitution, the President is entitled to refer the Bill to the Supreme Court after consultation with the Council of State, whose members include current and former senior office-holders as well as seven individuals chosen by the President himself.

Although the President is required to consult the Council of State before referring a Bill to the court, the decision on referral is a matter for his sole discretion. And if he does refer the Bill and it is then approved by the Supreme Court, it will be immune to legal challenge.

Referral provision
Presidents have tended to use the council sparingly. Since the Constitution came into being in 1937, it has met 26 times to discuss whether to send a Bill to the Four Courts, with the president opting to invoke the referral provision in 15 of those cases. Higgins's two immediate predecessors used the mechanism more often than previous office-holders. Mary Robinson convened it six times, signing two of the Bills without referral and sending the other four to the judges (three were struck down).

Over her two terms, Mary McAleese summoned council members to discuss eight pieces of legislation. Of those, she signed five without referral and sent three to the Supreme Court. The only one of those that was struck down was a 2005 Bill introduced by the government to prevent retrospective compensation payments to residents of nursing homes.

Sixty days
If Dr Higgins decides to refer the Bill, the Supreme Court
will have 60 days to decide on its constitutionality. On previous occasions, the chief justice has quickly convened the court to appoint sets of barristers to prepare and present cases on both sides of the argument.

No fewer than five judges must sit for a referral case, and the court is required to issue just one judgment.

Politicians tend to be more enthusiastic than lawyers about article 26 referrals.

Whereas in normal cases judges are asked to weigh a
law against the facts of a specific scenario, in article 26 referrals the questions are entirely abstract, and they must decide without knowing what social, economic or other consequences the Bill might have.

The one-judgment rule, while it has the advantage of forcing the court to speak with a collective voice and shields individual judges from improper influence or pressure, also presents some problems in that it can elide nuance and obscure the variety of views on a given court. History shows that dissents can turn out to be more important than majority judgments.

One of the most sensitive issues is the fact that a Bill approved by the court under article 26 is immune from further challenge.

Supporters of this provision say there are some fundamental issues on which doubt cannot be allowed, and where it’s desirable to have indefinite certainty that a law will remain in place.

Against that, critics point out that laws can have unforeseen consequences and that the rule freezes laws that should be open to revision as circumstances and attitudes change over time.