Council of State meeting on abortion Bill ends

President Higgins must decide by Wednesday if Bill should be referred to Supreme Court

The meeting of the Council of State convened by President Michael D Higgins to discuss the Protection of Life During Pregnancy Bill has ended after more than three hours.

The meeting, attended by 21 members of the Council, began in in Áras an Uachtaráinat about 3.15pm following a brief photocall in the main drawing room of the President’s residence in the Phoenix Park. It ended at 6.45pm.

The meeting was called after President Higgins invoked the powers available to him under Article 26 of the Constitution to convene the Council of State ahead of him taking a decision on whether or not to refer the Bill to the Supreme Court to ascertain if it is keeping with the Constitution.

The Bill completed its passage through the Oireachtas on Tuesday night of last week, when the Seanad voted in favour of the legislation. President Higgins, who received the document on Wednesday of last weeks, will have seven days to make a decision on referral and that process must be complete by Wednesday.


Three of the Council were absent: they were former president Mary Robinson, and former taoisigh Albert Reynolds and John Bruton.

Members of the Council began arriving at the front entrance of the Aras just before 2pm. The Council comprises serving and former office holders including former president Mary MacAleese, Taoiseach Enda Kenny, Tanaiste Eamon Gilmore; serving and former members of the judiciary including Chief Justice Mrs Justice Susan Denham, the Attorney General Maire Whelan, and seven members appointed by the President.

Three former taoisigh are also in attendance; the 93 year old Liam Cosgrave; Bertie Ahern and Brian Cowen. Mr Ahern and Mr Cowen both arrived using their own transport. Mr Ahern walked up the driveway to the reception area and Mr Cowen was transported in an OPW courtesy bus. Also in attendance today is the former chief justice, Thomas Finlay.

Article 26.1 states: “ The President, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bills is or are repugnant to this Constitution.”

A total of 15 Bills have been referred since 1940. The last Bill referred to the Supreme Court was the Nursing Homes Bill in early 2005. The Bill proposed to prevent retrospective payments to residents of nursing homes and other institutions and was referred by then president Mary McAleese. The Supreme Court ruled the Bill was repugnant to the Constitution.

The convening of the Council of State to discuss a Bill is a relatively rare phenomenon. It occurred only eight times during the 14-year presidency of Mary McAleese. This is the first time that President Higgins has called a meeting of the Council of State using the powers available to him under Article 26.

Once a Bill is found to be in keeping with the Constitution after being referred under the Article 26 provision, the legislation can never be challenged on constitutional grounds again by a citizen in the courts.

The meeting is expected to last for several hours with key contributions expected from Attorney General Maire Whelan and, possibly, from Mr Justice Nicholas Kearns, president of the High Court.

Those in attendance today are: Taoiseach Enda Kenny; Tanaiste Eamon Gilmore; Chief Justice Susan Denham; Ceann Comhairle Sean Barrett; Cathaoirleach of the Seanad Paddy Burke; President of the High Court Nicholas Kearns; Attorney General Maire Whelan; former president Mary McAleese; former taoiseach Liam Cosgrave; former taoiseach Bertie Ahern; former taoiseach Brian cowen; former Chief Justice Tom Finlay; former Chief Justice Ronan Keane and former Chief Justice John Murray. The seven members appointed by the President in attendance are: Michael Farrell; Prof Deirdre Heenan; former Supreme Court justice Catherine McGuinness; Ruairi McKiernan; Sally Mulready; Prof Gearóid Ó Tuathaigh and Prof Gerard Quinn.