The President’s discretion

 

The decision by President Michael D Higgins to convene the Council of State on Monday for consultations on the Protection of Life During Pregnancy Bill is a sensible exercise of his constitutional prerogative on this difficult and controversial Bill. Article 26.1 allows that “The President may, 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.” Should he do so and the court finds the Bill repugnant to the Constitution then it cannot become law. If the court upholds the Bill, he must sign it and its constitutionality can never again be challenged – for some Bill supporters such protection against future challenge makes referral appealing.

This is a discretionary power relatively rarely exercised, and it has not been unusual for the Council of State to be summoned and the Bill then not referred on; Mary McAleese did not refer Bills on five of the eight times she summoned the council for Bill scrutiny.

The current Bill is unusual, however, in one particular respect. Unlike the other 15 Bills referred by Presidents to the court since 1940, it was enacted as a response to a specific request by the Supreme Court for a legislative framework to support a decision it had made, in this case the X case. In ruling on X, however, the court was not prescriptive on detail, giving the Oireachtas what lawyers would call a margin of appreciation on how to frame any legislation – it would be odd if the court now found that a Bill which had been drafted carefully, specifically with the court’s mandate in mind, had strayed beyond that remit. And there has been little in the expert legal discussion of the Bill to suggest that it has.

Gerry Whyte of the TCD law school has argued in these pages that although a number of issues may give rise to theoretical constitutional problems – time limits, the scope of conscientious objection, the absence of an appeal against the decision to grant an abortion, the issue of foetal abnormality, and even whether X is binding – most touch on rights that are by no means absolute and would seem to fall within the realms of the discretion legislators have. None would appear to raise sufficient constitutional doubts to make referral an imperative.

The President may well also be urged by the Chief Justice as a member of the Council of State not to refer on the Bill. Members of the judiciary are known not to be enamoured of the referral process. They find ruling on theoretical issues of constitutionality uncomfortable, prefering to decide issues on the basis of a concrete case. In the circumstances, a decision by the President to sign the Bill without reference to the court would appear reasonable and a proper exercise of his discretion.

The Irish Times Logo
Commenting on The Irish Times has changed. To comment you must now be an Irish Times subscriber.
SUBSCRIBE
GO BACK
Error Image
The account details entered are not currently associated with an Irish Times subscription. Please subscribe to sign in to comment.
Comment Sign In

Forgot password?
The Irish Times Logo
Thank you
You should receive instructions for resetting your password. When you have reset your password, you can Sign In.
The Irish Times Logo
Please choose a screen name. This name will appear beside any comments you post. Your screen name should follow the standards set out in our community standards.
Screen Name Selection

Hello

Please choose a screen name. This name will appear beside any comments you post. Your screen name should follow the standards set out in our community standards.

The Irish Times Logo
Commenting on The Irish Times has changed. To comment you must now be an Irish Times subscriber.
SUBSCRIBE
Forgot Password
Please enter your email address so we can send you a link to reset your password.

Sign In

Your Comments
We reserve the right to remove any content at any time from this Community, including without limitation if it violates the Community Standards. We ask that you report content that you in good faith believe violates the above rules by clicking the Flag link next to the offending comment or by filling out this form. New comments are only accepted for 3 days from the date of publication.