Under the Constitution, the President is obliged to consult the Council of State on a range of matters. However, at the end of the day it is she who has absolute discretion to decide whether to refer a Bill to the Supreme Court for a decision on its constitutionality.
The Council of State consists of the Taoiseach, the Tanaiste, the Chief Justice, the President of the High Court, the cathaoirligh of the Dail and Seanad, former presidents, taoisigh, Chief Justices, and up to seven others appointed directly by the President.
It last met in October last year, when its approval was sought for Mrs McAleese's address to the joint Houses of the Oireachtas. This is the first time this council has been convened to consider the referral of Bills to the Supreme Court.
The Council of State has been summoned to consider Bills about 15 times since the Constitution was adopted. On three of these occasions, the President of the day decided not to refer the Bills - the Health Act of 1947, the Income Tax Act of 1967 and the Fisheries Amendment Act of 1991. However, one section of the Income Tax Act was criticised, and the Government amended it accordingly.
Mrs Robinson last convened it to seek its views on the Equal Status Bill and the Employment Equality Bill, 1997, shortly before she left office. They were central to the Rainbow Coalition's raft of anti-discrimination legislation and sought to eliminate discrimination on nine grounds including gender, race, religion, disability and membership of the Travelling community in employment and in the provision of services.
They were referred to the Supreme Court, where both were found to be unconstitutional on three grounds. One was that the requirement that employers and service-providers ensure that their premises were accessible to people with disabilities might impose an unreasonable burden on them, and conflicted with the property protections in the Constitution. They were also found unconstitutional on the grounds that they established vicarious liability, and on a technical ground concerning the onus of proof.
Mrs Robinson also referred the Abortion Information Bill to the Supreme Court, where it was upheld, and the Matrimonial Property Bill of 1993. This was found to be unconstitutional.
According to one senior barrister, lawyers are sometimes not happy about the referral of whole Bills to the Supreme Court. It means that they are considered in the abstract, when the whole common law tradition is based on concrete, specific cases. The Supreme Court is expected to anticipate every possible case which might arise.
If they are found to be constitutional and upheld, they can never again by challenged in the Supreme Court.