The Government's plan to offer presidential pardons to IRA fugitives under an Anglo-Irish agreement to deal with up to 100 so-called "on the runs" cannot be challenged in court.
The pardons, to be given to between six and 10 IRA members who are wanted for paramilitary crimes in the State, will be awarded by President Mary McAleese under Article 13.6 of the Constitution.
However, the British government has decided it must produce legislation so that it can let 60 paramilitaries go free under licence, despite the danger that it will not get past the House of Lords.
Last night some legal sources privately argued that the Government's principal desire is to ensure that the killers of Det Garda Jerry McCabe are not given another chance to launch a legal challenge for their freedom.
Insisting that the legal course chosen was constitutional, the Government said it could not repeat the system used to release paramilitary prisoners after the Belfast Agreement.
Then, an eligibility board headed by the late senior counsel Eamon Leahy recommended the release of individual prisoners to the Cabinet, which then made the final decision. This time, an eligibility board will make an initial recommendation, though the final act will be taken by the President on foot of advice received from the Cabinet.
Therefore, it will be covered by Article 13.8 of the Constitution, ie: "The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions."
In January 2004 the Supreme Court finally ruled that the Government was entitled to deny the McCabe killers early release under the terms of the Belfast Agreement. The four, Michael O'Neill, Kevin Walsh, Pearse McAuley and Jeremiah Sheehy, had argued that they did qualify and that they had been discriminated against because almost 500 Republican and Loyalist prisoners had been released.
In his ruling on an application by Michael O'Neill, convicted of manslaughter, and John Quinn, who was convicted of conspiracy to commit a robbery at Adare, the then chief justice, Mr Justice Ronan Keane, said: "I am satisfied that this was a policy choice which it was entirely within the discretion of the Executive to make and could not be characterised as capricious, arbitrary or irrational."
Last night, a Department of Justice's spokeswoman said the right to remit or commute jail sentences can be delegated to the Government under the Constitution. "But the right to pardon is not delegable under the Constitution."