President to decide today on referring legislation


PRESIDENT MARY McAleese will decide today whether to refer two Bills to the Supreme Court following her consultation with the Council of State last night.

The President met 19 of the 22-member council for almost three hours. The meeting began shortly after 6pm and broke up shortly before 10pm.

A spokeswoman said the President would make an announcement on the matter today.

The two Bills on which the President has sought the views of the council are the Defamation Bill and the Criminal Justice (Amendment) Bill. Both were passed by the houses of the Oireachtas earlier this month.

The Criminal Justice Bill has been the subject of heated controversy, particularly in relation to the changes it introduces – referring all cases relating to organised crime to the non-jury Special Criminal Court.

Some 133 lawyers signed a letter to The Irish Timesquestioning its constitutionality. It also had a stormy passage through the Dáil and Seanad amid claims from the Opposition that the debate on such fundamental changes were being guillotined by the Government.

Amendments to the Defamation Bill providing for prosecutions arising from blasphemy also proved contentious and were initially rejected by the Seanad on an electronic vote, before being passed when a walk-through vote was called.

Article 26 of the Constitution provides that the President may consult with the Council of State before deciding to refer a Bill to the Supreme Court for a ruling on whether the entire Bill, or parts of it, are repugnant to the Constitution.

While there is a requirement for her to consult the council, the decision on referring the legislation is taken by the President alone.

No indications have been given as to the nature of the concerns over the two Bills which prompted the President to consult the council.

A spokeswoman said the usual format entailed the President introducing the Bills to the council and outlining her own concerns. This would be followed by a discussion where every member is invited to give their opinion on the legislation.

If the President decides not to refer either of the Bills, she will sign them into law.

If, however, she decides to refer one or both of the Bills, warrants are prepared and sent to Chief Justice John Murray and Taoiseach Brian Cowen, as well as Ceann Comhairle John O’Donoghue and the Cathaoirleach of the Seanad, Pat Moylan. The warrants are delivered by hand.

In the past, the President has arrived at her decision on referral quickly.

Once a referral has been made, the Supreme Court will have 60 days to determine the constitutionality of the Bill.

The Chief Justice will convene the Supreme Court to appoint sets of counsel to prepare and present cases on both sides of the argument.

The court will sit at a later period within the 60-day timeframe to hear the arguments before adjourning to allow it time to deliver its rulings.

As the referral is a constitutional one, no fewer than five judges must sit and only one judgment is delivered.

If there is minority dissent within the court, neither its existence nor the nature of the dissent is made public.