Granting Supreme Court consultative powers is a thorny issue


ANALYSIS:The question is posed regularly: why doesn't the Government consult the Supreme Court? Because no mechanism exists for it to do so , writes Oran Doyle

IN THE Irish constitutional system, the three organs of government - the Oireachtas, the Executive and the Courts - must act in accordance with the Constitution.

The courts have a power to review the constitutionality of all laws and actions of the Executive. These powers of judicial review significantly circumscribe the scope for action of both the Executive and the Oireachtas.

The courts do not have an independent supervisory role, however, and can only address controversies that are brought before them by aggrieved litigants. Therefore, except under the Article 26 procedure outlined below, the Oireachtas and the Executive only receive judicial notification that they have acted unconstitutionally after a controversy has arisen and been resolved by the courts.

This has prompted some calls for the Oireachtas or the Executive to be able to refer matters to the courts in advance in order to identify constitutional difficulties before they arise.

The Constitution permits neither the Oireachtas nor the Executive to refer a proposed law or action to the Supreme Court for an anticipatory ruling as to its constitutionality. However, Article 26 of the Constitution grants the President a discretion, before she signs a Bill into law, to refer that Bill to the Supreme Court for a ruling on its constitutionality.

The Supreme Court, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the court to contest the constitutionality of the Bill, must decide whether the Bill is repugnant to the Constitution.

If the Supreme Court decides that the Bill is unconstitutional, the President must decline to sign the Bill. If the Supreme Court decides the Bill is constitutional, the President must sign the Bill into law. That Act (or the provisions of the corresponding Bill on which the court ruled) then has immunity and can never be constitutionally challenged by a litigant in the future.

Outside of the narrow context of Article 26, no State body can refer a matter to the Supreme Court for an anticipatory ruling on constitutionality. If it were thought desirable to provide such a reference power, it would be necessary to amend the Constitution. Experience of the Article 26 procedure suggests a few reasons why one might be cautious of such a development.

First, it is not possible to introduce factual evidence in Article 26 proceedings. As a result, the Supreme Court must address legal questions in the abstract.

The court has expressed concerns about this limitation, but has also expressed reservations about whether - given the short time period allowed under Article 26 - it would even be possible to determine complex factual issues. A new review procedure could allow for factual matters to be considered and could extend the time limit. Nevertheless, in the absence of aggrieved litigants, the question before the court would remain abstract. Even with the greatest of effort on the part of lawyers and the court, it is impossible to anticipate the legal issues that arise when law meets the vicissitudes of real life. Any court decision on a reference procedure would almost certainly be made without consideration of some legal issues.

This difficulty is exacerbated by a second feature of the Article 26 procedure: the constitutional immunity granted to legislation upheld by the court. This means that, unlike in ordinary constitutional litigation, a decision made under the Article 26 reference procedure without consideration of a particular issue cannot be reopened when that issue is brought to light by another aggrieved litigant.

Therefore, the abstract nature of a reference procedure may seriously prejudice the concrete rights of a future litigant. Again, it would be possible to provide that a reference procedure would not confer constitutional immunity on the law or action considered. But that might defeat the whole purpose of the reference procedure itself.

It is perhaps for these reasons that the attrition rate under Article 26 references is relatively high. The Supreme Court has held the legislation repugnant in approximately half of all Article 26 references.

This is far higher than in the normal course of litigation where declarations of unconstitutionality are rare.

The tenor of the court's reasoning in several references suggests that the court is more likely to hold legislation unconstitutional when the effect of its decision is absolute immunity for legislation considered only in the abstract.

If this dynamic were to apply in any new reference procedure, the usefulness of that procedure for resolving constitutional doubts might - at least from the perspective of the Oireachtas and Executive - be undermined.

The amendment of the Constitution to provide for a new reference procedure is an interesting suggestion that merits careful consideration. The experience of the Article 26 procedure suggests we should proceed with caution.

• Oran Doyle lectures in constitutional law in Trinity College Dublin