Sir, – Your recent editorial regarding the Council of State is quick to point out some of the well-known limitations with the process of reviewing legislation before it becomes law by the Supreme Court (“The Irish Times view on the Council of State: what’s the point?” Editorial, April 23rd).
However, despite those limitations, advance review of Bills can help weed out patently unconstitutional Bills before they become law. Once a Bill is enacted and starts to create legal consequences, it can be very hard to unwind those consequences, even if legislation is later found to be unconstitutional, which often might not be for years, or even decades. Many individuals might suffer the ill effects of a law that could have been more easily prevented from reaching the statute books in the first place.
The granting of immunity from challenge of reviewed legislation should be removed; however, its effect is somewhat overstated. In a normal case with actual parties, if a piece of legislation is upheld by the Supreme Court, the court would be unlikely to rule in a different manner at a later date, unless a claimant could demonstrate that their case was materially different. While this is not immunity, it is not a straightforward process to ask a court to reverse or depart from a previous ruling.
When the Constitution was enacted in 1937, advance review of Bills and the Council of State were novel and innovative tools, and they can continue to play a useful role in our constitutional order. Any debate on how they can be improved to reflect today’s demands is to be welcomed. – Yours, etc,
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NIALL FITZGERALD,
Dublin 4.
