President Catherine Connolly is meeting the Council of State at Áras an Uachtaráin on Monday to consult with it on the International Protection Bill.
What is the Council of State? It sounds very grand.
It does sound grand, but it is only an advisory body to the President. It’s not, perhaps, as important as it sounds. The President must consult the Council before she exercises some of the powers she has under the Constitution. The most frequently used of these powers is when the President, who must sign a bill to bring it into law, instead refers a bill that has been passed by the Oireachtas to the Supreme Court to test its constitutionality. This is an important, though infrequently used power contained in article 26 of the Constitution: during his 14 years in the Áras, Michael D Higgins referred only one bill.
Can the President block a law she doesn’t agree with?
No. Article 26 empowers the President – after consulting with the council – to refer a bill to the Supreme Court which then adjudicates on whether it is compatible with the Constitution. It’s the court’s decision – not the President’s. If the court decides the bill does not violate the Constitution, it can never be challenged again in legal proceedings – which is one of the reasons why Presidents have used the power sparingly. It has been argued that it is better for a law to be challenged after it has been implemented and there are observable facts on how it works, rather than to be considered in the abstract before it comes into force.
Who is on the Council of State?
At present, there are 25 members – seven of whom have been recently appointed by President Connolly as her personal nominees, while the others are members of the council because of the position they hold. These are divided between current and former office holders.
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Give me the list, so.
The current Taoiseach and Tánaiste, Micheál Martin and Simon Harris along with the Ceann Comhairle of the Dáil Verona Murphy and the Cathaoirleach of the Seanad Mark Daly are members. So is the Attorney General Rossa Fanning. There are three judicial members – the heads of the three higher courts: Chief Justice Donal O’Donnell, President of the Court of Appeal Caroline Costello and President of the High Court David Barniville. Three former chief justices are also members: Ronan Keane, Susan Denham and Frank Clarke, as are former taoisigh Bertie Ahern, Brian Cowen, Enda Kenny and Leo Varadkar, and former presidents Mary Robinson, Mary McAleese and Michael D Higgins. The President’s recently announced nominees are Colin Harvey, Kathleen Lynch, Donncha O’Connell, Conor O’Mahony, Fionnuala Ní Aoláin, Linda Ervine and Ciarán Ó hÓgartaigh.
Looks like a long meeting?
Perhaps. The convention is that the President goes round the table and asks for views and a discussion ensues. There are no votes. The President then considers the discussion and makes her decision on her own. She has until Wednesday evening to decide. In the past, presidents have often consulted with the council and then decided not to refer the bill to the Supreme Court. Michael D Higgins, for example, assembled the Council four times to advise on possible referrals, but only referred one bill.
What is the law being discussed today?
It’s the International Protection Bill, which was passed by the Oireachtas last week. It’s a big piece of legislation which adopts many of the provisions of the EU migration pact, which the Government signed up to in 2024. Opposition parties objected to aspects of it for different reasons, but also to the speed with which it was pushed through the legislative process. NGOs such as the Irish Human Rights and Equality Commission have also raised questions about the bill.
Essentially, the law is intended to tighten up and restrict asylum processes, reacting to public concerns about migration which have inflamed politics in some EU countries in recent years. Those, however, are policy questions. The only question for the Council of State – and perhaps for the Supreme Court in due course – is whether the provisions of the bill are compatible with the rights and processes protected by the articles of the Constitution.
[ International Protection Bill passed in Dáil vote after three-hour debateOpens in new window ]
