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President's role in legislation

  • 24-10-2020 11:37am
    #1
    Vetch
    Closed Accounts Posts: 422 ✭✭


    This is a question that I wondered about after reading about the mother and baby homes debacle.

    If I understand it correctly, the President considers if proposed Irish law is compatible with the constitution. Is compatibility with EU law something that has to be considered by the President when considering when Irish law is constitutional?


Comments

  • #2
    coylemj
    Registered Users Posts: 25,326 ✭✭✭✭coylemj


    This is the relevant section in Bunreacht ne hEireann...

    26.1.1 The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

    If the President decides to send it to the Supreme Court, this section will apply...

    26.3.1. In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill.

    So if the SC finds that any part of the bill is repugnant to the Constitution, the President will not sign it i.e. the entire bill falls. It's then up to the Oireachtas how to proceed but the bill, as passed, is now dead in the water. If the SC finds that no part of the bill is repugnant to the Constitution then the President must 'as soon as may be' sign it into law (26.3.3). Note that in this type of case, the SC only hands down one judgement, they don't reveal how many judges were for one side or the other.


  • #3
    ohnonotgmail
    Registered Users Posts: 40,122 ✭✭✭✭ohnonotgmail


    coylemj wrote: »
    This is the relevant section in Bunreacht ne hEireann...

    26.1.1 The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.

    If the President decides to send it to the Supreme Court, this section will apply...

    26.3.1. In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill.

    So if the SC finds that any part of the bill is repugnant to the Constitution, the President will not sign it i.e. the entire bill falls. It's then up to the Oireachtas how to proceed but the bill, as passed, is now dead in the water. If the SC finds that no part of the bill is repugnant to the Constitution then the President must 'as soon as may be' sign it into law (26.3.3). Note that in this type of case, the SC only hands down one judgement, they don't reveal how many judges were for one side or the other.

    I wasn't aware that was the case. Any idea of the reasoning behind it?


  • #4
    coylemj
    Registered Users Posts: 25,326 ✭✭✭✭coylemj


    ohnonotgmail wrote: »
    I wasn't aware that was the case. Any idea of the reasoning behind it?

    I misled you when I said 'in this type of case'. In fact the SC only ever hands down one decision when it's asked to decide if a bill or law is in conformance with the Constitution.

    As to the 'reasoning' behind it.... it's a binary so there probably isn't much point in two or three judges reading out their dissenting opinions when it comes down to a 'yes' or 'no' based on what the majority votes for.

    In the case of bills referred by the President, this is the relevant section ....

    26.2.2 The decision of the majority of the judges of the Supreme Court shall, for the purposes of this Article, be the decision of the Court and shall be pronounced by such one of those judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.

    A case where an existing law is being tested is covered here....

    34.4.5 The decision of the Supreme Court on a question as to the validity of a law having regard to the provisions of this Constitution shall be pronounced by such one of the judges of that Court as that Court shall direct, and no other opinion on such question, whether assenting or dissenting, shall be pronounced, nor shall the existence of any such other opinion be disclosed.


  • #5
    Creol1
    Registered Users Posts: 554 ✭✭✭Creol1


    Vetch wrote: »
    This is a question that I wondered about after reading about the mother and baby homes debacle.

    If I understand it correctly, the President considers if proposed Irish law is compatible with the constitution. Is compatibility with EU law something that has to be considered by the President when considering when Irish law is constitutional?

    That's an interesting question because in a conflict of laws between national laws, even constitutional law, and EU law, EU law has supremacy. While the constitution is quite clear on its face that the constitutionality of a Bill referred under Article 26 is solely for the Supreme Court and that a decision upholding it renders it immune from constitutional challenge, it would not necessarily be immune from challenge before the CJEU.


  • #6
    Peregrinus
    Registered Users Posts: 26,052 ✭✭✭✭Peregrinus


    Vetch wrote: »
    This is a question that I wondered about after reading about the mother and baby homes debacle.

    If I understand it correctly, the President considers if proposed Irish law is compatible with the constitution. Is compatibility with EU law something that has to be considered by the President when considering when Irish law is constitutional?
    The President's power is quite limited. He can "refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof". If he does refer the Bill to the Supreme Court, he may not sign the Bill until the Supreme Court has announced it's decision.

    He has no power to refer a Bill to the courts for a decision as to its compatibility with EU law (and the courts have no jurisdiction to consider whether a not-yet-enacted Bill is compatible with EU law). The question of compatibility won't be litigated until after a Bill is enacted, and somebody affected by it then raises the issue in court proceedings. The question woul normally arise in the first instance in the Irish courts, and might be resolved there without any reference to the CJEU. But it could arise in the CJEU if, e.g., the Commission took action against Ireland for failure to implement the relevant EU law.


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  • #7
    Claw Hammer
    Registered Users Posts: 6,155 ✭✭✭Claw Hammer


    ohnonotgmail wrote: »
    I wasn't aware that was the case. Any idea of the reasoning behind it?

    Dissenting judgements are sometimes used in later cases in an attempt to persuade the later court to refine its view or distinguish the earlier case from the later one. This sometimes leads judgements to be distinguished out of existence. It is considered undesirable that there will be question marks over the constitutionality of any law. Legal certainty is preferred to a situation where there are potential challenges lurking. It also works in the case where the bill is deemed unconstitutional where it is not desired that the dissenting judgement would be used to try and reintroduce the impugned bill with slight modifications in an attempt to secure a majority on the second attempt.


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