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Explainer: Why Michael D Higgins signed water charges into law

The president’s hands were essentially tied by the Constitution.

Image: Sam Boal/Photocall Ireland

SOME OF THOSE who called on President Michael D Higgins to refer the Water Services Bill to the Council of State have criticised his decision to rubber-stamp the legislation.

A statement issued from Áras an Uachtaráin yesterday said that Higgins had signed the Bill into law after giving “careful consideration to all aspects” of it and the submissions he had received.

On Christmas Eve, 49 TDs and senators wrote to Higgins asking him to refer the controversial Bill to the Council of State and the Supreme Court to test its constitutionality.

Independent TD Mattie McGrath today labelled Higgins’s decision as “a wasted opportunity for scrutiny”.

To my mind the President has lost a valuable opportunity to show the Irish people that those in the highest positions of power would not impose these charges without every avenue for legislative scrutiny being exhausted first. This Water Services Bill is bad law. It does not have the consent of the people and is mired in political difficulty.

McGrath added that members of the Seanad who “enabled the Government to pass this legislation through the Oireachtas also facilitated this lost opportunity”.

Sinn Féin Senator David Cullinane said the Government is “not listening” to people’s concerns about water charges and “don’t understand quite how serious this situation is”.

Articles 26 and 27

There had been suggestions that those opposed to the Bill would request the President put the issue to a referendum under Article 27 of Bunreacht na hÉireann, but this would not be possible as the Bill has already been passed through both the Dáil and Seanad.

Sinn Féin sent a letter to Higgins asking him to utilise Article 26 which allows the President – after consulting with his Council of State – to refer a bill to the Supreme Court to test its constitutionality.

c of state

Yesterday’s statement highlighted how Higgins’s hands were essentially tied in relation to Article 27, which applies to “any Bill … which shall have been deemed, by virtue of Article 23 hereof, to have been passed by both Houses of the Oireachtas” – as is the case with the water charge legislation.

The President did have an opportunity, under Article 26, to consult the Council of State on whether or not the Bill should be put to the Supreme Court to decide if it is “repugnant to the Constitution”.  However, he did not deem this necessary.

Yesterday’s statement added:

Article 27 of Bunreacht na hÉireann applies only where Bills have been deemed by virtue of Article 23 of Bunreacht na hÉireann to have been passed by the Houses of the Oireachtas. Article 27 of Bunreacht na hÉireann therefore did not apply in this case. The President gave consideration to the Bill, taking into account Bunreacht na hÉireann including Article 26 and the submissions received.

Higgins’s decision was criticised on social media and led to a protest outside Áras an Uacharáin yesterday afternoon.

Clarification: An earlier version of this article stated that President Higgins had an opportunity to put the Water Services Bill to a Referendum. This was incorrect: he had the opportunity to consult the Council of State on whether or not the Bill should be put to the Supreme Court to decide if it is ”repugnant to the Constitution”. 

President Michael D Higgins has signed the Water Services Bill

49 TDs and senators in eleventh-hour appeal to Michael D over Water Bill

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Órla Ryan

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