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Opinion Those criticising the President for signing Bills into law are overestimating his power

By not using Article 26, President Higgins leaves the door open for future constitutional challenges.

FOOTAGE HAS RECENTLY emerged of President Michael D Higgins being subjected to verbal abuse by anti-water charge protesters in Finglas, Dublin. It would appear that these protesters are angry at the President for signing the Water Services Act 2013 into law.

However, what other options were available to him? Are the protesters misconstruing the role of the President?

An Article 26 Reference?

Under Article 26 of the Irish Constitution, the President may, prior to signing a bill into law, meet with his Council of State and refer the Bill to the Supreme Court to test its constitutionality. If the Bill is found to be unconstitutional, the President must decline to sign it and so it never becomes law. Thus President Higgins could have made use of his power under Article 26.

An Article 26 reference is not, however, without its pitfalls. If, on the other hand, the Bill is found to be constitutional, the President must sign it into law. However, unlike other pieces of legislation, Article 34.3.3° states that an act that has received the stamp of constitutionality after an Article 26 reference can never be challenged again. This anomaly was inserted by the Second Amendment of the Constitution, during the three years after the enactment of the Constitution in which it could be amended by ordinary legislation without the need of a referendum. As a result, the Article 26 procedure is rarely used. Since the enactment of the Constitution in 1937, there have been only 15 references; the most recent being Mary McAleese’s referral of the Health (Amendment) (No 2) Bill in 2005.

Hypothetical arguments don’t make good law

Furthermore, Article 26 procedures are very unusual court cases in the sense that two teams of court-appointed lawyers are given 60 days to come up with hypothetical arguments for and against the constitutionality of the bill. There are no real-life facts to go on; no real people who can point to a concrete example of where the application of a law has infringed upon their constitutional rights. As a result, it is foreseeable that the lawyers involved may not think of every conceivable scenario that may arise that could put the constitutionality of an act into question.

Sometimes, insulating a piece of legislation from future constitutional challenge is actually a reason for using Article 26. This was the motivation behind Mary Robinson referring the Regulation of Information (Services out-side the State for Termination of Pregnancies) Bill in 1995. This Act, which made it lawful to provide information pertaining to abortions abroad was thus insulted from inevitable and repetitive challenges from anti-abortion campaigners.

Article 26 and the Water Services Act 2014

Thus if President Higgins were to refer the Water Services Bill to the Supreme Court and its constitutionality were upheld, this act could never be challenged again. By not using Article 26, the door remains open for future constitutional challenges.

This is not to say, however, that there is a good chance that the Act is unconstitutional. Indeed, Irish courts are generally quite reluctant to get involved with revenue-related powers of government, considering them to be areas more appropriate for the political branches to decide. Of course, courts can inquire into breaches of rights; however, the weak protection afforded to socio-economic rights in the Irish Constitution means that this would be particularly problematic to show in the context of the Water Services Bill. The Constitutional Convention did pass a resolution calling for greater constitutional protection for such socio-economic rights; however, the current government has declined to act upon this suggestion.

President Higgins thus had no real option but to sign the Water Services Bill into law. To refer it to the Supreme Court using Article 26 would most probably have been a futile exercise. Furthermore, this would have insulated the Act from any future challenges to its constitutionality, resulting in this legal avenue for anti-water charge protestors being cut off.

Dr Alan Greene is a lecturer in law at Durham Law School where he teaches and researches public law and human rights. He holds BCL, LLM and PhD degrees from UCD School of Law.  You can read more about his research here: tweets @Alangreene8.

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