Billy Kelleher (Cork North Central, Fianna Fail) | Oireachtas source

At the risk of being repetitive, it is nice to have lawyers give us advice for free from time to time.

We will keep asking the same questions.

Last week, Ms Justice Laffoy said that whatever we do, we must try to bring legal certainty to the issue. She was very clear on that. Of course, the difficulty is what legal certainty is and when would one arrive at it. The Constitution only states that the Oireachtas legislates and the courts interpret the intention of the Legislature. Of course, in the this context the reason we have had interpretations is because we have had no legislation. It was the X case which led to the interpretation of the Constitution and why we are in a particular bind in this context.

We may be complicating the issue in terms of the legal and constitutional aspects, such as, for example, publishing legislation with a repeal or amend provision and asking the people to adjudicate on the Constitution while at the same time assuming that legislation is published in tandem which ensures they can feel comfortable amending or repealing the amendment. It may be the case that legislation would be published and run in tandem with a constitutional referendum and the people would decide to change the Constitution because they are comfortable with the legislation. If the legislation is subsequently interpreted by the courts and deemed to be ineffective or not to interpret the original constitutional change, would the Legislature be very slow to change that legislation given that it ran in tandem with a constitutional amendment? I ask for more clarity on that issue.

Deputy Daly referred to the fact we might be complicating matters. We complicated this issue because we had an insertion, Article 40.3.3°, in 1983 but the Oireachtas never legislated subsequently. We had a vacuum for many years. It was not until the Supreme Court ruling in the X case that Mr. Justice McCarthy pointed that out. We failed to legislate thereafter. We have had a lacuna in the law while the courts were, I imagine, based on what they said, begging for the Oireachtas to legislate. The Oireachtas has not had a great record in this particular area.

From that point of view, if we are to ask the people to amend, replace or repeal on the basis that the Oireachtas may legislate, we need to bear in mind that our record to date has not been great. Is it necessary for us to say that the Oireachtas must legislate but that can be interpreted by the courts?