Dr. David Kenny:

I will answer as much as I can and if I forget anything the Senator should feel free to remind me. I agree entirely with Mr. John O'Dowd's statement that anything before 1983 would not be binding. I referred to it in the paper as obiter comments in so far as the court was commenting in passing on something not directly necessary to decide. Moreover, in the event that they were being considered after some sort of change, one would have to consider what would repeal have done in any event. Even if they were binding, they could not have been binding in exactly the same way, given that the Constitution had been changed and changed again in the meantime. One would have to consider what those changes would actually do which is where the uncertainty comes from. It is created by that doubt.

On whether certainty is the most important value, it is largely for this committee to decide where the values fall. The committee has to consider what a level of certainty is in the context of the issue which it is considering. Is there anything in particular about this issue that warrants a particular level of certainty and, as the Citizens' Assembly apparently felt, warrants a level of certainty that protects it from judicial intervention. It is for the committee to decide if there is something specific about this context which would suggest that.

In terms of a general view, it is obviously an issue where judicial intervention has caused a great deal of public controversy and major political controversy in various places around the world. That could be something that the committee considers relevant but that is entirely a matter for its consideration.

Professor de Londras discussed the repeal with specific grounds, and I agree with her on that. She described it as cumbersome and impractical and that is exactly right. It would require a level of detail that is incredibly difficult to do in constitutional text or some other constitutional mechanism. It would lock in something that would require substantial elaboration and leave no room to adapt it on the ground or change it if a problem arose. It is very hard to do from a constitutional law perspective.

On judicial exclusion, I was merely listing examples and was not giving an equivalence when I spoke about emergency powers. I was just noting several instances where it happens, so I do not want to suggest an equivalence. For a softer example, Article 45 excludes a variety of socio and economic rights and entitlements from judicial consideration. It is not merely the most extraordinary considerations where the Constitution allows for certain things to be removed from judicial competence, for whatever reasons seem right to the politicians proposing an amendment and the people voting on it. It is for the legislators and, ultimately, for the people to decide if something should be included in the scope of judicial intervention.