Dr. David Kenny:

The first issue was about laying out specific grounds. I have expressed my view that it would be unworkable. As I do not claim to have knowledge of every legal regime in the world, I state very tentatively my belief about countries that do lay out grounds. I am aware of only a few. Swaziland and Kenya are two. They allow the Legislature to legislate on the matter; therefore, they have specific constitutional grounds, but there is t he possibility for the Legislature to set out others. I shall make my next comment very tentatively as I do not claim to be an expert on the constitutional law of the places in question. I believe Somalia has limited grounds, without an exclusion. It is a necessity provision, but I do not know how it has worked in practice. To my knowledge, I do not believe there is any European country that sets out specific grounds for access, but, again, I plead only partial knowledge on that question. I am very happy to be corrected and Ms de Londras may know more than me.

The second question was about whether nearly any outcome would allow a constitutional challenge. One of the points we have all been making is that we should perhaps never say never in this circumstance. As my two colleagues said, certainty is unachievable. One could get close to excluding the possibility of a challenge to legislation if one almost expressly stated the Judiciary shall not invalidate a Bill passed for this purpose by reason of constitutional rights. That might exclude a great many possible challenges on the grounds that the regime was too liberal or too conservative. Again, there is always a possibility that someone could find a way. I never want to say "never", but that is the option that comes closest. I do not believe it is quite as unachievable as the Deputy's comments suggested, but lots of options leave open the possibility.

On whether I am concerned about the prospect, it is ultimately for the people to decide in a referendum and their politicians in offering the referendum to them whether it is worthwhile. One has to decide whether one believes the Judiciary should be intervening in this particular area and whether it would be better, for any reason, to have it decided with finality by the Legislature. I do not have a concern about the idea that the people and politicians should get to decide. That is the way our system works and the check on judicial power is ultimately that we can change the Constitution and, if we want, exclude things from the hands of judges. As the check is with the politicians and the people, I do not have a reservation in that regard. As to whether it would be appropriate in this case, I will leave it to other minds to decide.