Dr. Conor Casey:

On the first question, I think the Supreme Court did not decide either way in the abstract on this intensely difficult constitutional question. In the absence of a definitive judgment on that point, it was not treated or argued. We have to resort to piecing together an interpretation based on text, structure, underlying values and other obiter persuasive authority. I do not think it addressed it either way. If the Oireachtas were to legislate, I would emphatically agree with my colleagues that a presumption of constitutionality would attach.

Not only that, in the Fleming case the court reminded us that in constitutional challenges, the burden of disproving or displacing the presumption of constitutionality is on the challenger. In some constitutional systems, such as Canada I think, someone can bring an arguable claim and it is for the state to defend the burden of proof. However, in Ireland it is actually on the applicant, making it even harder. The standard presumptions and different doctrines would be engaged, but the question is whether they would be overridden by what the court thinks is something that cannot be constitutionally brought in compliance with Article 40.3, possibly in conjunction with Article 40.1.