Thomas Byrne (Fianna Fail) | Oireachtas source

It is not the function of Members to judge the merits or demerits of legislation from a constitutional point of view, particularly where there is divided opinion on the issue. It is clear that opinion is divided on this issue. Each Act of the Oireachtas passed has the presumption of constitutionality. If citizens have concerns, there is a protection in place whereby the President can refer a Bill to the Supreme Court to test its constitutionality. If the President does not do so, a citizen can go to the Supreme Court to test the constitutionality of legislation. Consequently, I believe Members must move away from this debate because it is a very easy to hide behind the advice of the Attorney General.

Fine Gael and the Labour Party, both while in Opposition and when they formed the Government, came to the conclusion that such legislation was constitutional. They promoted and advocated it and included it in the programme for Government. They would have had the advice of civil servants and, presumably, the help of the Government's legal service in drafting that programme for Government. It is astonishing, therefore, that something has got in the way in the meantime.

This is a critical piece of legislation. Almost everybody in the Legislature agrees it is necessary and that its lack is costing jobs and business. Why then do we not go ahead and pass it? If some people are right, and the Bill is unconstitutional, the Supreme Court will tell us, as it has done on numerous occasions. That did not stop the Government at the time of the passage of the Matrimonial Home Bill, to which Senator Bacik referred, part of which was declared unconstitutional. It had been sent, with extremely good intentions. When the President refers a Bill to the Supreme Court, almost by definition some doubt has been expressed as to its constitutionality even though the legislation has been passed. That has happened on numerous occasions. It does not come by surprise, even when the Dáil and the Seanad pass legislation, that a Bill might be unconstitutional. The President calls the Council of State after a doubt has been expressed, often while the legislation is being passed. Perhaps, therefore, given the ongoing debate in this respect and, in fairness, given the differing legal opinions, this is such a Bill and if the Oireachtas were to pass it the President would indeed refer it to the Supreme Court. We have advocated the same before with other Bills and Presidents have taken up suggestions to refer Bills to the Supreme. That may be the way to get the answer.

It seems that the advice of the Attorney General is always used as a crutch. Let us remember the particular personality of the Attorney General. When I was a solicitor, Máire Whelan was the person one went to for conveyancing law. Presumably, therefore, the Labour Party got expert advice at the time from the Attorney General. The Minister for Justice and Equality, Deputy Alan Shatter, one of the top lawyers in the country, would have been extremely familiar with property law in his role as a family lawyer yet he was able to put forward legislation to the Oireachtas and, when his party went into Government, was able to say it was part of the programme for Government, it could be done, there were no problems with it.

We should act as legislators. Citizens have protection from unconstitutional legislation through the Supreme Court, which has acted on numerous occasions in declaring legislation to be unconstitutional, without causing scandal or offence to the Parliament. It can do so, and if this legislation is unconstitutional, so be it. However, we have a duty to look at the crisis now facing the country. What is that crisis? It is essentially one of jobs. There is no doubt that high rents are costing jobs. What is our job when we make laws? We look for flaws and wrongs in the law and try to correct them. Essentially, that is our function. It is not our function to debate or adjudicate on the constitutionality of legislation. It is certainly a guide but in this case there are differing opinions.