Michael McDowell (Independent) | Oireachtas source

In reference to that, I want to say that to so misconstrue and misrepresent Article 26 of the Constitution, so as to say that effectively a "new ruse" had been dreamed up to allow them to consider the validity of the terms of this legislation before the President signs it into law and to say that this was somehow designed to assist a conspiracy of judges and other opponents to effect the way in which this legislation is passed or whether it is passed at all, is demeaning for a Minister. The President's role in this is for the President to operate under Article 26 and it is a matter for him to consult the Council of State and take its advice but to exercise in the last analysis his own personal judgement as to whether an Article 26 reference would or would not be appropriate.

I refer to the suggestion, therefore, that a "new ruse" was to:

Appeal to the judiciary to make independent judgements on the very system of political appointment that landed them in their current positions. Wow.

That was a disgraceful remark for any Minister in the Cabinet to make about the Article 26 reference process. It is disgraceful in many respects because it shows remarkable ignorance and a remarkable disloyalty to the terms of the Constitution because this legislation is eminently suitable for an Article 26 reference if that is the view of the President and I do not presume to advise the President on this issue, although I have clear views which I have expressed.

The point I am making is around why it is wrong for a Minister to try to impugn the Article 26 procedure, as applicable to this Bill. It is wrong because if this Bill is unconstitutional for any or all of the reasons I have proposed or for others which I have not yet seen or which may occur to others on an Article 26 reference, or if any part of it is arguably unconstitutional in a manner that would require or justify such a reference, I will say that the very purpose of Article 26 is to make sure that something which becomes law and which should be looked at before it becomes law should have an adjudication made on it in limited circumstances.From my experience as Attorney General, Minister for Justice, Equality and Law Reform, Tánaiste and a member of the Council of State, I know that Presidents are very sparing in their use of Article 26 precisely because of the stare decisisrule to the effect that once a Bill has been referred to the Supreme Court under Article 26 and found to be valid, the matter may never again be canvassed in any court at any level. Commentators query whether that should be the case. I would not have inserted it into the 1937 Constitution but it is there and, as a result, Presidents rightly take the view that they should not cut off constitutional challenges to legislation for all time where factual situations, changing values and views on the Constitution may emerge which nobody could envisage and which might justify a constitutional challenge to legislation.

The converse is equally true. Why is Article 26 there and why would the President refer the relevant matter to the Supreme Court? There are circumstances in which, having regard to a number of distinct issues, it is crucial that a preliminary check before final promulgation as a law by the President's signature should take place. One of these is that if legislation which had the effect of unconstitutionally tainting the manner in which judges were appointed were to be passed, it would be far better if that was discovered at the earliest available opportunity. There are two reasons for this. The first is that there can be downstream consequences of appointments being made in a unconstitutional manner. The second is that the fact that whether a challenge might be made depends largely on who is likely to make it. Without going into an overly long discussion on the matter, we must consider who is likely to make a challenge of this kind. The person who is most likely to do so is somebody who is directly affected by the legislation. Will it be a disappointed judge who believes that he or she was improperly excluded from being shortlisted by unconstitutional legislation? Will it be a disappointed would-be appointee to a position on the Bench? Who would have locus standito challenge this? It is perhaps not just anybody who is an ordinary citizen. It might be argued that ordinary citizens simply do not have it. In the context of some views of the law, it might be argued that they do have standing.