Vincent P Martin (Green Party) | Oireachtas source

This one single amendment is substantive. It is so central and fundamental. It is like a belt and braces approach to the whole thinking and statutory intention behind the Bill. It would have the benefit of, if needs be, saving the Bill from itself. There might be a constitutional challenge at some later date but the Legislature should never fear a constitutional challenge. That is part and parcel of a robust democratic system. To look at the statutory intention, maybe the transcripts of these debates could be read into some court record at a later stage. Senator McDowell is almost forcing the Government to nail its colours to the mast in blatant terms. The Minister has replied that this is the intention. She has clarified that issue beyond any doubt. Therefore, the Legislature is prepared to put its head above the parapet. That is what I interpret from today's debate. Then we have to look at whether there are safety valves in the Bill in the way it is drafted. I construe the word "may" in section 42 as having a different meaning, whereby the Minister is not forced to do anything.The word used is "may". To accept in full Senator McDowell's well-intended amendment would be very bold. It could set the Bill at naught. We have to rely on a favourable interpretation of the words "may" in section 42 and, as regards the doctrine of the presumption of constitutionality of the legislation, that it would never be repugnant to the Constitution. The Attorney General has given the Government advices to which we are not privy. Has it done enough to save itself from potential challenge? I would say it is very close. It is for another academic discussion to ask who would have locus standi to take such a challenge. How would one compile the necessary cogent evidence to show four members of the Judiciary had acted in a certain way? I would like to think the Judiciary would not act in that way but I am alive to the possibility of an unconscious bias. You would want to be really open-minded all the time and every day of the year to spot a talented person who might be diametrically opposed to you and your views on life but may make a very good judge. There is a possibility of a judge in a powerful position inadvertently going down a road which may not necessarily be fair.

This is a fundamental amendment. It is almost like a declaration within the Bill to leave the Constitution alone and the Constitution is sacrosanct. I fully get that but is it necessary and is it not a given that the Constitution will always trump the legislator? The Government of the day should not be fettered by the legislator. If it is, at some stage there could be a challenge. I am not sure how that challenge would manifest itself but our duty is to legislate in a constitutionally safe way. I am sure the Minister will give us the assurance that this has been well thought out and that there is a safety valve within the discretion. I am not saying it is tying the hands of the Government but there is a case to be made that it is tying one hand of the Government. If that is so, we are in uncharted waters.

I will have to rely on the expert advice of the Attorney General on a very tricky, constitutionally discrete and volatile issue which opens itself up to different interpretations. Will the Minister give us further assurance that this has been thought out? It would be helpful if we saw the advice. I know the chief adviser to the Government does not have to give a legislator advice but that would reassure me. I am not entirely satisfied that this is constitutionally safe. I get it and know where it is coming from. I hope there are enough safety valves and assurances both in the Bill and from the advices that it will withstand a challenge. If there is a challenge, so be it. If the President, as the Senator said, refers the Bill, that is nothing to be afraid of. It would help clarify the law for everyone. We should never be afraid of challenges.

I would be concerned if we adopted this amendment. Maybe that would become the rule and not the exception and then this is just a dressed-up academic exercise which means well. I would prefer to rely on the Constitution. I am not sure it is necessary to have a statutory provision reminding us we are not in contravention of an Article in the Constitution. It would give great clarity, at the same time, but is it necessary to say we are at all times constitutional here? That is the question. Do we not presume we are acting in a constitutional way, to the best of our ability? I would be grateful to hear further from the Minister if she wants to think about that. The advices from the Attorney General would reassure some of us, as legislators who have the onerous task of deciding on this issue, which is not that simple.