President to decide if McEntee Bill goes to Supreme Court
PRESIDENT Michael D Higgins is today expected to decide if the controversial Judicial Appointments Bill should be referred to the Supreme Court, to test its constitutionality.
Such a move could be embarrassing for Justice Minister Helen McEntee, who is under pressure on a number of fronts.
Having her legislation referred to the Supreme Court would come as another blow for the minister on top of criticism she has faced over an epidemic of violent crime on Irish streets, a shortage of gardaí and the recent vote of no confidence in Garda Commissioner Drew Harris.
There is concern that the legislation would restrict the Cabinet’s constitutional right to freely appoint judges.
Under the proposed Bill, the Cabinet’s choice of candidate must come from a shortlist provided by an expert panel.
While the government of the day already receives this list, it can also choose a judge who is not on it, as has happened a number of times over the years. President Higgins yesterday convened the Council of State to adjudicate on referring the bill to the Supreme Court.
Current and former taoisigh attended, including ex-Fianna Fáil leader Brian Cowen.
However, Fine Gael’s Enda Kenny and John Bruton were not present.
Former president Mary Robinson also attended the meeting, alongside several senior and retired judges including the former chief justice Susan Denham.
While Mr Higgins has convened the Council of State twice, in order to consider whether to refer legislation to the Supreme Court, he has never actually made the rec President ommendation to do so. It is understood he will consider how much detail to put into the public domain if he decides to refer the legislation to the Supreme Court.
Referrals are regarded as neutral, not as indicating a view by the President on the Bill’s constitutionality or otherwise.
If legislation is declared constitutional by the Supreme Court, it is exempt from future challenges.
The ability to refer legislation to test its constitutionality is one of the few concrete powers available to the and any move to exercise it would be seen as a significant decision given that the Government was warned about the potentially unconstitutional elements in the legislation months ago, by TD Jim O’Callaghan and senator Michael McDowell, both senior counsels. It is understood that Mr Higgins has not outlined any specific element of the Bill that he thinks may be unconstitutional and instead wanted to hear a range of views from members of the Council of State. The President previously convened the council on July 29, 2013 to consider the Protection of Life During Pregnancy Bill 2013, and on December 29, 2015 to consider the International Protection Bill 2015.
Since 1940, the Council of State has, prior to the latest situation, been convened to consider the potential referral of 28 Bills to the Supreme Court. Various Presidents referred 15 of those Bills to the country’s highest court.
The potential for the President to refer the legislation to the Supreme Court, which may find it unconstitutional, comes after the Chief Justice, Donal O’Donnell, said last week that seven judicial appointments promised for last May have not yet been made.