The decision by Catherine Connolly to convene the Council of State on Monday – for the first time since her election – might have looked to some like a signal of her intention to be a thorn in the Government’s side.

After what was described as an “intense” meeting by the council to consider the International Protection Bill, Áras an Uachtaráin said the President would decide whether to refer the Bill to the Supreme Court.

Under article 26 of the Constitution, the President has the power to refer a Bill to the Supreme Court for an adjudication on its constitutionality. Before she does so, however, she must first consult the Council of State.

The council is, in the broadest sense, an advisory body to the president in the exercise of her powers, but its main significance in practice is its role within this process by which the constitutionality of legislation is deliberated on and legally assessed.

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Article 26 seems, at first glance, to be part of a system of “checks and balances” or a system of contestation by which different organs and office-holders within the State – particularly the President and courts – offer a safeguard against the government overstepping its constitutional boundaries.

[ President’s decision on International Protection Bill due after ‘intense’ Council of State meeting ]

And given Connolly’s political background, it may also be tempting to understand the convening of the council – or indeed any future reference of Bills to the Supreme Court – as being part of a posture of oppositionality or contestation of Government.

However, the role and the composition of the Council of State, in particular, undermines this interpretation of the article 26 process.

To understand why, we need to take a step back and consider the logic that guides whether a president might refer a Bill to the highest court in the State.

Article 26 is a very unusual and, indeed, innovative mechanism that is somewhat alien to the “common law” traditions of the English-speaking world. It is peculiar because it allows the constitutionality of a law to be decided within the legislative process itself, before the Bill becomes law and actually affects anybody. This is quite standard in continental Europe, but is at odds with the practices of the common law.

When the Supreme Court considers the constitutionality of a Bill referred by the President under Article 26, it does so purely “in the abstract”. It is a form of abstract constitutional decision because there are no facts in the case (other than the text of the Bill itself). The case is not taken by any party or complainant, and the President herself does not make arguments or have any involvement in the proceedings. It is “abstract” because there is no human face, no factual narrative, no specific individual grievance that would normally support and illustrate the arguments.

There are advantages to this model. The constitutional issue can be decided once and for all, one way or another, before any constitutionally dubious Bill enters into force and affects anybody in real life. In theory, it nips constitutional problems in the bud, rather than leaving the burden of constitutional challenges up to ordinary litigants down the line.

Yet the article 26 process has hardly been a roaring success. Judges have tended to dislike the mechanism because they prefer the concreteness of a case with facts and parties and the practical framing this gives. Normally, judges never decide a constitutional point for its own sake, but only as a means to an end of deciding a real-life case. A case with a real-life “story” arguably allows a richer and more human consideration of how abstract constitutional principles play out in practice.

Probably the greatest drawback of the mechanism, however, is that once the Supreme Court upholds a Bill under article 26, that legislation – once it is signed into law – can never then be challenged as unconstitutional.

This is probably the main reason, despite many Bills posing potential constitutional issues, only 16 have been referred to the Supreme Court under Article 26 in the history of the State. Even where presidents have felt that legislation may be constitutionally questionable, they have probably believed (or been advised) that it is preferable to have its constitutionality assessed in a real case.

And far from being a thorn in its side, it may sometimes very well suit the Government to have the President refer a Bill, because it offers some assurance and certainty early on about the fate of a constitutionally questionable law – in much the same way as it arguably suits a government to have a politely dissenting voice in the Áras who can act as a release valve for public sentiment.

Consider the Judicial Appointments Commission Bill referred by Michael D Higgins: no Government would want there to be constitutional doubts hanging over the judicial-appointments process and would invariably prefer to have a definitive resolution before the Bill became law. Article 26 potentially gives the Government a tool for mitigating constitutional uncertainties.

This dynamic is also reflected in the composition of the Council of State. While the president makes up to seven discretionary appointments, the council is otherwise dominated by what we might delicately call system insiders, particularly current and former holders of the offices of taoiseach, president and chief justice, along with the tánaiste and other senior politicians and judges.

Most tellingly of all, it includes the Attorney General, who naturally will have already formed a view of the constitutional issue. The process by which the President is advised of any constitutional problems is not in any meaningful sense independent of the government position.

This makes the logic of the mechanism clear. Far from being one of contestation, it was always intended – for better or worse – in a spirit of elite cohesion and consensus. There is a stark contrast with the equivalent mechanism in places such as France, for example, where the parliamentary opposition – 60 deputies or senators – can refer a Bill to the Constitutional Council.

And all of this, in turn, is very much in keeping with the spirit of the 1937 Constitution which – for better or worse – was concerned with centralising power in the Executive government in the interest of stability and cohesion.

While the relationship between the Government and Connolly may well prove to be fraught or strained, the Constitution itself provides little by way of opportunity for presidents truly to stand up to the government of the day – apart from through the symbolic power of speech, for what that is worth.

Much as under Michael D Higgins, any ideological or political battle between Connolly and the Government looks set to be fought purely at that symbolic level.

Eoin Daly is a lecturer specialising in constitutional law at the School of Law, University of Galway

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