Article 31.1 of the Constitution provides that there “shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council …”. The image, left, is a painting of the Council of State hanging in the Council of State Room in Áras an Uachtaráin, the President’s official residence. One matter on which the President must consult the Council of State is provided by Article 26.1.1:
The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.
On foot of this power, President Higgins convened a meeting of the Council of State to consider whether to refer the Protection of Life During Pregnancy Bill 2013 to the Supreme Court under Article 26; and that meeting is due to begin right about now (see: Irish Examiner here, here, and here | Irish Independent here and here | Irish Times here, here, and here | RTÉ | TheJournal.ie here and here). Update: Writing on ConstitutionProject.ie, Laura Cahillane of UCC provides an excellent overview of the issues which arise on this reference, including – the question of conflict of interest addressed in this post, and an earlier one, on this blog; immunity from future constitutional challenge of Bills approved by the Supreme Court; the propriety of the single-judgment rule; and the amount of time provided by Article 26 for the Supreme Court’s consideration.
This summoning of the Council of State is an unsurprising – even predictable – development; and those who sought to manufacture a controversy out of the reference were misguided (to say the least) as to the President’s constitutional rights, powers and discretions. As to the outcome of the meeting, whilst I think that the chances of a reference are 50/50, I would not be surprised if the President does ultimately decide to refer the Bill. After all, the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 was referred to the Supreme Court under Article 26. The Supreme Court upheld the Bill (see  1 IR 1,  IESC 9 (12 May 1995)) and the Bill was duly enacted into law.
There has been much analysis of whether the President should refer the Bill, and if he does, what the Supreme Court might make of it; doubtless, after today’s meeting, there will be much further analysis and commentary. I will leave those issues to others; but, now that the meeting has started, I would like here to raise two small procedural points. The first relates to a possible conflict of interest in the membership of the Council of State; the second relates to the standard on foot of which the President will consider whether to refer the Bill or not.
The possible conflict of interest arises from the membership of the Council of State set out in Article 31.2 as including the serving Chief Justice ex officio (Article 31.2.i), and any former Chief Justices who are “able and willing to act” (Article 31.2.ii). However, both Denham CJ and her immediate predecessor, Murray J, are members of the Supreme Court which will hear any reference under Article 26. I have considered in a previous post on this blog whether this dual membership gives rise to a potential conflict of interest such that they should consider recusing themselves either from the meeting of the Council of State or from the consideration of the reference in the Supreme Court. When I raised this issue again on twitter, it was objected that this conflict is backed, or enabled, or authorised by the constitutional membership of the Council of State.
I’m not sure that this is a particularly strong argument. For a start, the meeting of the Council of State and the hearing in the Supreme Court can go ahead in the judges’ absence. So there is no impediment to their recusal from the meeting or the hearing. In particular, the attendance of a former Chief Justice is conditional upon being “willing to act”: and it seems to me that it would entirely justifiable for a former Chief Justice who is still a serving member of the Supreme Court to be unwilling to attend a meeting of the Council of State under Article 26 having regard to the potential for a conflict of interest in the procedure. Moreover, if either or both of Denham CJ and Murray J have chosen to attend the meeting of the Council of State today, they could choose not to serve on any subsequent reference to the Supreme Court. The Chief Justice, in constituting the composition of the Court to hear the case, is not obliged to select herself or Murray J, and she could take their attendance at the Council of State into account in determine the panel to hear the case. Given that there are so many discretionary decisions to be made by the two judges during this process, I don’t think that they can say that they are sufficiently constrained by the constitution that they don’t need to think about possible conflicts of interest.
In fact, it seems that they do think about them: by convention, serving judges largely keep silent at meetings of the Council of State convened under Article 26; and when they do get involved in the discussion, as Ruadhán Mac Cormaic reports in today’s Irish Times, they are “careful not to take substantive positions unless they think the issue is clear-cut” (update and even then, Chief Justices have chosen not to give advice because a Bill could be referred to the Supreme Court). I don’t think that this resolves any potential conflict, however, since their presence at a decision, whether or not they have actually said anything, objectively connects them with the decision; and if the test for conflict is an objective one, then staying silent will not resolve the conflict.
Moreover, if they remain largely silent, why should serving Chief Justices, and former Chief Justices who are still serving judges, attend at all? There are other serving and former judges (retired Supreme Court Judge Catherine McGuinness is one of the President’s nominees; and the President of the High Court and retired Chief Justices are members ex offico) to provide a judicial perspective (update: indeed, on one occasion, a President of the High Court provided “devastating advice”). There are no minutes of these meetings, so we cannot know for sure that the serving judges’ self-denying ordinance is motivated by a recognition of a possible conflict; but, if that is so, then their best course is not silence at, but absence from, either the meeting of the Council of State or the Supreme Court hearing.
There might be greater force in the objection that the conflict is authorised by the Constitution if Article 26 references were the only occasions on which the Council of State can be convened. In fact, there many other such occasions, set out below, and in none of those other contexts does this conflict arise. It is of no moment that Presidents have rarely summoned the Council of State in those circumstances; what matters is that there are many occasions on which the Council can be summoned in which the serving judges would not have the potential conflicts of interest that may arise under Article 26.
Furthermore, the mere fact that something is enabled by the constitution is not always the end of a story: there are often additional considerations. For example, the Constitution envisages that rights may be restricted, but this does not afford legislative carte blanche – rather, any restriction upon rights must be proportional to the legitimate end pursued by the legislation. This principle of proportionality (pdf) is a constraint on the restriction of rights which is undoubtedly backed, or enabled, or authorised by the text of the constitution. Hence, additional considerations are not excluded, even where the constitution seems to permit a course of action. The possibility of a conflict of interest cannot therefore be excluded. Take for example the power of the President to convene the Council of State under Article 22.2.3 to consider a potential money Bill – in my view, a member of the Council of State had an interest under that Bill would have to recuse from that discussion. Hence, even though membership is enabled by the Constitution in general, specific principles can constrain whether attendance is appropriate in any given case.
Update: it is clear that the situation where, pursuant to Article 26, two members of the Supreme Court could attend a Council of State meeting to consider a Bill, and then adjudicate on the constitutionality of that Bill, is (to say the least) anomalous.
In sum, there may not in fact be a conflict of interest; but if there is, I don’t think that it is authorised by the constitution. If there is an unauthorised conflict of interest, the issue could arise in court in two ways: counsel could raise the issue and invite Denham CJ and Murray J to recuse either in any Article 26 hearing or in subsequent challenge where no reference was initially made. The fact that such an application has not been made in the past is no guarantee that one will not be made in the cure, where counsel judges that there is a tactical, strategic or principled advantage to be gained from such recusals.
Update: it is clear from this photograph which the Irish Independent posted on Ow.ly that both Denham CJ and Murray J attended (the Chief Justice is sitting immediately to the right of the President; and Murray J is third from the left on the back row) (further update: the official photographs are here). Indeed, there are only three absentees from the meeting – former president Mary Robinson, and former taoisigh Albert Reynolds and John Bruton.
The second issue I want briefly to mention here concerns the standard on foot which the President can decide whether to refer or not. In principle, having consulted with the Council of State today, it is entirely a matter for the President, in his absolute discretion, to decide whether or not to refer the Bill. If he does, the Supreme Court cannot decline to hear it. Article 26 provides no guidance to the President in exercising this discretion. Although the discretion is absolute, it is clear that reference to the Supreme Court is a very serious matter, with significant consequences – he should therefore do so only in the gravest cases, and some standard is necessary to guide him in making his decision. I suggest that it could be helpful for the President if the Supreme Court were, in an Article 26 reference, provide some guidance on this issue, which the various lawyers on the Council of State could pass on the President in any Article 26 meeting of the Council of State.
As to the present Bill, it might be argued that a reference would provide sufficient certainty to satisfy terms of A, B & C v Ireland 25579/05 (2011) 53 EHRR 13,  ECHR 2032 (16 December 2010). Furthermore, my colleague, Prof Gerry Whyte, has identified five issues which could prompt a reference of the Bill to the Supreme Court – relating to time limits, conscientious objection, equal protection, fatal foetal abnormality, and the binding status of the X Case.
However, in my view, it is not sufficient that there are possible constitutional issues with a Bill – that is always possible, with any Bill. I think that something more is required; and it seems to me that Presidents in the past must have taken a similar view. To take only one example, there are possible constitutional issues with blasphemy provisions of Defamation Act, 2009, and although President McAleese convened the Council of State to consider the issue, she did not refer the Bill to the Supreme Court. I think that she must have concluded that the possible constitutional infirmity was not obvious or compelling, and I think that some such standard should guide the President in deciding whether or not to make an Article 26 reference.
It may be that any possible constitutional issues are not ripe for decision in an Article 26 procedure. It is one of only two occasions on which the Supreme Court has an original (rather than appellate) jurisdiction (the other, provided by Article 12.3.1, relates to establishing whether the President has become permanently incapacitated; and it has never been exercised); and court used to making decisions in the context of concrete facts and clear legal issues as determined in the courts below may not be the best forum in which to assess whether an issue is justiciable in the abstract. Retired Supreme Court judge Hugh O’Flaherty, writing on the Clerical Whispers blog says, observes the Article 26 reference “procedure works best where there is a net point to be decided; where the answer is yes or no”. for example, in the most recent reference, In re Article 26 and the Health (Amendment) (No 2) Bill 2004  1 IR 105,  IESC 7 (16 February 2005), the Court had to consider a short Bill and a net point, if not an easy one, and in such a case the Article 26 procedure works well. On the other hand, it can be overly cumbersome where much ground needs to be covered from a variety of different perspectives. In O’Flaherty’s view, the current Bill falls on the latter side of the line:
… it would be better that the Bill should become law and if a case emerges with a concrete set of facts then the courts … could properly adjudicate on the constitutionality of the act. In contrast, where a bill is referred no evidence is heard and so matters have to proceed on a theoretical basis.
Whatever about the merits of this characterisation of the current Bill, the point is a more than useful one for the President to bear in mind. If there is an obvious or compelling net constitutional issue (perhaps or a series of such issues), then the matter is ripe for referral. If however there is not a net point, or if the procedure is likely to prove too cumbersome, think the matter is not. Of course, in the end, not only is matter one for the President in his absolute discretion, we will not know what guided it. But that should not preclude the Supreme Court from making a comment to this effect in an appropriate case.
Update (30 July 13): having convened the Council of State yesterday, the President this morning did not refer the Bill to the Supreme Court but decided instead to sign the Bill. A statement on his official website briefly records what has happened:
In accordance with Article 31 of the Constitution, President Michael D. Higgins yesterday convened a meeting of the Council of State to discuss the Protection of Life During Pregnancy Bill 2013.
President Higgins has today (30 July) signed the Bill into law.
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Provisions of the Constitution (other than Article 26) relating to the powers of the Council of State
Article 13.2.3 “The President may at any time, after consultation with the Council of State, convene a meeting of either or both of the Houses of the Oireachtas”.
Article 13.7.1 “The President may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance”.
Article 13.7.2 “The President may, after consultation with the Council of State, address a message to the Nation at any time on any such matter”.
Article 14 relates to the temporary or permanent incapacity of the President, and provides for a Commission, then
Article 14.4 “The Council of State may by a majority of its members make such provision as to them may seem meet for the exercise and performance of the powers and functions conferred on the President by or under this Constitution in any contingency which is not provided for by the foregoing provisions of this Article”.
Article 22.2.3 “If the President after consultation with the Council of State decides to accede to the request [by Seanad Éireann to refer to a Committee of Privileges the question whether a Bill is a money Bill] he shall appoint a Committee of Privileges consisting of an equal number of members of Dáil Éireann and of Seanad Éireann and a Chairman who shall be a Judge of the Supreme Court: these appointments shall be made after consultation with the Council of State. In the case of an equality of votes but not otherwise the Chairman shall be entitled to vote”. [also Article 22.2.6]
Article 24.1 “If and whenever on the passage by Dáil Éireann of any Bill, other than a Bill expressed to be a Bill containing a proposal to amend the Constitution, the Taoiseach certifies by messages in writing addressed to the President and to the Chairman of each House of the Oireachtas that, in the opinion of the Government, the Bill is urgent and
immediately necessary for the preservation of the public peace and security, or by reason of the existence of a public emergency, whether domestic or international, the time for the
consideration of such Bill by Seanad Éireann shall, if Dáil Éireann so resolves and if the
President, after consultation with the Council of State, concurs, be abridged to such period as shall be specified in the resolution”.
Article 27 allows members of the Oireachtas to petition the President to have the will of the people in respect of that Bill ascertained
Article 27.4.1 “Upon receipt of a petition addressed to him under this Article, the President shall forthwith consider such petition and shall, after consultation with the Council of State, pronounce his decision thereon not later than ten days after the date on which the Bill to which such petition relates shall have been deemed to have been passed by both Houses of the Oireachtas”.
Article 32 provides for a general obligation to convene and hear the Council of State when Constitution requires it be consulted.