Court and Legal Referendum: Does Shatter Want a Referendum to End all Referendums?

[C. Flower]

Alan Shatter has chosen the end of the Daíl Term to announce that there will be a referendum on changes to the courts system.

In addition he wants to change Article 26. Any weakening of Article 26 would concentrate more power into the hands of government and of the Minister.

Article 26
This Article applies to any Bill passed or deemed to have been passed by both Houses of the Oireachtas other than a Money Bill, or a Bill expressed to be a Bill containing a proposal to amend the Constitution, or a Bill the time for the consideration of which by Seanad Éireann shall have been abridged under Article 24 of this Constitution.
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.
2° Every such reference shall be made not later than the seventh day after the date on which such Bill shall have been presented by the Taoiseach to the President for his signature.
3° The President shall not sign any Bill the subject of a reference to the Supreme Court under this Article pending the pronouncement of the decision of the Court.
2. 1° The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference.
2° The decision of the majority of the judges of the Supreme Court shall, for the purposes of this Article, be the decision of the Court and shall be pronounced by such one of those judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.
3. 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill.
2° If, in the case of a Bill to which Article 27 of this Constitution applies, a petition has been addressed to the President under that Article, that Article shall be complied with.
3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced.

http://www.breakingnews.ie/ireland/s...ul-559537.html

The Justice Minister Alan Shatter is proposing a referendum to overhaul the courts.

Mr Shatter said the plans, approved by Cabinet, include a move to amend article 34 of the Constitution, in order to allow the Oireachtas to establish a Court of Civil Appeal and new family courts.

He is also in favour of changes to procedures under Article 26 which allows a President to refer a bill to the Supreme Court, in order to test its constitutionality.

Minister Shatter announced the plans at the launch of the Courts Service Annual Report.

[riposte]

Alan Shatter has chosen the end of the Daíl Term to announce that there will be a referendum on changes to the courts system.

In addition he wants to change Article 26. Any weakening of Article 26 would concentrate more power into the hands of government and of the Minister.

Maybe he wants to strengthen Article. 26

[C. Flower]

Discussed in the IT and on RTE Drive Time - "I suspect that the rational is to avoid referendums" - and to reduce the independent powers of the President. Donnacha O'Connell, lecturer in law, Galway.

He was dubious that voters would be keen on either proposal.

Will FG try to beat us into submission with multiple vexatious and annoying referendums, with a view to making the case that they are a nuisance?

[C. Flower]

Not the first noise Fine Gael has made in relation to curbing the Presidency, and only a part of a wider picture of attempts to concentrate power in the hands of Government without counterbalances -

http://www.politicalworld.org/showpo...3&postcount=14

[Baron von Biffo]

FG justice ministers are creatures to be feared and that probably applies even more in Shatter's case than any of his predecessors.

Article 26 is much misunderstood. It seems to be viewed, even by some who ought to know better, as a mechanism whereby the President can oppose government policy but that's not its purpose.

Referrals under the article don't test the desirability or otherwise of a bill. All it does is allow the president to ask the Supreme Court to pronounce on whether a bill is constitutional or not.

Article 26 referrals are, because of the linked Article 34.3.3, very dangerous. So dangerous in fact that they should only be used where there's a risk of immediate and irrevocable injustice should a bill be signed without referral. To my mind none of the referrals to date would meet that requirement.

A proposal to delete or amend 34.3.3 so as to allow for acts, the bills for which had been subject of a referral, to be tested for constitutionality (perhaps after expiration of a reasonable time) would be very positive. Whether that's what Shatter has in mind is another matter.

The detail will be very important here.

[Baron von Biffo]

Dearbhail McDonald reporting in the Indo that Shatter will be seeking our permission to allow the Supreme Court the power to "reject the referral as groundless if there was no factual or evidential basis for the review".

Even asking us that question is contemptuous of the office of President as it assumes that an incumbent might refer a bill on frivolous or vexatious grounds.

I wonder if he's upset that the voters never put the FG nominee in the Aras?

http://www.independent.ie/national-n...s-3172617.html

[Andrew49]

Dearbhail McDonald reporting in the Indo that Shatter will be seeking our permission to allow the Supreme Court the power to "reject the referral as groundless if there was no factual or evidential basis for the review".

Even asking us that question is contemptuous of the office of President as it assumes that an incumbent might refer a bill on frivolous or vexatious grounds.

I wonder if he's upset that the voters never put the FG nominee in the Aras?

http://www.independent.ie/national-n...s-3172617.html

If the Supreme Court had that power, and it did reject a Presidential referral, wouldn't the result be that the President would have no recourse but to resign from office ... OOHH! I see where Shatter is going with this idea!

[Baron von Biffo]

If the Supreme Court had that power, and it did reject a Presidential referral, wouldn't the result be that the President would have no recourse but to resign from office ... OOHH! I see where Shatter is going with this idea!

That's it exactly. It would be tantamount to the Supreme Court declaring the President incompetent.

[C. Flower]

FG justice ministers are creatures to be feared and that probably applies even more in Shatter's case than any of his predecessors.

Article 26 is much misunderstood. It seems to be viewed, even by some who ought to know better, as a mechanism whereby the President can oppose government policy but that's not its purpose.

Referrals under the article don't test the desirability or otherwise of a bill. All it does is allow the president to ask the Supreme Court to pronounce on whether a bill is constitutional or not.

Article 26 referrals are, because of the linked Article 34.3.3, very dangerous. So dangerous in fact that they should only be used where there's a risk of immediate and irrevocable injustice should a bill be signed without referral. To my mind none of the referrals to date would meet that requirement.

A proposal to delete or amend 34.3.3 so as to allow for acts, the bills for which had been subject of a referral, to be tested for constitutionality (perhaps after expiration of a reasonable time) would be very positive. Whether that's what Shatter has in mind is another matter.

The detail will be very important here.

I'm not at all persuaded by this argument (although as always, open to persuasion).

A President has a duty to defend the Constitution. If he or she has reason to believe that a law is being passed that is unconstitutional, he/she should act expeditiously to prevent it, and should not hang back because maybe someday some other issue with the law might come up.

If 34.3.3. is so dangerous as all that, it should be repealed.

http://politico.ie/irish-politics/79...ents-role.html

[Baron von Biffo]

I'm not at all persuaded by this argument (although as always, open to persuasion).

A President has a duty to defend the Constitution. If he or she has reason to believe that a law is being passed that is unconstitutional, he/she should act expeditiously to prevent it, and should not hang back because maybe someday some other issue with the law might come up.

What you dismiss as 'some other issue that might come up' is exactly what you're saying the president should seek to prevent, an unconstitutional law.

Suppose the Offences against the State bill had been the subject of an Art. 26 referral. Lawyers would have been retained to argue the case for and against its constitutionally. Obviously they would be arguing in the abstract as there wouldn't be an immediate case to be heard. Now assume that the SC ruled it constitutional.

Roll on to 2012 and The Demache case. Because of Art. 34.3.3 Mr. Demache would not have been able to challenge the constitutionality of section 29 warrants so they would still stand despite being unconstitutional.

Far better for the president to allow the law to be enacted unless he suspects that some immediate and irremediable injustice will occur if it's not referred. That course allows for repeated challenges over time by people who would be adversely affected by denial of their rights.

If 34.3.3. is so dangerous as all that, it should be repealed.

http://politico.ie/irish-politics/79...ents-role.html

It can't be repealed, it must be either deleted or amended by referendum. That would be a good cause for the government to take up.

[C. Flower]

What you dismiss as 'some other issue that might come up' is exactly what you're saying the president should seek to prevent, an unconstitutional law.

Suppose the Offences against the State bill had been the subject of an Art. 26 referral. Lawyers would have been retained to argue the case for and against its constitutionally. Obviously they would be arguing in the abstract as there wouldn't be an immediate case to be heard. Now assume that the SC ruled it constitutional.

Roll on to 2012 and The Demache case. Because of Art. 34.3.3 Mr. Demache would not have been able to challenge the constitutionality of section 29 warrants so they would still stand despite being unconstitutional.

Far better for the president to allow the law to be enacted unless he suspects that some immediate and irremediable injustice will occur if it's not referred. That course allows for repeated challenges over time by people who would be adversely affected by denial of their rights.



It can't be repealed, it must be either deleted or amended by referendum. That would be a good cause for the government to take up.

Far better for them to have been struck down as a result of a Presidential referral.

You are right about having a referendum to get rid of 34.3.3.

[Baron von Biffo]

Far better for them to have been struck down as a result of a Presidential referral.

You're missing the point. The SC hearing can obviously only deal with whatever points are anticipated by the lawyers appointed to challenge the bill. If they hadn't anticipated the problem with the warrants, or any other matter, and ruled the bill constitutional then Demache wouldn't have been able to bring his challenge.

You are right about having a referendum to get rid of 34.3.3.

Course I am.