President’s concerns about legislative process baffling

• Published date: 03 August 2021

Michael D Higgins has already served almost 10 years as President and prior to being elected to serve as head of State, he served as a member of the Dáil for approximately 25 years - the President is undoubtedly well-accustomed to the uneven flow of legislation.

The prospect of the Council of State having to meet over Christmas is not new - over the past three years (and indeed in the many years prior to that), the Dáil and Seanad have been passing legislation up until the days leading up to Christmas. Similarly, the practice of the incumbent Government rushing to pass legislation in the weeks leading up to the summer recess or the Christmas break is not new - it is a practice that has been prevalent for many years now. But that is not to say that it is a practice that should be continued.

While the President's obligation to consider the constitutionality of any proposed legislation does necessitate an in-depth consideration of each Bill's proposals, the day on which the President is presented with legislation for his signature is presumably not the first time he lays eyes on the legislation.

The wonders of the internet mean that we all now have the opportunity to read the text of a Bill soon after it is published, and we can follow the Dáil and Seanad debates live online and we can read a transcript of the debate online the very next day. The progress of legislation can be tracked in real time and it is not unreasonable to suggest that legislation that contains proposals which are in any danger of being unconstitutional will attract a heightened degree of attention long before the Bill is presented to the President for his signature. The President also has the comfort of knowing that no Attorney General of contemporary times would knowingly sign-off on a piece of legislation which he or she knew to be likely to be found to be unconstitutional.

Legal experts

It seems reasonable to assume that when considering the constitutionality of any piece of legislation, in addition to having access to the transcripts of the debates that took place in the Dáil and Seanad, the President also has ready access to legal experts who are available to advise him on the key aspects of any Bill and that therefore he is not required to consider the constitutionality of Bills in the isolation of his study.

Interestingly, in his letter, the President seemed to stray beyond issues relating the volume of legislation into the adequacy of the scrutiny of legislation by the Dáil and...