Yesterday, Michael D Higgins convened the first meeting of the Council of State of his presidency. The members — with the exception of Mary Robinson, John Bruton and Albert Reynolds who sent their apologies — were called together to discuss the Protection of Life During Pregnancy Bill, 2013. It was the twenty-seventh time in the Council’s history that it has met to discuss legislation, and seventy-three years since the then President Douglas Hyde first exercised this power. Today, the President signed the bill into law without referring it to the Supreme Court; this has happened on ten previous occasions. My column looking at what happened when the Council of State was convened in the past was published on TheJournal.ie yesterday morning. That afternoon, I was invited to contribute to RTÉ’s Drivetime to discuss the latest meeting of the Council in its historical context with Mary Wilson. Both the column and the interview are available below.
Listen to the interview:
To read the column on TheJournal.ie website, click here.
WHEN PRESIDENT MICHAEL D Higgins convenes the Council of State today to consider the Protection of Life During Pregnancy Bill 2013, it will be the twenty-seventh time in the Council’s history that it has met to discuss legislation.
In accordance with Article 26 of the Constitution, the president can refer bills or sections thereof to the Supreme Court to test their constitutionality. Before doing so, however, he or she must first consult with the Council of State, an advisory body, although the president is free to disregard their advice.
On 6 January 1940, the then-president Douglas Hyde announced that he was convening the Council of State to discuss the bill designed to amend the Offences Against the State Act 1939. The first ever meeting took place two days later at 4pm in Áras an Uachtaráin behind closed doors. Although artist Simon Coleman captured the event (see above), there is no available record of the discussion, apart from the statement issued that signalled the president’s intention to refer the legislation to the Supreme Court. Hyde asked for a judgement on the Offences Against the State (Amendment) Bill, 1940 as a whole. The Supreme Court deemed it within the power of the Oireachtas, consistent with the Constitution, to enact such legislation. Hyde duly signed the bill into law.
The second occasion on which the Council was convened also occurred during Douglas Hyde’s presidency. However, on that occasion the legislation, which was referred to the Supreme Court, was found to be repugnant to the Constitution. Article 42 of the Constitution states that it:
acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
Fine Gael’s John A Costello argued that section 4 of the School Attendance Bill 1942 gave the authority to decide on the nature of a child’s education to the Minister for Education, rather than the parents. The Supreme Court shared his interpretation.
‘A thundering disgrace’
In total, seven pieces of legislation referred to the Supreme Court following meetings of the Council were found to be constitutional, including the Emergency Powers Bill 1976, which was introduced by the National Coalition of Fine Gael and Labour in response to a catalogue of violence that included the murder of the British Ambassador, Christopher Ewart Biggs. The legislation provided for the detention for up to seven days of those suspected of crimes under the Offences Against the State Act. It was Cearbhall Ó Dálaigh’s decision to refer that legislation that prompted Paddy Donegan, Minister for Defence, to describe the president as a ‘thundering disgrace’.
More significantly in the context of the forthcoming meeting, when the Council of State is convened today it will not be the first occasion on which legislation relating to abortion will be discussed. The Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 was referred by Mary Robinson following a meeting of the Council on 16 March 1995. The bill – also deemed constitutional – was a product of a referendum in November 1992 in which the Irish electorate voted for the fourteenth amendment of the constitution that granted citizens access to information about abortion services available abroad.
Overall, seven pieces of legislation have been deemed unconstitutional by that Court; they range in scope from the Electoral (Amendment) Bill, 1983 to the Health (Amendment) (No. 2) Bill, 2004.
The last four occasions on which the Council has met – all occurring during the presidency of Mary McAleese – led to the president signing the legislation under consideration without reference to the Supreme Court. Altogether, this has happened ten times, beginning with Seán T O’Kelly who convened the Council in 1947 to discuss the Health Bill 1947. The Income Tax Bill 1966, and the Criminal Law Bill 1976, are among the other pieces of legislation signed into law in this way.
Meetings of the Council were infrequent under the early presidents and it was not until Mary Robinson and, more particularly, Mary McAleese were elected that they became more regular. McAleese convened the Council on eight occasions, the same number of times that it met during the presidencies of Douglas Hyde, Seán T. O’Kelly, Eamon de Valera and Cearbhall Ó Dálaigh combined. It met six times during Robinson’s seven years in office, and on four occasions during Patrick Hillery’s two terms.
The government of the day cannot advise or request the president to refer legislation to the Supreme Court, and so this discretionary power of the president ensures the independence of the office. Where there are doubts about aspects of a bill, a Supreme Court judgment will quash them, although one of the downsides is that the legislation is subsequently protected from any further challenges.
My article ‘Constructing the Irish Presidency: the Early Incumbents, 1938-73‘, was published in a special issue of Irish Political Studies on the politics of the Irish presidency (27:4, 2012). The articles that appear in that edition will also be published in an edited-volume published by Irish Academic Press later this year.