President Catherine Connolly has decided not to refer the International Protection Bill to the Supreme Court to test its constitutionality and has signed it into law.
The announcement from Áras an Uachtaráin this afternoon comes after the President convened the Council of State on Monday to discuss the issue.
It will come as a relief to the Government, which pushed the controversial legislation through the Oireachtas in recent weeks despite sharp criticism from the Opposition parties and some NGOs.
Although Government sources fully expect that the law will be challenged by an individual at some stage in the future, the law will now come into operation as scheduled, fulfilling Ireland’s obligations under the EU Migration Pact.
Under article 26 of the Constitution, the President has the power to refer any bill to the Supreme Court for an adjudication on its constitutionality. Before she does so, however, she must first consult the Council of State. But the council is merely an advisory body – the decision is then the President’s to make.
If the challenge fails, however, and the court decides it is not unconstitutional, the legislation is immune from further challenge. This is one of the reasons why presidents have been reluctant to refer Bills under article 26, preferring to let the law be enacted and any future challenge to be grounded in its practical application.
A statement issued by Áras an Uachtaráin on Wednesday afternoon said Connolly signed the Bill “having given careful consideration to all constitutional and other aspects” of it and “having considered all the options available to her”.
The concerns that led to the President calling a meeting of the Council of State remain, the statement said.
“However, when considering any particular piece of legislation, the President must be cognisant of Article 34.3 of Bunreacht na hÉireann, which provides that no court can question the validity of any legislation deemed constitutional following a referral by the President to the Supreme Court. In this context, the capacity of a putative litigant to take a case on the basis of facts rather than abstract grounds has to be taken into account.”
“The President’s decision to sign this legislation thus does not close off any actions sought by any person to challenge the provisions of the Bill in the future,” the statement said.
Former president Michael D Higgins convened the council on four occasions to discuss a possible article 26 referral, but only actually referred one Bill – which was subsequently found by the court to be constitutional.