This is a guest post by Gary Murphy, Professor of Politics at Dublin City University
In comparative terms the Irish presidency is essentially a weak office. Presidents have very few constitutional powers of which to avail and so limited are these powers that a president has essentially no room for independent action. Yet the President does have one significant power, which is the ability to refer bills to the Irish Supreme Court for a judgment on its compatibility with the constitution. The president usually signs bills into law as a matter of course, but can decide to refer bills to the Supreme Court. This is a significant power on the grounds that if a bill is referred to the Supreme Court and is found to be constitutional, then the validity of that bill may never again be questioned by any court no matter how that bill affects society and individuals over time. In essence the bill is immune from all further challenge.
Before referring a Bill to the Supreme Court the President must convene the Council of State. Article 26.1.1 of the Constitution states:
‘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 Bills is or are repugnant to this Constitution or to any provision thereof.’
In December 2015 President Higgins decided to convene a meeting of the Council of State to discuss the government’s International Protection Bill 2015. This Bill dealt with the provisions for asylum seekers. In this case, the question put to the Council was:
Whether the International Protection Bill 2015 should be referred by the President to the Supreme Court for a decision on the question as to whether the Bill or any specified provision or provisions thereof are repugnant to the Constitution or to any provision thereof.
- Whether section 56 and section 57 of the International Protection Bill 2015 should be referred by the President to the Supreme Court for a decision as to whether either Section or any specified provision thereof is repugnant to the Constitution or to any provision thereof.
- Whether the Bill or any of its provisions are repugnant to the Constitution in light of Article 42A (Children)
iii. Whether section 78 of the Bill is repugnant to the Constitution in light of Article 29.6.
Article 42A was approved by the Irish people in a referendum in November 2012 and concerns itself with protecting the rights of children. Article 29.6 for its part states that ‘No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas’ (both houses of parliament).
The current Irish coalition government of Fine Gael and Labour is its last days of office and most political commentators expect an election to be held in late February. In November 2015 this government’s International Protection Bill was passed by the Irish parliament and presented to President Higgins for signing. The principal purpose of the International Protection Bill is the introduction of a single procedure for the examination of applications for international protection (or asylum) in Ireland, incorporating eligibility for refugee status and eligibility for subsidiary protection status.
In essence its aim is to reduce the length of time asylum applicants spend in the direct provision system through establishing a single applications procedure for international protection. Currently applicants can spend literally several years waiting for a decision on their asylum applications and in the meantime live in a system known as direct provision where the state houses them in residential institutions. The average wait on a decision is three years while some applicants have been waiting for up to seven years.
To its supporters this bill creates a more efficient application process by introducing a single procedure mechanism and appeals process for new applicants and demonstrates the Government’s commitment to ensuring that asylum seekers are given the respect and dignity they deserve while their application is being considered. To its critics the bill is more concerned with making quick decisions which will inevitably lead to deportation as it is with early identification of refugees and will thus be used as a means of enforcing immigration control.
Michael D. Higgins was elected in November 2011 polling 39.6 per cent of the first preference vote from a total of six candidates and has proven to be a very popular president. He has what one might call the common touch. He is routinely seen in the stands at League of Ireland football games where attendance tends to be low as a matter of course, and has been memorably photographed queuing up to take out money from a bank machine in a busy city centre street. While he initially stated he would only serve as president for the one seven year term there has been much speculation that he will seek a second term in 2018. The only obstacle to that second term might perhaps be his age as he is currently 74 years of age. In fact were to declare that he would seek a second term it is likely that he would be an agreed candidate across the political spectrum. Long associated with left-wing causes both internationally and domestically Higgins has been an outspoken critic of austerity but as Costa Lobo, Elgie, and Passarelli point out in their recent post he has not been critical of specific government policies and has clearly caused much less difficulty for this government than some of his predecessors did for theirs. In fact while Higgins has made various speeches as president questioning the whole neoliberal project and has long voiced concern at what he sees as the triumph of the market over social solidarity, he has not in reality crossed the line into public policy which is the prerogative of the government.
It seems to me that President Higgins summoned the Council of State to discuss the International Protection Bill out of a long-standing passion for social justice, a genuine concern for the plight of refugees and the possibility that this bill did not go far enough in the pursuit of either. The Council of State has few functions and meets rarely. This was only the thirtieth time since the constitution was inaugurated in 1937 that it had actually met. Its one true power; the requirement to make provision for the exercise of the president’s powers in any area not covered by the Constitution, has never arisen.
The Council of State eventually met on 29 December 2015 to discuss the International Protection Bill and the president’s twitter account (@PresidentIRL) issued a message that day simply stating that President Higgins has concluded the meeting of the Council of State. The following day the account tweeted that ‘In accordance with the terms of the Constitution, President Higgins has today signed the International Protection Bill 2015 into law.’ Press reports speculated that all but one of the members of the Council of State had suggested that the bill be signed by the President, but that he himself had given no indication at the end of the meeting as to what he would do, but that he would announce his decision the following day. By deciding not to refer the bill to the Supreme Court President Higgins continued down a path he has trodden since his inauguration; that of raising his doubts in public about various aspects of government public policy, but in effect being happy on consideration to stand by them.
Gary Murphy is Professor of Politics and Head of the School of Law and Government at Dublin City University. His latest book Electoral Competition in Ireland since 1987: the politics of triumph and despair will be published by Manchester University Press in March. Twitter @garymurphydcu