Legal professionals have noted President Michael D Higgins’ unusual move of sharing his apprehensions about the government’s Planning Bill, without seeking the Supreme Court’s opinion. He verified on Thursday morning that he had ratified the Planning and Development Bill 2023, but chose not to use his right to refer it to the Supreme Court to evaluate its constitutionality. Instead, he pointed to the concerns highlighted such as citizen’s constitutional access to justice and potential adherence issues with the Aarhus Convention, an international treaty providing public right to environmental information.
Higgins asserted that these matters would be better addressed through a particular fact-based approach rather than a theoretical one. He proposed that it would be more fitting to have a specific case taken to the Supreme Court, under its own constitutional powers, rather than his referral. If the Court deems the Bill constitutional, no further contest can be launched.
Áras an Uachtaráin noted that Higgins’ choice permits any citizen to challenge the Bill’s stipulations in the future. Prof David Kenny from Trinity College law school found the President’s announcement “exceptional”. He commented that it’s rare to see a President suggest specific constitutional and legal concerns about a Bill without referencing it. He pointed out that it was notable how Higgins arrived at his conclusion without assembling the Council of State, which is made up of senior members from the judiciary, politics and civil society. Kenny, however, concurred that Higgins’ argument for not referring the Bill was “persuasive”. He posited that verifying adherence to the Aarhus Convention could be challenging or even unattainable in an abstract referral context by the President.
Prof. Laura Cahillane, an associate professor at the School of Law in the University of Limerick, agreed that it is highly uncommon to recognise potential unconstitutional aspects in a bill and then refrain from invoking the Council of State for discussion. Further, she mentioned that typically there is no obligation for a President to issue an explanation following such a decision, making it an uncommon event. She noted a similar incident occurred with a bill concerning the access to records from mother and baby homes, but in that case, the President stated that it did not raise direct constitutional issues worthy of referral.
Prof. Cahillane pointed out that the immunity that convinces presidents to avoid referring bills to the court, which results from a Supreme Court ruling the legislation constitutional after a presidential referral, should be reconsidered. She further added that no president had ever identified possible concerns in a bill and then resolved to sign it regardless, allowing organic legal challenges. According to her, this is indeed a rare statement.