The President has signed the Credit Institutions (Stabilisation) Bill into law. She clearly recognised that it might be unconstitutional, in part at least. That is the explanation for her convening the Council of State to advise her on the issue of referring the Bill to the Supreme Court, to rule on its unconstitutionality [under Article 26 of the Constitution].
She has decided not to refer it to the Supreme Court. She signed it into law.
There are advantages and disadvantages to this course. Affected persons or institutions can challenge it in the courts. Under the reference procedure, an affected person will not be able to challenge a law on grounds of unconstitutionality. This arises from the fact that the reference procedure precedes the bringing of an Act into force and no cause of action can subsist until this happens. Following the reference procedure no claim will be entertained that an Act is unconstitutional because the Act has been “cleared” by the Supreme Court.
Arguably, an affected person can bring the better challenge to an Act than can be brought in the reference procedure.
However, if there is no independent-minded person to challenge an Act it will remain unchallenged and will have the full force of law.
Possibly, that is the fate of the Credit Institutions (Stabilisation) Act 2010.
Who imagines, for instance, Allied Irish Banks plc, a likely candidate for being an “affected person”, mounting a legal challenge to the operation of the Act? It is, effectively, controlled by the Government.
No, the real legitimus contradictor was the Oireachtas. It, too, is controlled by the Government and is incapable of mounting a challenge.
Well, I was wrong. See this report from the Irish Times. l It may well be that the media will represent the public interest. Indeed, it will represent the interests of the judiciary; it is not in Ireland’s interests that the Judicial arm of the State be swallowed in the morass that Fianna Fail and the Progressive Democrats have created. We now know that barristers and solicitors are very poor judges of economic and financial matters. They (barristers) are the pool from which the judiciary are drawn. Why should they think they are superior?