A law lecturer at University College Cork has said he is not surprised by the decision of President Michael D Higgins to sign the Mother and Baby Homes Bill, saying he "had little choice".
Amid disquiet from those opposed to the legislation to seal Mother and Baby Home records, Dr Conor O’Mahony said: “First, it's important to note that the President has very little discretion in all of this.
"All laws passed by the Oireachtas must be signed by him unless they fall within the exceptions set out in Arts [Articles] 26 or 27.
"Art 27 is a very specific exception that allows a Bill to be put to a referendum vote if a series of prescribed procedural conditions have been met.
"They were not met here, and so Art 27 could not be invoked,” Dr Conor O’Mahony said.
Article 26 allows the President to refer a Bill to the Supreme Court to test whether it complies with the Constitution.
"This was the provision that a lot of people seemed to expect the President to utilise here. However, while significant legal concerns have been expressed about the Mother and Baby Home Bill, they relate to its compatibility with EU law and not the Irish Constitution.
"This is not within the scope of Art 26. It was therefore not surprising that the President signed."
In summary: signing the law was not unexpected and the President had little choice. The Bill is unlikely to be unconstitutional. It may raise separate issues of compliance with EU law which may arise in the courts; but this does not mean the Bill should not have been signed. /END— Conor O'Mahony (@ConorUCCLaw) October 26, 2020
Dr O’Mahony said that if a Bill is referred to the Supreme Court under Art 26 and upheld, it would become immune from any subsequent constitutional challenge.
“What was unusual was that the President issued a statement noting the concerns expressed during the passage of the Bill, and highlighting the fact that it remains open to citizens to challenge it,” said Dr O’Mahony.
“The President's statement may have fueled some of the confusion by suggesting that there may be grounds for a constitutional challenge. Any future challenge is far more likely to be based on EU law.
"Signing the law was not unexpected and the President had little choice. The Bill is unlikely to be unconstitutional. It may raise separate issues of compliance with EU law which may arise in the courts, but this does not mean the Bill should not have been signed.”