First published by the Sunday Business Post 3 January 2016
Article 27 was designed for deadlocks between both houses of the Oireachtas
The Oireachtas arithmetic after the next election could well see President Michael D Higgins using a constitutional provision that has never been employed before. The President has power under the Constitution to reject a bill passed by the Oireachtas. It has never been invoked, but was almost tested in 2014. The President can refer a bill, other than that to amend the Constitution, to the people in a referendum.
Under the Article 27 procedure, a majority of senators and not less than one-third of TDs may petition the President to decline to sign a bill into law, “on the grounds that the bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained”.
On receipt of the petition, the President must consult with his Council of State. He has the discretion to sign the bill regardless of their verdict.
However, the President may also decide that the bill should be referred to the Irish people.
If a referendum rejects the bill, the legislation must be completely redrafted. Article 27 is envisaged to be used in situations where there is a deadlock between both Houses of the Oireachtas.
This includes situations where the Seanad refuses to pass a bill already passed by the Dáil, or where the Dáil refuses to consider any amendments by the Seanad.
The President will need the signatures of 31 senators and 52 TDs (54 TDs under the current numbers) to secure the right to consider a referendum.
The political realities have traditionally meant that such a situation was impossible because the government held a majority in both houses.
This political term has proved that the impossible is possible.
The government has suffered defeats in the Seanad on a number of occasions. In 2013, a Seanad majority went against the coalition to accept Senator Feargal Quinn’s bill on upward only rent reviews.
In 2014, the Seanad secured victory with Senator John Crown’s amendment to the Health (General Practitioner Service) Bill.
The potential power under Article 27 was realised during the campaign against the 2014 Water Services Bill.
Sinn Féin, the Technical Group and other Independents combined to petition President Higgins not to sign the bill.
However, the President was unable to consider their request because the bill had already passed through both the Dáil and Seanad.
The Constitution requires that such requests must be presented to the President not later than four days after the date on which the bill was passed by both Houses.
The Opposition is unlikely to make that mistake the next time.
It is not beyond the bounds of possibility that the political make-up of the next Dáil and the Seanad will be sufficient to force the President to consider a bill under the Article 27 procedure and ultimately bring the legislation to referendum.
However, there is one more hurdle. Even if the petition survives the tight four-day required timeframe and secures an unlikely majority in the Seanad and a third of the Dáil, it must pass a higher majority.
The referendum will require a different majority than that of normal referendums. Under Article 27, the bill will only be defeated if at least one-third of all registered voters veto it. The level of turnout will be crucial.
However, it’s not an impossible task, given the dramatic 60.52 per cent turnout for the same-sex marriage referendum last May.
The campaign against the Water Services Bill may be a forerunner of what is to come. Forty-nine opposition TDs and senators from diverse ideological backgrounds mobilised together to write to the President.
Since the 2011 election, there have been 347 separate references to political reform in the Dáil debates and another 247 references in the Seanad.
In all that talk, none of them has realised that the legislature already has the power to veto the government via the President. What fun it would all be . . .