CONTROVERSIAL emergency banking legislation is to be examined at a meeting of the Council of State convened by President Mary McAleese at Áras an Uachtaráin this afternoon.
The President has the authority, after consultation with the Council, to refer the Credit Institutions (Stabilisation) Bill to the Supreme Court to test its constitutionality. The court is allowed up to 60 days to consider the matter.
In the event that the court deems the Bill to be in accordance with the Constitution, the legislation cannot be challenged further on constitutional grounds.
Although the President is required to consult the Council of State before referring a Bill to the court, the decision on referral is a matter for her sole discretion.
The Bill was sent to the President for signature last week. If she decides to refer it to the court, this is likely to take place very shortly after the council meeting.
This will be the 27th meeting of the 22-member Council of State. It was first convened in January 1940 to consider the Offences against the State (Amendment) Bill, and most recently in July 2009, to discuss the Criminal Justice (Amendment) Bill 2009.
Labour finance spokeswoman Joan Burton has welcomed the decision of President McAleese to consult the council.
She said in a statement: “Under the terms of Article 26, the decision is a matter for the President and the President alone and the Labour Party will fully respect the independence of that process.
“However, the Labour Party believes that there are strong grounds to support a referral of this Bill to the Supreme Court.
“Our principal concerns relate to section 53, which contains a purported power, vested in the Minister for Finance, to make orders under statutory instrument, ‘notwithstanding any other enactment’.” Ms Burton said the Government was “attempting to seize the power of making law from the Oireachtas” and seeking instead to vest it in the Minister for Finance.
“We do not believe there are any Articles of the Irish Constitution that could justify a usurpation of powers by a minister of the government to make laws on behalf of the State, instead of those laws being made by the national parliament,” she said.
“The Bill seems to us to have one essential purpose: to provide for the power to amend the law by ministerial order,” Ms Burton added.
A Fine Gael spokesman said: “In the course of the Dáil debate on this Bill, Michael Noonan and other Fine Gael speakers raised serious doubts about the constitutionality of this legislation and certain sections in particular.
“But now that the President has referred it to the Council of State, we don’t want to make any comment that could be interpreted as trying to influence the President or the Council of State in any decision regarding the referring of the Bill to the Supreme Court.”
The European Central Bank has also expressed “serious concerns” about the extensive new powers in the Bill. ECB president Jean-Claude Trichet said the draft legislation was “insufficiently legally certain” in relation to the euro currency system.
The Department of Finance said yesterday: “There is no question of the Central Bank, ECB or any national central bank as creditors to the guaranteed institutions being exposed financially by the exercise of the Minister’s powers”. The department pointed out that legislative provision had already been made “to further ensure that any security held by the euro system is safeguarded” and further provision to this effect was included in the Credit Institutions Bill.
“The consultation period was inevitably and necessarily constrained as the preparation of the bulk of the Bill only commenced at the end of November. Nevertheless, the ECB was sent draft heads of the Bill at the end of November and a close to final draft of the Bill was made available to the ECB on December 11th,” the department added.
