the article 26 mechanism, allowing the president to refer bills to the supreme court, was arguably one of the greatest innovations of the 1937 Constitution but it is now effectively moribund. ... https://www.echolive.ie/corknews/President-urged-not-to-sign-mother-and-baby-home-legislation-032917e5-b7ed-47de-94c7-d82b806f525d-ds

.... this is partly because presidents are very slow to make referrals - presumably because once bills are upheld by the supreme court under the mechanism, they enjoy a 'seal of constitutionality' once enacted as law. it's possibly seen as counterproducive and premature ...

... there is a cultural preference, in a common law country, for deciding constitutional issues in the context of the concrete facts of an adversarial case, with litigants, not through an abstract reference. neither the courts nor the president ever really took to it.

.... there have been (i think) fourteen references made in total since 1937, despite the huge number of bills that raise constitutional questions. it has just never taken off as a mechanism of constitutional control, probably for the two main reasons i described.

... there's also the fact that unlike continental countries where this kind of mechanism is more common and linked to a dedicated constitutional court, no such body existed in Ireland that would be dedicated to reviewing constitutionality of bills. ...

... that has changed somewhat since the 2013 reform of the court system. i heard a supreme court judge say in 2014 he thought the court would evolve to being something like a 'constitutional court' due to reduction/specialisation of its case load. ...

.... however, the other limiting factor is that only the president can invoke article 26. in france, for example a range of political actors (including a critical mass of opposition parliamentarians) can refer a bill for constitutionl review.

... so, if you were to try to make something of a26, to make it meaningful, I think you would first abolish the seal of constitutioality so as not to disincentivise referrals. You might also broaden the power of referral to include particularly the government itself. Why?...

... well, currently uncertain constitutional questions are typically decided based on the confidential advice of the attorney general. Governments saying they can't do something because they're advised it's unconstitutional. I say, if there is constitutoinal doubt about a bill...

... why not have it resolved transparently &judicially rather than informally based on confidential legal advice? i say this despite my deep (qualified) scepticism about judicial review of legislation as a democratic practice. What i have outlined would be better than status quo

as for the mother &baby homes bill &the sealing of the records which has been highlighted as arguably inconsistent with GDPR, EU legislaiton, for better or worse, is not grounds for constitutional review of bills, despite the recognition in constitutional law of eu treaties