Irish Legal System

  • This subject serves as an introduction to the Irish legal system and covers a wide array of topics required for first year law students.

Topics covered include:

  • What is the law?
  • Precedent
  • The Irish Court System
  • Judicial Independence
  • Legislation Process
  • Statutory Interpretation

Introduction: What is the law?

Law: Definition –> the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.

The law in Ireland is found in the Constitution (Bunreacht na hEireann), statute and common law.

Ireland  has a common law legal system with a written constitution that provides for a parliamentary democracy based on the British Parliamentary System.

What then distinguishes rules of morality from rules of law (i.e. how might we distinguish between the law prohibiting theft from the moral convention of letting an older or pregnant person have your seat on the bus?) – First, laws are written. Secondly, laws apply to everyone. So, although not everyone shares the same moral values, they must abide by the rule of law. This brings about the most seminal difference between the two, enforcement. Laws are enforced whilst moral laws are not. You will not be prosecuted for not giving your seat up on the bus to an elderly person, but if you unlawfully murder that same person, you will be subject to the rule of law prohibiting such an act.

Topic 1 – Precedent

Precedent, or stare decisis is the process by which judicial decisions are binding on certain courts. Three conditions must be present in order for precedent to exist in a legal system:

  1. Hierarchy of Courts
  2. Law reporting (recording legal decisions)
  3. Values of consistency, certainty, predictability etc. of the law.

i) How does precedent operate in Ireland?

We have established that Ireland operates a common law legal system (countries like France, Italy and Germany operate a civil law system where the doctrine of precedent does not operate), as a result, the doctrine of precedent applies in Ireland.

Some tenets of how it operates:

1)   Lower Courts follow the decision of Higher Courts. This rule is found in Art. 34.4 of the Constitution. (See below for a diagram of the Irish Court Hierarchy)

Irish Court Hierarchy

There are several  cases that have dealt with this rule.

  • ***McDonnell v. Byrne Engineering Co Ltd, Irish Times (4 October 1978) — Here, a retrial was ordered where Murnaghan J. refused to apply Supreme Court guidelines (Carroll test)  for the award of damages.
  • *State (Harkin) v O’Malley [1978] I.R. 269
  • *O’B v. Patwell, [1994] 2 I.L.R.M. 465

2) Ratio Decidendi  v. Obiter Dictum

Ratio Decidendi: “a principle of law which is the basis for an actual decision” per ***Considine v Shannon Regional Fisheries Board [1994] 1 ILRM 499. Latin translation = “the reason”

  • ***Donoghue v Stevenson [1932] AC 562 – This case serves as an excellent example of the difficulty in determining the ratio of a case.
    • The ratio of ***Donoghue was first thought to be: “reasonable care in the preparation… of products” is required when the manufacturer intends those products to reach the final consumer without “reasonable possibility of immediate examination.”
    • Later however, a different ratio was recognized: “The rule that you are to love your neighbour becomes in law”
  • So, it is clear that the ratio of a case is not always clear and is a matter of interpretation.

Some things to consider when looking for the ratio of a case:

  • The structure of cases
    • Facts which raise issues
    • The Relevant Law
    • Application of Law to Material Facts
    • Decision
  • The use of certain words
  • The reasoning process applied by the judge
  • Same technique applies to multiple judgments.

What about obiter dictum?

Obiter dictum: concerns a peripheral or irrelevant legal principle. Latin translation = “said in passing”

  • Obiter statements are not binding. They are merely persuasive.
    • •“It is no defence to a charge of murder that the accused feared for his own life as his life is not worth more than the lives he ended, nor would it be a defence if the lives of his partner or child were threatened.”
  • The writing in red is obiter. It is a statement said in passing to bolster the judgment.
    3) Distinction between binding and persuasive judgments.
  • A lower court is bound by the judgments of a higher court
  • A superior court is not bound by the decisions of inferior courts, these decisions are persuasive only
    • Dissenting judgments are only persuasive
  • Foreign judgments are only persuasive.
    • The most significant extra-jurisdictional source of judgments is England and Wales, followed by Australia, New Zealand and the USA. The USA is looked at more often that not for matters of constitutional law as England and Wales does not have a written constitution.
  • Coordinate Jurisdiction (Equal Jurisdiction):  For example the High Court will follow all previous High Court decisions; they do not over rule from a court on the same level as it would lead to inconsistency.  But decisions are not static so instead of overruling decisions they try to distinguish them by saying that the decision is good but that it is not applicable here

***Irish Shell v Elm Motors [1984] I.R. 200 – This is an important case showing that importance of the rule of precedent in the courts.

  • Costello J noted “The High Court is not bound to follow the decisions and judgments to which I have referred if there are compelling reasons for rejecting them.”
  • This was vehemently rejected by McCarthy J in the Supreme Court: “I would unequivocally deny the existence of any such principle or the propriety of any such practice.”
    • He went on to discuss the role of English judgments: “In no sense are our Courts a continuation of, or successors to, the British courts. They… would, in my view, find more appropriate guidance in the decisions of courts in other jurisdictions based upon a similar constitutional framework… .”

***Tromso Sparebank v Beirne (No 2) [1989] ILRM 57This case came to a similar conclusion.

Interestingly with regard to the House of Lords decision before 1922, it is unsure if we are bound by these decisions or are they just precedent.  In ***Exham v. Beamish, the court felt that the decision in question which was pre 1922 would have had to have been accepted as good law in Ireland before 1922. ***Minister for Finance v. O’Brien, went further saying that any decision pre 1922 was binding unless then Supreme Court moves away from them.

4) Analogising and Distinguishing precedent

  • An analogy is made when a court determines that the reasoning and principle applied in the precedent should be applied to the case before it whether due to the similarity of the facts raised in both cases or because the issues are similar.
  • A decision is distinguished when a later court decides that it is not relevant to the case before it.  This justifies the court in taking a different approach to that taken in the precedent
Prof. Goodhart: “[a]ny court bound by a case must come to a similar conclusion, unless there is a further unique fact in the case before it, which it is prepared to treat as material or unless some fact, treated as material in the previous case is absent.”
5) Precedent and Maneuverability

(a) The Supreme Court

The Supreme Court will usually apply its own decision, save in exceptional cases.

  • ***State (Quinn) v Ryan [1965] IR 70
    • Quinn was an Irish citizen. Committed larceny in England. On return to Ireland he was carried over the border to Northern Ireland. He sought to challenge s. 29 of the Petty Crimes Act 1851. Walsh J held: .  The Supreme Court which was set up under the Courts Act 1961, is not a successor to the House of Lords but an Irish creation therefore just because the House of Lords had to follow a decision does not mean that the Supreme Court has to
    • “[t]his is not to say, however, that the Court would depart from an earlier decision for any but the most compelling reasons.  The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding rule.”
  • Quinn was considered in ***AG v Ryan’s Car Hire [1965] IR 642 – Kingsmill J: “In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases.”
  • The seemingly flexible development was restated in ***McNamara v Electricity Supply Board [1975] IR 1: “If, by reason of its rigidity, a rule is found to be unsatisfactory, it is undesirable that effects to circumvent it should be made rather than it should be reconsidered.”

It seemed that the importance of stare decisis was in decline during the 60’s and up to the mid 70’s. Nevertheless, the importance of the principle was reaffirmed in two cases (***Mogul is very important):

  • *****Mogul of Ireland Ltd v. Tipperary (NR) Co. Co., [1976] I.R. 2 –
    • Facts: Six man gang blew up buildings on mining site.
    • Heldper Henchy J: “… a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous.” “Even if the later Court is clearly of the opinion that the earlier decision was wrong, it may decided in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand.”
  • **Hynes-O’Sullivan v. O’Driscoll, [1989] I.L.R.M. 349
    • This case concerned an action for libel – Defendant sought to rely on doctrine of qualified privilege as he was a TD.
    • Henchy J decided not to break precedent for several reasons:
      1. Certainty of previous cases
      2. Issue had been properly argued before the court (in all cases)
      3. The issue was a legislative and not judicial function.
      4. Restating the law would not do justice in this case.

The Supreme Court decision need not be unanimous for it to depart from a previous Supreme Court decision: ***Doyle v. Hearne [1987] I.R. 601.

  • ***O’Brien v. Mirror Group Newspapers Ltd. [2000] 1 I.R. 1
    • Court acknowledged in this decision that they are not confined to re interpreting statutes.
  • ***DPP v Best [2000] 2 ILRM 1
    • Case concerned the right for parents to educate their children at home and statutory interpretation.
    • Keane J suggests another SCt decision may be overruled – if there have been significant developments in the status quo (i.e. public views had changed so drastically to warrant a previous SCt decision unfavourable).
  • ***Finucane v McMahon [1990] 1 IR 165
    • Followed terms of ***Mogul. Two dissenting judges (Finlay CJ and Griffin J) decided two withhold judgment (although they were dissenting) so as to stabilize the law in a 3-2 majority split in overruling a prior SCt decision.
    • They felt this would “provide a degree of certainty”.

(b) The High Court

The High Court respects its own decision but departs on occasion. (The High Court is bound by Supreme Court judgments)

  • ***Kearns v Manresa Estates Ltd. (25 July 1975, unreported), High Court
    • “Although I am not bound by decisions of other judges of the High Court, the usual practice is to follow them unless I am satisfied that they were wrongly decided.”
  • ***Irish Trust Bank Ltd. v Central Bank of Ireland [1976-7] ILRM 50
    • A court of co-ordinate jurisdiction may depart from a decision where:
      1. Insufficient authority was cited
      2. Incorrect submissions advanced
      3. Nature and wording of the judgment itself reveals that the judge disregarded or misunderstood an important element in the case.
  • ***McDonnell v Byrne Engineers (High Court, unreported, July 1978)
    • With regard to the case above, the trial judge in the HCt did not follow the Carroll guidelines when awarding damages.
    • Higgins CJ of the SCt scolded this action noting: It is with real concern that this court notes that the trial judge has refused to follow the Carroll guidelines. This court will not permit this situation to continue and shall insist that its directions be respected and obeyed.”

(c) The Court of Criminal Appeal

The Court of Criminal Appeal is free to depart from the doctrine of precedent due to the fact-specific nature of the cases it hears.

  • ***People (AG) v Moore [1964] Ir. Jur. Rep. 64
    • “…the interests of justice will best be served by giving effect to our own opinions, even though they differ from some of those expressed in O’Neill’s case.”
  • This exception to the stare decisis in the Court of Criminal Appeal is to ensure that justice is the guiding notion.

6) Bypassing Precedent

There are two methods to try to bypass the doctrine of precedent (i.e. this is judges trying to escape the grip of precedent in the interests of justice)

A) Distinguishing Cases

To bypass the doctrine of precedent, judges may seek to distinguish a case from a precedential one.

  • Courts of co-ordinate jurisdiction are more likely to do this.

B) Re-labelling the Ratio Decidendi as Obiter Dictum

This is another method of bypassing precedent.

  • ***People (DPP) v Shaw [1982] IR 1
    • Case concerned the admissibility of evidence in contravention of the accused constitutional rights.
    • At first, the law as set out in People (AG) v O’Brien was accepted (evidence not admissible).
    • However, Griffin J rejected ***O’Brien noting that the test established in it went beyond the authoritativeness of the court (i.e. Griffing J regarded the test as obiter). This meant he could reason the test as not being part of the law.
    • A new test was set out which allowed for the evidence to be admissible.
  • ***People (DPP) v Lynch [1982] IR 64
    • This case disagreed with the reasoning in ***Shaw – per Walsh J.
  • ***People (DPP) v Healy [1990] ILRM 31
    • This case also disagreed with the reasoning in ***Shaw
  • ***People (DPP) v Kenny [1990] 2 IR 10
    • Griffin J reaffirmed his application of ***O’Brien in ***Shaw.

This string of cases shows how judges may manipulate the doctrine of precedent. ***Shaw begins the manipulation. ***Lynch and ***Healy disagree with ***Shaw. Griffin J in ***Kenny reaffirms his reasoning in ***Shaw and notes that this was supported by Parke J, Henchy J and Kenny J.

Topic 2 – The Irish Court System

1) Introduction

The Courts of Justice Act 1924 made provision for the establishment and provided a description of the jurisdiction of the following courts (it built upon 1922 Constitution):

  • Supreme Court
  • Court of Criminal Appeal
  • High Court
  • Circuit Court
  • District Court

The Constitutional basis for the Irish court system is found in Art. 34. 1 of the 1937 Constitution.

“Justice shall be administered in courts established by law, by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

Articles 34-38 of the 1937 Constitution govern the court system.

  • Art. 34.2 – There must be courts of first instance and courts of appeal.
  • Art. 34.3.3 & Art. 34.4 – There must be a Supreme Court
  • Art. 34.3 – There must be a High Court

The above are known as superior courts. Inferior courts are not specifically named in the Constitution, however it is said:

  • Art. 34.3.1 – They are to have “local and limited jurisdiction.”

2) The Composition of the Courts

  • The Supreme Court is a collegiate court.
  • The High Court can sit on circuit
  • The Chief Justice of the Supreme Court & President of the High Court are the highest ranking judges in Ireland.

(a) The Supreme Court

  • There are eight judges. One of those is the Chief Justice.
  • The President of the High Court is an additional ex officio member of the Supreme Court.
  • The former Chief Justice can also be an additional member, pursuant to section 5 of the Courts (No. 2) Act 1997.

If, due to illness/absence, there are not enough SCt judges available to sit, the Chief Justice can request any ordinary judge to sit as a temporary member of the SCt.

(b) Court of Criminal Appeal

Consists of:

  • 1 judge from the Supreme Court
  • 2 judges from the High Court

(c) High Court/Central Criminal Court

The High Court and Central Criminal Court are merely named differently when hearing either civil or criminal cases.

  • 36 ordinary members
  • 3 additional members:
    • President of the High Court
    • Chief Justice of the Supreme Court
    • President of the Circuit Court
      • The latter two are ex officio members (ex officio = by virtue of office or position)

(d) Circuit Court

  • 38 judges including the President of the Circuit Court.
  • 1 additional member
    • The President of the District Court is an ex officio member.
  • Ireland is divided into 8 circuits.

(e) District Court

  • 63 ordinary judges
  • 1 addition member:
    •  President of the District Court
  • Ireland is divided into 24 districts.

(f) Special Criminal Court

The Court was established pursuant to Part V of the Offences Against the State Act 1939.

  • 11 judges
    • Drawn from District, Circuit and High Courts.
  • The Court sits in panels of 3 judges.
  • There is no jury.

3) Jurisdiction of the Courts

(a) Original Jurisdiction

A court has original jurisdiction or first instance jurisdiction when it is the first court with the ability to hear the case in question.

In civil cases, jurisdiction is determined by the quantum of damages sought.

In criminal cases, jurisdiction is determined by the class of offence.

  • Summary (minor) Offences
  • Indictable (major) Offences

How might we distinguish between summary and indictable offences? Two aspects are considered:

  1. Severity of the punishment
  2. Moral guilt involved

Two cases look at these aspects:

  • ***Melling v. Ó Mathghamhna [1962] IR 1
    • Severity of punishment: over 12 months is an indictable offence (major). Therefore, anything under 12 months is summary (minor).
    • Moral guilt: this case contrasted personal smuggling of goods v. commercial smuggling of goods. There are different degrees of moral guilt for the same crime.
  • ***Con roy v AG [1965] IR 411
    • “The fact that in many or even most cases the circumstances under which the offence is committed are of a character to create a considerable moral guilt is not relevant when those aggravating circumstances are not the necessary ingredients of the offence”

i) The Supreme Court

The SCt had original jurisdiction in two situations:

  • Art. 26 – unconstitutionality of a bill
  • Art. 12.3.1 – Presidential incapacity

ii) High Court

The HCt has full original jurisdiction over civil and criminal matters – Art. 34.3.1

Civil Jurisdiction

  • ***R v R [1984] IR 296
    • A statute afforded jurisdiction of a matter to a lower court. Issue was whether the HCt still had jurisdiction.
    • Held: HCt still has jurisdiction pursuant to Art. 34.3.1
  • Injuriesboard.ie – this has limited the number of tort applications to the HCt.
    • Personal Injuries Assessment Board Act 2003
  • Art. 34.3.2 – confers exclusive jurisdiction to the HCt and SCt on the question of the validity of any law (Art. 26 reference)
  • Damages in excess of €38,092.14 are heard in the HCt.
  • The Companies Acts 1963 (1990) & 2004 also confer exclusive jurisdiction on the HCt. Only the HCt or SCt can appoint a receiver or examiner.
  • Bankruptcy Act 1988 and Competition Act 2002 confer exclusive jurisdiction to the HCt.
  • Judicial Review

Criminal Jurisdiction

  • The Court, when hearing criminal actions is named: Central Criminal Court
  • Jury is present on indictable (major) offences – pursuant to Art. 34.3.1
  • Courts (Supplemental Provisions Act) 1961 – s. 25(2) — first instance jurisdiction (murder, piracy etc.)
    • Other first instance exclusive jurisdiction:
      • Criminal Law (Rape) Amendment Act 1990
      • Genocide Act 1973
      • Geneva Conventions Act 1962
      • Competition Act 2002 – s. 11(2) — this is due to the complexity of competition law cases.

iii) Circuit Court

The Circuit Court has no inherent jurisdiction – it is a creation of statute and can therefore only do so much as statute allows.

Civil Jurisdiction

  • Quantum limit: €38,092.14
    • Statute has passed allowing for this to raised to €100,000. No commencement order was given. This is because bringing claims is cheaper in the Circuit Court and if the quantum limit is raised, more actions may be brought (Floodgates argument).

Criminal Jurisdiction

  • Has extensive jurisdiction. It hears all indictable offences, save the most grave (e.g. genocide) – this is based on the relevant gravity of the offence, discussed in ***Con roy v AG.

iv) District Court

Civil Jurisdiction

  • Quantum limit €6,348.69 (s. 4, Courts Act 1991)
  • Also operates as a “Small Claims Court”
    • This is an attempt to divert minor issues away from the court system proper. It is more adversarial (as opposed to inquisitorial)

Criminal Jurisdiction

  • New offense: Indictable offences are triable summarily
  • New court established
    • Children Court – Children Act 2001
      • This is the name given to the District Court when it hears criminal cases against children.

Now we see there are in fact three (3) type of offence:

1) Indictable

2) Summary

3) Indictable Triable Summarily

This new offence (Indictable Triable Summarily) raises several issues however:

  • Are the facts minor?
  • Has the accused waived his right to have a jury?
  • Has the consent of the DPP been given (if required)?

(v) Special Criminal Court

  • Presupposition found in Art. 38.3.1
  • Part V of the Offences Against the State Act, 1939 for use “whenever the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.”
  • Origins found in the Northern Ireland/Republic of Ireland issues. Powerful voices have called for court to be shut, citing human rights violations (lack of habeas corpus etc.) but the Gov’t is reluctant as gangland crime can be sent and effectively dealt with in the Court.

Elements of the SCt:

  • No jury
  • 3 judges minimum (this is to allow for dissenting opinions in absence of jury)
  • Judges?
    • Wide range (solicitor, barrister etc.)
    • Usually however, one HCt judge, one District Court judge and one Circuit Court judge.

 B. The Appellate Jurisdiction of the Courts

There are three types of appeals:

a)     de novo

b)    appeal on point of law

c)     appeal on facts

  • ***Hanrahan v Merck Sharp and Dohme
    • Issue of fact: were the emissions from the defendant’s factory responsible for the damage to the plaintiff’s land, animals and person?
      • Primary facts: factory had omissions – land, animals and people suffered health issues.
        • But, was it the emissions that caused these issues?
        • Secondary finding would be: Yes or No.
        • HCt held: the emissions did not cause the damage. HCt relied on scientific evidence.
        • However on appeal: The SCt stated that was an incorrect logical deduction. “The scientific evidence only shows what could or should have happened in the way of damage by toxic emissions.  In the light of what did happen in the way of toxic damage, I consider that the defendants’ evidence could not be held to rebut the plaintiffs’ case. Theoretical or inductive evidence cannot be allowed to displace proven facts. … It would … allow scientific theorizing to dethrone fact [if found otherwise].”

(i) The Supreme Court

Several articles in the Constitution describe the position of the SCt in the Irish Court Hierarchy.

  • Art 34.3 – SCt is primarily an appellate court
  • Art. 34.4 – SCt shall have appellate jurisdiction from all HCt decisions and other courts as prescribed by law.
  • Art. 34.4.4 – SCt can find legislation unconstitutional (has power of judicial review)
  • Art. 34.4.6 – SCt is the final court of appeal in this jurisdiction
    • NB: cases can be appealed to both the ECt

The SCt can give judgments on appeal by way of case stated:

  • There are two types of case stated:
  • Final decision: a decision has been reached in the lower court and the SCt is being asked if the decision was correct.
  • Consultative: question on a point of law is sent up to the SCt, such that the lower court can apply the correct law. This is while a case is still in process.

How are these applied in the courts?

  • District Court – judge must send question up – unless frivolous
  • Circuit Court – question can be sent up – judge discretion
  • CtCA – Appellate must get a certificate from the lower court judge. A rejection can be appealed – this is when you become an applicant.

Both prosecution and defense can appeal.

  • Prosecution cannot appeal an acquittal – but they can appeal on a point of law. (fact v. law determination) So if a jury acquits somebody, this cannot be appealed – what can be appealed is, for example, a claim that the trial judge’s directions to the jury were incorrect/erroneous on a point of law.

The CtCA is usually the final appeals for criminal cases – however if there is a point of law in question this may be sent to the SCt – very rare.

ii) Court of Criminal Appeal

The CCtCA is the final court of appeal for criminal matters except in cases raising issues of exceptional public importance.

  • ***People (DPP) v Murray (capital murder)

Legislation has been put on the statute books to remove this court and transfer its powers to the SCt, but this has not yet been enacted. This is most likely due to the SCt already being swamped.

  • An appeal from the Circuit Court can be a de novo appeal.
  • An appeal from the District Court may only come from a case stated procedure (as noted earlier, this is where a point of law only is raised. No questions of fact will be entertained).

Note: The prosecution cannot appeal the effect of an acquittal for an individual accused (per s. 11, Criminal Procedure Act 1993); it can however appeal an “unduly lenient” sentence (s. 2, Criminal Justice Act 1993).

This court also has jurisdiction over certain appeals (e.g. bails).

iii) High Court

The HCt can:

  • Hear de novo appeals from the Circuit Court
  • Hear points of law from the District Court through the case stated procedure.

iv) Circuit Court

The Circuit Court can hear appeals de novo from the District Court

The Circuit Court also acts as an appeal court for the Labour Court, Unfair Dismissals Tribunal and the Employment Appeals Tribunal.

v) Court of Justice of the European Union (CJEU)

Ireland is bound per Article 234 of the EC Treaty.

There are two types of referrals:

  • Mandatory referrals – SCt must refer a point of law as it is final appeal court in Ireland
  • Discretionary referrals – any court may send a question at their discretion.
    • Every court in Ireland (e.g. Circuit, CtCA, HCt etc.) except the District Court has made at least one referral to the CJE

4. Reform of the Court System

Proposals made by the Woolf Committee led to reform in England and Wales. Keane CJ reviewed these proposals in 2001 .

The Woolf Committee recognized delay and costs as the major problems. It identified the following underlying principles that should be sought/followed:

  • Justice
  • Fairness
  • Proportionality
  • Speedy resolution of cases
  • Understandable
  • Responsive to the needs of litigants
  • Effective

Keane CJ went on to make some recommendations regarding the Irish system. That:

  • Establishment of two-tier first instance system (as opposed to current three-tier system)
  • Establishment of two-tier appellate structure.
  • A Working Group be set up – This happened in 2001.
    • The working group aims to “examine the existing jurisdiction of the courts of Ireland and make recommendations as to any changes which, in the opinion of the Working Group, are desirable in the interests of the fair, expeditious and economic administration of justice.”
      • The Working Group has three stages:
        • Criminal Court System – completed in 2003
        • Civil Court System – ongoing
        • Unification – not yet started

The main proposals that came from the first report:

  • Considered but rejected a National Criminal Court
  • Circuit Court should be first port of call for serious crimes (rape, murder etc.)
    • Favorable geographic location & expeditious nature
    • Although special (extra) procedures must be put in place for serious cases
    • No recommendations were made for treason, terrorism, genocide etc. – mainly because these are so rare and the Special Criminal Court still exists.
    • De novo  and appeal (case stated) systems were seen to work well – according to 65% surveyed on the matter.
    • **Removal of s. 3-4, of the Courts and Courts Officers Act 1995 They felt that the CtCA should not be abolished.

The Law Reform Commission agreed with the Working Group on this point. They noted that things have moved on since the 1995 Act. The Courts have become very busy and the abolishment of the CtCA would overload the SCt. – They also noted that the Criminal Procedure Act 2010 has given the CtCA more functions – indicating that it is getting more work and is therefore making more use of itself.

  • Cadre of judges – To combat inconsistencies in precedent in the CtCA (composed of 2 SCt and 6 HCt judges)
  • Judicial Case Management System – judges would be put under a duty, as in England and Wales, to get involved in cases by checking for malpractice among lawyers in unnecessarily delaying cases.

In light of the recommendations made by the first Working Group, a second working group was set up. Interestingly, this group felt that a new appellate court should be established, abolishing the CtCA, which would hear civil and criminal cases so as to lessen the SCt’s load as it is usually inundated with civil cases.

As a result of this disparity, it is useful to understand why the first working group rejected such a proposal even with the seemingly obvious option of decreasing the delay and burden on the SCt. The reasons are:

  • Would not assist in the clearing of the backlog of cases to the Supreme Court;
  • Would generate significant costs in the long run as it would not be an efficient way of clearing the backlog of appeals to the Supreme Court;
  • Would be unable to deal with constitutional issues;
  • Would run the risk of challenge and the consequent disruption from that;
  • As judges cannot be statutorily appointed, judges would have to be appointed to other courts and assigned by Presidents of those Courts to the new court Such a court would lack its own dedicated judicial panel.

Civil System

Moving onto the second stage, the Civil System, it has been noted the Working Group has not yet produced a report. However, an earlier 1996 report favored the approach taken in England and Wales.

Nevertheless, a 2010 LRC report has deal with the issue. In the context of Civil proceedings:

a) Ensure that the parties conduct the proceedings in accordance with case conduct principles

(i) Issues between parties should be identified, defined, narrowed (where possible) and prioritised as soon as possible;

(ii) Proceedings should be conducted in a just, expeditious and cost-effective manner; and

(iii) The parties should be encouraged to use alternative dispute resolution procedures to settle the whole or part of the proceedings where practicable.

            b) Have regard to the need to allot its time and its resources appropriately; and

  c) Deal with the proceedings in a manner that is proportionate to their nature, and the parties’ resources.

The legislature has reform the civil system in some ways:

  • Personal Injuries Assessment Board Act 2003
  • Personal Injuries Assessment Board (Amendment) Act 2003
  • Civil Liability and Courts Act 2004

The PIAB Act 2003 established the Personal Assessment Injuries Board (now know as the Injuries Board as of 2008). See www.injuriesboard.ie

Why was PIAB set up in the first place?

PIAB was set up to reduce costs. This was achieved by:

1)    Removing lawyers from the process

  • On the question of representation…
  • ***O’Brien v PIAB [2008] IESC 71
    • Issue: by declining to accept or act upon the authorisation of the applicant, was the Board acting in breach of s. 7 of the PIAB Act 2003 and so acting ultra vires and/or his constitutional rights?
    • In assessing the statute, MacMenamin J (HCt) and Macken J (SCt) agreed that the Injuries Board was in contravention of statute in their refusal to deal with the claimants legal counsel.
    • Macken J focused on three aspects of the Injuries Board so as to reach this conclusion:
      • 1) Similarity between court proceedings and Injuries Board proceedings.
      • 2) A lack of “equality in arms”
      • 3) Constitutional right to legal representation
  • Solicitor’s fees?
  • ***Plewa & Giniewicz v PIAB [2010] IEHC 516
    • Issue: whether solicitors fees incurred through applying to PIAB could be reimbursed by the defendant?
    • In deciding whether or not to award fees, the board will consider the totality of the claim, and whether there were aspects of the claim that would be “reasonably and necessarily incurred by the claimant.”
    • Held: PIAB was correct to decide how much to award in legal fees reimbursement and they had a discretion in all circumstances.
      • Note however: The 2003 Act was amended by the 2007 (Amendment) Act. If a claimant rejects an award, and the respondent accepted it, and the claimant goes to court  failing to get a higher award, they are liable not only for their legal costs, but for the defendants legal costs as well. This made PIAB awards acceptance levels much higher in 2007 than before. 

2)    The Book of Quantum

What about the Civil Liability and Courts Act 2004?

  • The 2004 Act modified procedures for these claims in court.

    • s. 15-16 allows for a mediator to be appointed. It may be argued this forms a dichotomy in that a mediator is being appointed to mediations. Nevertheless it is an extra expense.
    • s. 20 allows for court experts to be appointed (doctors etc.) The President of the respective court has the authority to set up these panels. The losing side will pay for the cost of these expert panels. 
    • s. 26 allows for dismissal of claims if fraud as to the extent of their injury can be shown.
      • The onus of proof rests with the defendant/respondent:

        • ***Ahern v Bus Eireann [2011] IESC 44
          • Here, Bus Eireann alleged, pursuant to s.26, that Ahern exaggerated the injuries she suffered on a bus.
          • Held: Onus of proof rests on defendant.
    • s. 29 states that criminal consequences = €100,000 and 10 years imprisonment
    • s. 22 requires that any court in determining personal injury claims “should use the Book of Quantum as a guide.”
    • s. 7 changed the limitation period to 2 years from the date of accident.

On a final note, there has been some criticism of the PIAB board, specifically in terms of its membership. It has 12 members drawn from a wide range of sources (barristers, medical experts, solicitors etc, politicians etc.. Six of these are specified by s.56, 2003 Act:

  • 1 from IBEC (business) – Defendant interests
  • 1 from IIF (insurance) – Defendant interests
  • 1 from IFRA (financial regulatory authority) – Defendant interests
  • 2 from ICTU (congress of trade unions) – Plaintiff interests
  • Director of Consumer Affairs – Plaintiff interests

The criticism is obvious in that the interests do not seem to be shared equally. 

Topic 3 – Judicial Independence 

1) Introduction

Judicial independence is enshrined in the Constitution.

Art. 35.2 states “all judges should be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”

Art. 35.3  provides that “[n]o judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position of emolument.”

Remember also that Art. 6.1 links this judicial independence with the doctrine of separation of powers. This is so the separation of powers may be policed impartially and without fear of individual or collective disadvantage. 

We will now look at three cases which illustrate the importance of judicial independence.

  • ***McKenna v An Taoiseach [ 1995] 2 IR 10
    • McKenna concerned a challenge to a proposed amendment to the constitution to allow divorce. McKenna argued that it was unconstitutional for the government to only fund one side of the campaign.
    • Issue: Was it unconstitutional for the government to only fund one side of the referendum campaign?
    • Law: Nothing explicit in Articles 46 and 47, therefore nothing precluding them from favoring one side over another. However, “as guardians of the Constitution and in taking a direct role in government either by amending the Constitution or refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorized interference by any of the organs of the State.” (per Hamilton CJ)
    • As a consequence, a Referendum Commission was set up in the Referendum Act 1998
    • This was then further amended by the Referendum Act 2001 where there role was reduced.
  • ***Crotty v An Taoiseach [1987] IR 713
    • Issue: Title III of the Single European Act was in conflict with Article 29.4 of the Constitution. (giving powers, in relation to foreign policy formerly held by the people to EU institutions).
    • Law: Article 29.4 gives the government sole power to engage in international relations.
    • Application: “…this freedom does not carry with it the power to abdicate that freedom.”  – The assent of the people is a necessary prerequisite.
    • Result: Unlike the rest of Europe, Irish citizens vote on new EU treaties if they could be regarded as amending the Treaties Ireland has already signed up to.
      • Some criticisms have been raised however. 
        • It is seen as somewhat unfair for Ireland to hold up the entire EU to have a referendum.
        • It has also been argued that sometimes we are voting unnecessarily – e.g. we didn’t need a referendum for the Lisbon Treaty (because it was changing administrative channels and not much else). 
  • ***Doherty v Government of Ireland & Another [2010] IEHC 369
    • A seat in Donegal South West constituency was vacated in June 2009. Three attempts were made in the Dail to get by-elections (once in 2009 and twice in 2010).On each occasion, through use of the party WHIP system, the motion was defeated.
    • Issue: Failure to issue by-election writ within a reasonable period of time amounted to a denial of the democratic rights and was contrary to Articles 5, 16.1 and 16.2 and the Electoral Act 1992.
      • Art. 16.1 – Right to vote at 18.
      • Art. 16.2 – There must be a certain ratio of constituents represented.
      • Art. 5 – Ireland is a democratic state.
    • Held: “…a citizen’s constitutional rights are trenched upon… when no effect is given to rights for representation… These are rights which… for[m] part of the ‘constitutional contract’ between the citizen and the State.” Reading s. 39(2) of the Electoral Act 1992 so there is a reasonable time frame for a writ to be moved “gives effect to the sub-section in a manner which honours the Constitutional provisions in question.”

Art. 35.2 (judges should be independent) does not confine the judge’s duty of impartiality to judicial dealings with the other two powers (the executive and legislature). This is confirmed in the oath every judge must take on appointment which is set down in Art 34.5.1.

2) Judicial Appointment

Articles 35.1 and 13.9, when read in conjunction, form the basis of judicial appointment in Ireland. From reading Art. 35.1 it seems that the President appoints judges. This is qualified however by Art. 13.9 where we understand that the government actually appoints judges since the powers conferred by Art. 35.1 are “exercisable and performable by him only on the advice of the government… .”

There is a risk when the Government appoints judges as they may appoint those judges who conform to party political lines. However, this has not been the case. There are several reasons hypothesized as to why this might happen; lawyer skills/objectivity and future career planning are just some. 

The Government too, very rarely criticize judges. Even when judges make decisions that are embarrassing to the Government, the McCrystal and McKenna cases are good examples. One case stands out however. The Whelehan Case threw light on the judicial appointment process in Ireland

****The Whelehan Case

  • The Taoiseach decided to appoint Attorney General (Whelehan) as President of the High Court.
  • There is an informal convention that current AG should have the first refusal of any vacant judicial office.
  • Whelehan failed to process an extradition request from Northern Ireland for Fr. Brendan Smyth (sex offender). It took about 7 months for the request to be processed. National scandal ensued –
  • Ulster television aired a documentary in October 1994, suggesting delay due to Fr. Smyth’s status as a religious
  • The appointment led to the downfall of the Labour-Fianna Fáil government, and Whelehan himself stepped down after 6 days in the new role.

All this threw a spotlight on how judges are appointed and resulted in the establishment of the Judicial Appointments Advisory Board in Part IV of the Courts and Courts Officers Act 1995.

Membership of the Judicial Appointments Advisory Board is as follows:

  • Chief Justice 
  • Presidents of the High Court, Circuit Courts and District Courts.
  • Attorney General
  • Barrister
  • Solicitor
  • Three people nominated by the Minister for Justice.

Their job is to invite applications and hold interviews. The Board recommends seven candidates for a position (in no order) to the Minister for Justice. The criteria for a candidate is found in s. 16(7).

“The prospective Judge

  • Must display a degree of competence and a degree of probity appropriate to and consistent with the appointment concerned,
  • Be suitable in terms of character and temperament,
  • Be generally suitable, and
  • Complies with the requirements of section 19 of this Act.”

Section 19 refers to courses of training or education, or both, as may be required by the Chief Justice or President of the court to which that person is appointed.

The Government’s obligation is “firstly to consider for appointment those persons… recommended by the Board.” However, the Board is not involved where the Government selects a person who is a judge already for another position or where the vacancy is that of the Chief Justice or President of any court.

Note: There are other minimum requirements:

  • s. 28 of 1995 Act provides that a judge of the Circuit COurt of two-years’ standing could be appointed to the HCt or SCt. This bypasses the old law (prior to 1996) stating that only a practicing barrister of 10 years’ standing could be appointed to such a role. 
  • s. 4 of 2002 Act provides that a practicing barrister or solicitor of 12-years’ standing could be appointed as a judge to the HCt or SCt.
  • s. 30 of 1995 Act provides that a practicing solicitor of ten years standing may be appointed as a Circuit COurt judge (previously only a barrister could fill this role).
  • s. 29 (2) of Courts (Supplemental Provisions) Act 1961 provides that a practicing barrister or solicitor of not less than ten years’ standing can be appointed as a judge of the District Court.

–Criticisms of the Judicial Appointments Advisory Board

  • Limited function in that it co-ordinates entry-level judges only.
  • The criteria set out in s. 16(7) of the 1995 Act are vague (subjective criteria)
  • Other countries have much more rigid criteria (e.g. Canada) (See below for further information regarding the Canadian criteria)
  • The final selection is ultimately a political one (This is the most serious of criticisms put against the board).
  • It could be argued that the current process is contrary to Art. 34 of the Constitution which states “justice shall be administered in courts established by law… and … shall be administered in public.”

In June 2012, a meeting in Dublin of all EU judges decided that the appointment of judges in all EU countries should be a politically neutral one. This is obviously not necessarily the case in Ireland.  

Contrast now s. 16(7) with the Canadian criteria. 

“Professional and competence indicators include: general proficiency in the law; intellectual ability; analytical skills; ability to listen; ability to maintain an open mind while hearing all sides of an argument; ability to make decisions; capacity to exercise sound judgment; reputation among professional peers and in the general community; areas of professional specialisation, specialised experience or special skills; ability to manage time and workload without supervision; capacity to handle heavy workload; capacity to handle stress and pressures of the isolation of the judicial role; interpersonal skills – with peers and the general public; awareness of racial and gender issues and bilingual ability. Relevant personal characteristics also include: a sense of ethics, patience, courtesy, honesty, common sense, tact, integrity, humility and punctuality.”
There is an indisputable contrast between the Irish and Canadian criteria. Although one must ask the question whether the Canadian criteria are merely semantics, for the criteria are disputable at best. Also, it may be said that such criteria are implicit in the appointment of any judge in any jurisdiction so there is no need to expressly provide for them, as is so in Ireland. 
3) Remuneration
Prior to October 2011, Art. 35.5 provided “the remuneration of a judge shall not be reduced during his continuance in office.” However following a referendum, Article 35.5 now provides that remuneration not be reduced save where:
  1. The remuneration is subject to taxes, levies or other charged imposed by law on persons generally or of a particular class
  2. Where reductions are made by law to the remuneration of persons whose remuneration is paid out of public money and such law states that the reduction is in the public interest.

The core principle has remained the same and therefore the amendment is almost identical. It has been argued that the referendum was unnecessary following ***O’Byrne. Nevertheless, the context must be first understood.

  • Pension levy was imposed on all civil servants by the Public Interest Act 2009. It was advised that judges should be exempt from paying this. In light of O’Byrne, the Chief Justice set up a voluntary levy scheme. Only 22 of the 147 judges did not contribute. 
  • ***O’Byrne v Minister for Finance [1959] IR 1 – per Kingsmill Moore J
    • Concerned a widow of a former judge who claimed that her husband had paid income tax and this was a reduction contrary to 35.5. (3-2 split against).
    • Issue: Does a reduction of a judge’s salary by taxes contravene Article 35.5?
    • Law: The literal approach v. the purposive approach.
    • Literal approach: Income tax decreases salary and is therefore a reduction contrary to Article 35.5.
    • Purposive approach: Read Article 35.5 in light of Article 35.2.
      • “would be under temptation to be subservient… I fail to see how a tax which is non-discriminatory against judges, can assail the judicial independence.”
    • But what do the references to Articles 35.5.2 and 35.5.3 mean?
      • Art. 35.5.2 – Remuneration is subject to the imposition of taxes, levies or other charges that are imposed by law on persons generally or persons belonging to a particular class.
      • Art.35.5.3 – Allows for retrospective reductions to be made to judicial pay – clearly has the 2009 act in its head when being drafted. The exemption to the pension levy led to the referendum being held.

–Criticisms of the Amended Art. 35.5

  • It was a rushed piece of legislation, and heavily pushed through the Oireachtas. There were only six hours spent on the wording of this particular legislation.
  • As a result the language is vague and therefore open to abuse.  – e.g. “stated to be in the public interest” – this means that this final precondition, is not a precondition at all. What looks like a safeguard is actually meaningless. How could a saving not be in the public interest. A false impression of vigour is made, when this is not the case.
    • e.g. – “Persons belonging to a particular class.” – “classes of persons” – Art. 35.5.2 and Art. 35.5.3
  • There is a lot of scope in deciding who judges are going to be compared to. The government could technically link the reduction of judicial pay, to a reduction in pay of people of a certain name (all people named ‘John’ for example). This is not likely, however, the issue is that it is still open to abuse, however unlikely it may be.
  • “Proportionate” does not mean the ‘same as’. Deducting 10% from certain holders of public office may technically warrant a deduction of them of 30% or 40% for example.
  • **Judges are a separate branch of power and therefore supposed to be protected from abuse by those powers. There is a clear difference between those categories of people. It was this concern (judges are not the same as all types of public office holders) – that led to Canadian Cases being referred to as prudent examples:
  • ***Provincial Judges Reference  [1997] 3 SCR 3 (SCC)

    • Claimants in this case were a number of criminals arguing they would not have the benefit of a fair trial since judicial pay had been reduced.
    • Issue: Had judicial independence been compromised because judicial pay had been reduced?
    • Held: Majority decision (5-1) held that “any changes … require prior recourse to a special process, which is independent, effective and objective.”
      • In light of this an independent body was established to set or recommend the levels of judicial remuneration. (per Lamert CJ)
    • Criticism: Per La Forest J, criticism was given with regard to this ruling. In his dissenting remarks it was made clear that “a reasonable person … would believe judges are made of sturdier stuff than this.”
      • Also, it was remarked that judges “are capable of ensuring their own independence by an appropriate application of the Constitution.” -Meaning that judges can bring a case to challenge a reduction in judicial remuneration in the courts, in light of its perhaps unconstitutionality.

The position and independence of the judiciary in Ireland is sometimes overlooked. Given the separation of powers between the executive, legislature and judiciary, in any general political analysis of this system in Ireland, the separation of powers in reality is not made up by three powers, but instead two. The Executive has a substantial amount of the power along with the legislature and with the party WHIP system in place these two powers are very closely knit. Therefore the judiciary is the only real check and balance the system has. It must be kept independent at all costs. 

4. Removal of Judges

The removal of judges is a contentious issue.

Art. 35.4.1 provides a judge shall not be removed from office except “for stated misbehavior or incapacity”, and then only upon resolutions passed by Dail Eireann and by Seanad Eireann calling for his removal.

District and Circuit Court judges are not protected in the Constitution. Statute has done this instead. 

  • s. 20 of the Courts of Justice (District Court) Act 1924 
  • s. 39 of the Courts of Justice Act 1924

These provision were both carried over by s. 48 of the Courts (Supplemental Provisions) Act 1961

But, why is it so hard to remove judges?

  • Historically, judges were removed if they displeased the ruler (monarch) and therefore they held their position at the will of the ruler. This encouraged judges to be less than objective.
  • In the mid 17th century this was changed. In England “The Glorious Revolution” shifted power from the monarch towards Parliament. Following this, Parliament brought various provisions in place which would limit their power to remove judges.
    • This comes down to judicial independence being an important aspect of the separation of powers and inherent in the nature of a democratic State. 
    • This is replicated in Art. 35.4 of the Irish Constitution.

However, there are many issues with the Art. 35.4 in the Constitution.

  • “Stated misbehavior” & “incapacity” – what do these mean? There is no legislation providing any further definition of these terms or criteria.
  • There is no mid-range option (removal or tenure)
  • The removal of a judge is known as an impeachment process. Issues with this process were highlighted in the Sheedy Affair and Judge Curtin Case (***Curtin v Clerk of Dail Eireann).

–The Sheedy Affair (1999)

  • Justice Flaherty, a SCt judge was given an outline of a case by friends of Sheedy.
  • Flaherty J personally called the County Registrar asking if the case could be re-listed (to be heard afresh by the same court but of a different composition). Sheedy was acquitted in the re-hearing before Kelly J in the HCt (instead of Matthew J as would have been the correct procedure).
  • It was subsequently determined that the case would not have been re-listed if not for Flaherty J calling the County Registrar.
  • Result: There was a recognition that an impeachment process should be found.
    • Committed on Judicial Conduct and Ethics was established.
      • In their report, they suggests a Panel of Inquiry be set up to investigate all claims of judicial misconduct and that there should be a range of sanctions available to the Panel, not just the recommendation that the judge be impeached by both Houses.
    • Furthermore, the Twenty-second Amendment to the Constitution Bill 2001  was proposed. It lapsed however as the requirements were considered far too onerous to impeach a judge (e.g. 2/3 vote required as opposed to a simple majority).

All progress towards the establishment of this Council stopped with the Judge Curtin case.

–Judge Curtin Case (***Curtin v Clerk of Dail Eireann)

  • Judge Curtin was charged with possession of child pornography. Evidence found against him was excluded on certain constitutional grounds.
  • A Joint Committee was established to gather evidence to help the two Houses decide whether to impeach him or not. Per s. 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 as amended, Judge Curtin was asked to produce his computer. After refusing to do so the Oireachtas decided to commence impeachment proceedings which were challenged by Judge Curtin.
  • Two grounds of appeal relevant to judicial independence:
    1. The impeachment process was inconsistent with Art. 35.4.1.
    2. It is contrary to the concept of judicial independence to compel a judge to give evidence against himself.
  • Held: Judge Curtin lost the case. He resigned within days after 5 years of service which entitled him to a pension scheme. “The principle of judicial independence does not exist for the personal or individual benefit of the judges, even if it may have that incidental effect. It is a principle designed to guarantee the right of the people… to have justice administered in total independence, free from all suspicion of interference, pressure or contamination of any kind.” (per Murray CJ)

Subsequently the  Heads of Judicial Council Bill was proposed in August 2010 – it has not yet come before either House.

Some important Heads are:

  • Head 20
    • Establishes the Judicial Conduct Committee comprising eight judges and three lay members appointed by the Government.
      • “Breach of judicial conduct” = misconduct by a judge whether in the execution of his or her office or otherwise, and whether generally or on a particular occasion, which constitutes a departure from acknowledged standards of judicial conduct and brings the administration of justice into disrepute and for this purpose.
      • “Misconduct” = any act or omission
  • Head 26
    • Informal investigations may be taken by the Chief Justice or President of relevant Court at the request of the Judicial Conduct Committee.
    • Investigating judge may recommend medical or other assistance as deemed appropriate.
  • Heads 27 & 28
    • Non-minor complaints would be investigated formally by a Panel of Inquiry
  • Head 30(1)
    • “It may include in the report any recommendations it considers necessary for the purpose of safeguarding the administration of justice.”
  • Head 30(3)
    • Allows for advice to be given to judge under scrutiny.
    • Recommending an appropriate course of action.
    • Recommending a procedural or organizational change.
    • Issuing of a reprimand.

Nothing has progressed since the Judge Curtin case. However Denham J (as she then was) noted the need for such a council to be established on her appointment as Chief Justice in 2011. It has also been noted that it remains a priority for the Minister for Justice, Alan Shatter.

Please note the recent controversy surrounding judicial independence and Mr. Justice Nicholas Kearns. See the link here for recent article. 

Topic 4 – The Irish Legislative Process

1) Introduction

  • Legislation – it is both an adjective and verb.
    • Law which has been promulgated (enacted) by a legislature or other governing body.
    • Process of making law.

Some characteristics of legislation are:

  1. Written and inflexible
  2. Abstract
  3. Precise
  4. May only be stated in one way.

2) The Division of Legislative Power

The important articles in the Constitution to consider are:

  • Art. 15.2.1 – The sole power of making law is given to Oireachtas. Explicitly states that “no other legislative authority has power to make laws for the State.”
  • Art. 15.1.1 – “The National Parliament shall be called… the Oireachtas.”
  • Art. 15.1.2 – “The Oireachtas shall consist of the President and two Houses…”, the Dail Eireann and Seanad Eireann.

Legislative power is not distributed evenly between the Houses (Dail > Seanad). Usually, Bills originate in the Dail. The Dail also has primacy over the Seanad in four areas:

  1. Art. 23 – Resolution procedure (If the Seanad rejects a bill or makes amendments or does nothing with it for 90 days, the Dail can pass a resolution, deeming the Seanad to have passed the bill – even if it was explicitly rejected.)
    • This has only been done twice. This has been argued to act as a significant restraint on the Seanad in terms of it challenging the Dail. However, even if at most the Seanad can delay legislation, by delaying it, they can perhaps allow time for reflection on the necessity of the said legislation – it potentially allows for more debate. 
  2. Art. 21 – Money Bills must be initiated in the Dail.
    • They are sent to the Seanad for recommendation. They have only 21 days to consider these bills. Why is this the case? Remember the saying “no taxation without representation” – well, the Seanad have not necessarily been democratically elected and therefore are prohibited from determining such issues. See the table below for a comparison of the Houses. 

Dail Eireann

Seanad

166 TD’s

60 members

TD’s elected by all citizens over 18

11 members nominated by the Taoiseach

TD’s represent individual constitutencies or areas.

6 by University graduates

43 members are elected by the Oireachtas and County Counsellors

Although various non-political bodies are involved in nominating prospective nominations for election, it is only incoming Dail Deputies, incoming senators that have the vote and therefore it is not representative of the people. Often times you find political pressure put on the nominating bodies who doesn’t have expertise but is an up and coming politician.

Per Art. 18.7.1 – Vocational Panels include:

  • Cultural and Educational Panel
  • Agricultural Panel
  • Labor Panel
  • Industrial and Commercial Panel
  • Administrative Panel
3. Art. 24 – Imposition of time limits for urgent legislation.
4. Art. 46.2 – Referendum Bills must be initiated in the Dail.
Article 18.8 also indicated the Seanad’s subordinate status as it has no existence independent of the Dail.
There has been extensive debate over whether the Seanad should be reformed or abolished. Taoiseach Enda Kenny expects to table a referendum by the latter half of this year.
It is part of Fine Gael’s manifesto to abolish the Seanad.
  • This would be very complex (would have to amend approx. 75 articles of the Constitution.)
    • The first time this suggestion was made was in 2009 by Enda Kelly (Taoiseach) – his argument was that 2/3 of the EU countries have unicameral legislatures, and that those countries with bicameral parliaments had much larger populations.
    • Usually there are elements of a federal system in those countries with a bicameral legislature (e.g. UK).
    • Even though there are more unicameral than bicameral, it does mean that 5/6 of EU citizens live in countries where there are two houses of Parliament. These countries tend to be the most stable politically and influential in the EU.
    • The reason Ireland has a bicameral system is because of its history in lacking a Democratic Mandate.

The Seanad does not have a distinctive role in the legislative process, for 3 reasons:

  • Junior party by virtue of 4 articles above
  • Because Taoiseach can nominate 11 – virtually guaranteed that party in majority in Dail will have majority in Seanad.
  • Over politicization of political process.

Art. 27 may be invoked – it is an attempt to redress the power disparity. 

In total there have been 11 reports written on the reform/abolition of the Seanad, however, none have been published. The most recent was in 2004 and it proposed reform as opposed to abolition.

–Report on Seanad Reform 2004

The report proposed extensive reform of the Seanad rather than abolition.

  • Removal of vocational panel system
  • Increase in senators to 65 members
    • 32 should be directly elected
    • Of the 32, 26 should be elected by everyone and current 6 university senators (recommended the retention of the 6 university senators because these are usually the most engaged.)
    • 20 Indirectly elected (retained) (allows for a connection between local and national politics – this is arguable since Ireland is so small)
    • 12 nominated by Taoiseach – but constraints would be placed on this (e.g. under-represented groups could be appointed)
    • 65th member current Cathaoirleach – when he retires there would be only 64.
  • Seanad election should be uncoupled from Dail elections (for the 32 directly elected) –the indirectly elected would be related to the incoming Dail elections.
  • Seanad should be given specific legislative functions. (Seanad should be focused on long-term/medium term issues (in contrast to the Dail which is focused on issues at hand)) (perhaps specific competence over EU legislation).
    • By virtue of the Lisbon treaty, the Seanad has been given powers to scrutinize EU legislation – but they do not use these powers.

In September 2012, a group of political figures and commentators published a consultation paper, again proposing reform.

–Consultation Paper, Quinn et al. 

  • Focused on reform of the Seanad. It noted that for many of the 11 reports, a constitutional amendment was required.  They instead did not want the burden of a constitutional amendment.
  • Noted that there is nothing set out in the constitution requiring the vocational panel to be confined to the individual groups (this was set out in legislation) – so why not simply enact legislation to mean that every citizen can vote on one of the 5 panels – perhaps based on expertise or your beliefs.
  • Legislation to give effect to the 7th amendment of the Constitution (everyone who has a degree from any college in Ireland can vote on the university panel). Noted that if everyone could vote, the university panel would just be one of many panels and not have preference anymore.
  • Legislation to require Taoiseach to nominate Senators to represent otherwise disenfranchised citizens.
  • Seanad should review legislation (distinctive role).
  • Abolition is on the basis that it is not working – we should try to fix it first before abolishing it.

A number of parties now are beginning to say that they appreciate the Seanad now – saying that it should have an enhanced role

3) The Legislative Process

Per Art. 15.2.1, only the Oireachtas has the power to legislate for Ireland.

There is a five stage process for a bill to become law. These stages are set out in the Standing Orders of Dail Eireann and the Standing Orders of Seanad Eireann.

  1. Introduction of Bill
    • Short and long title with short description.
  2. Debate on general principles
  3. Committee Stage
    • The bill is parsed clause by clause, word by word. Amendments can be proposed, but they must be in line with the overall principles of the bill.
    • There are 4 different types of committees:
      • Committee of the Whole House – this is disruptive to daily political functions and is therefore only adjourned in emergencies.
      • Select Committee (A) – Particular members of the House are identified, proportional to their party representation in the House – This committee can invite outsiders (non-elected individuals) to come in and talk about the bill to see how it might be improved.
      • Select Committee (B) – Same as above, but cannot invite non-elected individuals to give opinions.
      • Joint Committee – Takes membership for the Dail and Seanad. Typically they amalgamate two different committees.
  4. Report Stage
    • The committee looking at the bill will give the report to the Dail and if an amendment was recommended, it is debated and then rejected or committed. However, due to the WHIP system, they are rarely accepted.
  5. Final Stage
    • There is a vote and the Bill is sent to the Seanad. The Bill will begin the second 5-stage process in the next House.
    • In most cases, the Seanad has 90 days to get back to the Dail. For taxation bills it is 21 days.

After this process is complete, in both Houses, a motion is proposed “[t]hat this bill do now pass.” The first House takes the final vote. The Bill is then forwarded to the second House but does not become law until signed by the President.

  • Art. 25.1 – The President must sign a Bill into law.
  • Art. 25.2.1 – Obliges the President to sign such a Bill into law not earlier than the fifth and not later than the seventh day after the date in which it is presented to him. However, the President may refuse to sign the Bill into law for two reasons:
    • Art. 26 – (unconstitutionality) – refers to SCt.
    • Art. 27 – If Art. 23 is invoked (Dail deems the Seanad to have passed the bill even when they haven’t) – under Art. 27, if the majority of the Seanad and 1/3 or more of the Dail sign a petition stating their belief that Art. 23 was abused, the President cannot sign the bill. It is then put to the people. Alternatively, the Oireachtas can be dissolved, and the bill can be the focus of the election campaign (this has never happened but is an option) – it is an attempt to redress the balance between the Seanad and Dail (See above the disparity in power between the two)
  • Art. 25.4.1 – A Bill shall become law upon the President signing it, unless an intention to the contrary appears.
  • Art. 25.4.2 – The Iris Oifigiuil must state that the Bill has become law after being signed by the President.

The effects of this entire process were considered in:

  • ***Minister for Justice v Adach [2010] 3 IR 402Adach was subject to a EU arrest warrant. He wished to appeal the judgment of the High Court  and initiated a process to do this. The problem was that the European Arrest Warrant Act 2003 was amended by s. 12(f) of the Criminal Justice (Miscellaneous Provisions) Act 2009 – Adach argued that it was not available to him to read anywhere – which it wasn’t at the time
  • Issue: When does a piece of legislation become law?
  • Held: “No other action [(other than publication in the Iris Oifiguil)] appears to be necessary in order that the Bill becomes law and, in particular, the publication of the Bill itself, either in print or in electronic form, does not appear to be necessary…” Hardiman J applied Art. 25 & 24.

4) Categories of Legislation

There are two broad categories of legislation

  • Primary legislation
    • i)Acts to amend the Constitution
    • ii) Public general Acts
    • iii) Private Acts
  • Secondary legislation

–Primary Legislation

   i) Acts to amend the Constitution

Art 46.2 provides that every proposal for an amendment shall be initiated in the Dail and be passed by both Houses. After it shall be submitted to the people in accordance with the law.

There is a three stage process detailed by Art. 46, 47.1 and 46.5

  • Art. 46 – Legislative process
  • Art. 47.1 – Referendum process
  • Art. 46.5 – Presidential signature and promulgation

32 amendments have been proposed to date.

   ii) Public General Acts

This type of Act is directed that the community at large. A public general bill can be initiated by the government or by a Private Member (either TD or Senator)

  iii) Private Acts

Usually directed at one individual or body (e.g. Galway Harbour Act or MacSwiney (Pension) Act 1950).

This type of statute is an exception to the five-stage legislative process. So, what does this process look like?

  1. Promoter of the Bill has to go before the Seanad (only example of legislation that must be initiated in the Seanad) and leave a copy of the Bill in the Private Bill office and publish a notice about the Bills general purpose to alert people who might be affected by it. People who are concerned about it then can apply for counsel to represent them in the Parliamentary discussion. Once the examiner has reported that the promoter has done the requisite promotion of the Bill, then the bill is deemed to have passed the first stage.
  2. The second stage is merely formalities.
  3. Joint Committee for private bills (Quasi-judicial) nature of the process comes into play. The means by which the body is selected is judicial in character. These 7 must declare in writing that they have no interest in the Bill and there constituents have no interest in it. They must also declare that they will attend every meeting. There will also be people who oppose the bill and counsel present. In addition there is an onus placed on the promoter of the Bill to establish that the Bill is actually necessary. They then forward the Bill to the Seanad where they vote – it then goes to the Dail – it skips the first three stages of the Dail (straight into the Report stage).

A slightly different process also applies to Consolidation Legislation.

The promoter has to state that it is consolidation legislation – this legislation Cannot amend anything. It must also state the list of statutes that are going to be repealed.

The exceptions to the five stage process is that:

  • There are time limits
  • There is a Standing Joint Committee on Consolidation Bills (the focus is to ensure there is no amendment to any of the laws) – as long as the substance is not change (old language updated) it is okay.
  • It by-passes the first 3 stages in the Second House.

So the two exceptions to the 5 stage process are: Consolidation Bills AND Private Acts.

But, what is a Private Member’s Bill?

  • Submitted by a non-political majority member.
  • Has to be passed by both Houses of the Oireachtas – there is a variation to the 5 stage process (e.g. 2nd stage is limited to 6 hours and only Special/Select Committees can review them. In practice most of these bills fail at the second stage, and the general rule is that the Government rejects these bills).
  • Given that the government has a virtual monopoly (Government WHIP system governs) – in practice the opposition is relegated to dissenting, for the sake of dissenting.
  • Why then do Private Members even bother? – Often they are enacted just because the opposition are interested in a particular area, or there has been a high profile incident and they want a jump on the government (scoring political points) – In 1979 for instance there was a Private Members Ombudsman Bill – this was rejected but then a few months later they made their own Bill on the topic and it passed.
  • No member of the government can initiate a PMB. Neither chair of either house can do so either. Also, the Minister of State of the Attorney General cannot initiate a PMB.

— Categories of Secondary Legislation 

Secondary legislation arises when a Parent Act (Primary legislation) empowers a particular person or body to have limited law-making power.

It exists so that legislation can be pushed through as when put through the Oireachtas, it takes a long time.

There are several categories of secondary legislation:

  • Per s. 1(1) of the Statutory Instruments Act 1947, a statutory instrument is as “order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute.” 

    • Orders – one-off effect.
    • Rules & Regulations – deal with detailed technical issues (e.g. finance).
    • Schemes – administrative device using scales and charges.
    • Bye-laws – Defined in **Kruse v Johnson [1898] 2 QB 91 (affirmed by SCt in *State (Harrington) v Wallace) as an “ordinance affecting the public or some portion of the public…”

–Status of Secondary Legislation

There are two ways secondary legislation can be challenged:

  • Unconstitutional
  • Ultra vires

(a) Constitutionality Issue

Art. 15.2.1 – Exclusive legislative authority is vested in the Oireachtas. This limits the powers of Ministers and other delegated bodies.

A test arose, called the Principles and Policies Test, to determine whether secondary legislation was either unconstitutional or ultra vires:

  • ***Cityview Press Ltd. v An Chomairle Oiluna [1980] IR 381.
    • If [the power does more than give effect to principles and policies in the statute it] … would constitute … [an] exercise of legislative power by an authority … not permitted to do so under the Constitution.  … [I]f the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
    • Another limit of this test establishes that the delegate cannot enact unconstitutional legislation.

Note: There is a presumption of constitutionality afforded to all legislation (discussed in Cityview by Walsh J) (this topic is discussed further below. See “(5) Statutory Interpretation”). Relevant here however is:

  • ***McDonald v Bord nag Com (No.2) [1965] IR 217
  • If a statute can be read in two ways, one unconstitutional and one constitutional, it shall only be read in the way it is seen as constitutional. This applies to primary and secondary legislation – in practice this means that judges will try to construe the legislation as narrowly as possible so as to ensure that it conforms with the Constitution. The guiding rule that the courts have when interpreting legislation is to try to give effect to legislative intent. The judge’s role is to try to give effect to that intent in a constitutional manner.

An excellent case that uses the Cityview test is Laurentiu v Minister for Justice. 

  • ***Laurentiu v Minister for Justice [1999] 4 IR 26
    • Aliens Act 1935, s(5)(1)(e): “The minister can decide who can be deported/excluded from entry into Ireland.” – the Minister then passed an Order – Aliens Order 1946 – “… the Minister may, if he deems it to be conducive to the public good to do so, make an order … requiring an alien to leave and remain thereafter out of the State.”
    • Issue: Was the power given to the Minister to delegate in the Aliens Act 1935  unconstitutionally wide?
    • Law: “The Oireachtas may not abdicate its power to legislate.  To abdicate would be to impugn the constitutional scheme [of three branches of government].  …” (per Denham J)
    • Held: Court found the power to be too wide and therefore unconstitutional.

(b) Ultra Vires Issue

Because the Ministers powers are delegated by the Oireachtas, their further orders should be in flux with the legislature.

Two cases highlighting how this argument works:

  • ***Cassidy v Minister for Industry and Commerce [1978] IR 297
    • Notice would have to be given to the Minister if publicans wanted to raise their prices. This worked well for a long time. However, a group of publicans in Dundalk decided to move away from this.
    • The Minister then decided to impose a new maximum price for drinks in Dundalk only – this price was set quite low. The publicans in Dundalk wanted to challenge this regulation on a number of grounds:
    • Issue 1: Was the Minister using the Order for illegitimate reasons?
      • If so, this is ultra vires. Powers are delegated to the Minister so as to create stability  and this order did not achieve this.
      • Application 1: The Minister’s primary purpose was to return stability to the pricing of alcohol so the Order was not ultra vires.
        • One of the key criterion in relation to whether something is ultra vires is whether it was made bona fide (in good faith) – also, another criterion is whether the means used was reasonable.
    • Issue 2: Were the means used unreasonable?
      • The order did not differentiate between alcohol sold in pubs and alcohol sold in lounge bars etc. (different costs for different types of establishment). Henchy J using *Mixnam’s Properties v Chertsey Urban DC
      • Application 2: The Order could lead to publicans leaving the lounge bar trade and this was an oppressive result – it would be arbitrary and unjust.

iv) Quasi-legislation

These are circulars and codes of practice made by Government Departments in response to requirements imposed on them by statute/offering their interpretation of the Statute.

  • An example is the decision to abolish corporal punishment in schools came about due to circulars issued by agencies prior to legislation. It was not until 1997 that it became a criminal act for a teacher to hit a student. 

v) EU Legislation

EU legislation superseded domestic legislation and even the Constitution (once ratified by the people) (See the “Constitutional Law” page for more information).

Subject to this however are differing levels of EU legislation. They are:

  • EC Treaties – This is primary legislation from the EU. Ireland must have a referendum for each new treaty. 
  • Regulations – This is secondary legislation. The power to enact them comes from EC Treaty (Lisbon 2007). – Regulations have direct effect (once they are enacted, they are automatically law in every member state of the EU).
  • Directives – This is also secondary legislation. Directives do not have direct effect. They set minimum thresholds (e.g. human rights, financial regulations etc.) and it is left to the domestic government to enact legislation in line with the directive principles.

5) Improving Statutes and the Statute Book

i) Legislative Language

The language used in statutes has frequently been criticized for being unnecessarily complex and difficult to read. The issue of complexity is compounded by the fact that the legislation is poorly drafted. It has been argued that these features makes it difficult for the lay person to understand the statutes. Also, since ignorance of the law is no excuse, this concept is bewildering at best. 

Accordingly it is unsurprising that the Plain English movement has had support in other jurisdictions. 

  • ***DPP v Judge Devins [2012] IESC 7
    • Issue: Whether s. 1 of the Interpretation (Amendment) Act 1997 revived an offense that was abolished by the Criminal Law (Sexual Offenses) Act 1993
      • The concern here was that even common law offences abolished before the passing of the 1997 Act could be revived (s. 1(2)) subject to the accused’s constitutional rights (s.1(4)).
    • The problem: The accused committed buggery on an underage person in 1970. It is a principle of law that you cannot be prosecuted for an offense that has been abolished, even if when you committed it, it was illegal. So, in 1997 the Interpretation (Amendment) Act 1997 introduced a new section, saying that if a common law offense (such as buggery) was abolished, even before the 1997 Act, it can be revived, although this was subject to the constitutional rights of the accused.
      • Could this man now be prosecuted? Up until 1993 he could have been – then buggery is abolished in 1993 act. A new offense is created relating to the age of consent.
    • Hardiman J was extremely critical of the drafting of the legislation. It was noted that “[t]his, frankly, is the sort of legislative provision which exposes the law to ridicule. …”

The Law Reform Commission, in their report Statutory Drafting, made some simple recommendations.

  • Obscure language such as herein, heretofore, aforesaid and aforementioned should not be used in statutes.
  • Terms “electronic communication” instead of e-mail; facsimile instead of fax, should be changed.
  • Complex phrasing such as; “this Act may be cited as…” should read “this Act is called”; should be changed.
  • Repetition in legal writing (tautologies) should be abolished such as:
    • Null and void
    • Last will and testament
    • Give and bequeath

ii) Tidying the Statute Book

Legal research can be difficult because the statute books is cluttered with obsolete legislation, repeated statutes and amendments are not provided at source.

As a result there have been numerous remedies to help streamline the statute book. One example is:

  • The Statute Law Revision Act 2012

    • Repealed in whole or in part, 21,936 statutes.
      • However, this is not all of them. Many, many, many of them are still in place as well as amendments not being found at source. 

There have been calls for more consolidation statutes and for the introduction of “mini-codes.” This “mini-code” process has been the most successful in the criminal law field, although one for property law has just been introduced with tie Land and Conveyancing Law Reform Act 2009. This repealed over 170 statutes, in whole or in part; the oldest repealed statute was De Donis Conditionalibus 1285.

  • Another example would be the Taxes Consolidation Act 1997. Reduced number of sections from 2000 to 1104.
  • There are still 240 statutes governing the courts, the oldest being the Sheriffs Act 1215.

Topic 5 – Statutory Interpretation

1) Introduction

The majority of cases heard are now centered on statutory interpretation.

Problems of interpretation arise for numerous reasons such as:

  • Language has multiple meanings.
  • Complex or archaic language is used in statutes.
  • Desire of legislature to legislate for the future.
  • Overall, cases involve parties in conflict.

Nevertheless, the courts must always interpret legislation in light of Art. 15.2 which requires them to give effect to legislative intent. This “legislative intent” is somewhat of a legal fiction however. Given how the legislative process operates in practice it is false to speak of a single/unitary legislative intent.

ii) The Canons of Interpretation

  • Literal Rule – words should be given their “literal” or ordinary meaning.
  • Golden Rule – operates when the literal rule leads to an absurd result. It is an alternative/secondary meaning.
  • Mischief Rule – *Heydon’s case – Four aspects are taken into consideration: 1) what was the law before making the Act? 2) What was the mischief and defect for which the common law did not provide? 3) What remedy the Parliament hath resolved and appointed to cure. 4) True reason of the remedy.

These have been supplanted by the Teleological, Schematic and Purposive approaches.

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