Irish Legal System - Sources of Law

Irish Legal System - Sources of Law

• Four major primary sources of law in Ireland:
  • European Union Law
  • Bunreacht na hÉireann (Irish Constitution)
  • Legislation
  • Case Law/Common Law

Irish Constitution

• The supreme domestic source of law in Ireland.
• Outlines how the country functions and guarantees fundamental rights
• The 1937 Constitution is the current constitution in force.

Fundamental Constitutional Rights (Examples)

• Right to marry, regardless of sex (recent amendment)
• Right to free primary education.
• Right to own private property
• Freedom of conscience and religion.
• Court cases must be held in public (with limited exceptions)

Fundamental Rights limitations

• Fundamental rights are not absolute and can be limited by the common good or public order
  • Personal Liberty can be limited through arrest and imprisonment.
  • A house is inviolable but can be entered with a warrant.
  • Right to own property can be taxed, or compulsorily acquired.

Unenumerated Rights

• Fundamental rights not explicitly listed in the Constitution, but implied through the interpretation of its text.
• Judges can find unspecified rights through interpreting words of the Constitution.
• Examples include right to marry, bodily integrity, and right to earn a livelihood.

The Irish Constitution - Further Details

• The 1922 Constitution was the Free State Constitution.
• Fifty articles divided into sections and subsections.
• Key influences on the 1937 Constitution.
• Constitution's importance in the legal system, including importance of its Irish language.
• Available online.
• Articles 2 and 3 define the national territory (amended 1998).
• Article 15 – The Oireachtas.
• Article 34 – The Courts.
• Articles 40 to 44 – Enumerated Fundamental Rights, including Ryan v Attorney General (1965).

Sources of Law - Legislation

• Acts of the Oireachtas (statutes) are made according to a specific process.
• The Oireachtas has the power to make legislation.
• Legislation process steps include drafting (parliamentary counsel), government/private member's bills, public/private and money bills.
• Acts must be in accordance with the Constitution.
• Individuals can challenge laws that conflict with the Constitution.
• Declarations of invalidity – for example De Burca v Attorney General (1976).
• Amendments to the Constitution can only be made by the people of Ireland in a referendum.

Legislative Process

• Stages of a bill becoming an enforceable law, including First, Second, Committee, Third, Report, and Fifth stages.
• Enactment by the president.
• The president's role and powers (Article 26).
• Article 27 further information.

Primary Legislation further details

• Form and content of Acts/Statutes and relevant language aspects.
• Current Statute Book information (irishstatutebook.ie).
• Sources and influences on legislation and Law Reform Commission's role.
• Example of an Act: Data Protection Act 2018.
• How legislation is made process.

Delegated Legislation

• Law made by government departments or other delegated bodies.
• Power delegated from an Act of Oireachtas.
• Primary types are statutory instruments (S.I.s), orders, regulations, schemes, and rules.
• Example of Commencement Order, and role of Bye-Laws.
• Control over delegated legislation, including control by the Oireachtas and judicial review ('ultra vires').
• Advantages and disadvantages of delegated legislation are covered

Statutory Interpretation

• The interpretation of legislation by judges (separation of powers).
• Three main approaches:
  • Literal Rule (ordinary meaning of words).
    • Notable case: Whitely v Chappell (1868).
  • Golden Rule (avoiding absurd or unjust results).
    • Significant case: Re Sigsworth (1935).
  • Mischief Rule (addressing the mischief the law intended to prevent).
    • Key case: Smith v Hughes (1960). Combining all three methods in a Purposive Approach.

Aids to Interpretation

• Intrinsic Aids (found within the Act itself) such as the Act itself and explanatory memorandum.
• Extrinsic Aids (found outside the Act) – previous acts, reports of law reform bodies, dictionaries, and textbooks. Notable international treaties

Judicial Precedent

• Common law reliance on previous case rulings.
• Judge-made law/Case law/Binding precedent.
• Doctrine of precedent (stare decisis).
• Binding precedent includes deciding similar cases on the same reasoning (consistency).
• Ratio Decidendi meaning of the decision and its future binding authority in related cases.
• Further aspects include persuasive authorities from lower courts and jurisdictions outside of relevant jurisdiction. Dissenting judgments aspect also covered.

Hierarchy of Courts

• The hierarchy of courts and its flexibility in overruling lower court decisions.
• Distinguishing previous cases.
• Importance of case citations to locate cases and understand decisions by courts.

European Union Law

• Background to the EU's formation and the Treaty of Rome (1957).
• Original membership and Irish membership (joined in 1973).
• Ireland's obligation to be bound by EU court decisions and to implement EU legislation.
• Referendum of 1972 and its significance.
• EU law's source in the Irish Constitution (Article 29.4.6).
• Current EU membership.

Institutions of the European Union

• Institutions of the EU and their roles (Council of the EU, European Commission, European Parliament, Court of Justice, European Council).

Types of EU Secondary Legislation

• Regulations – Directly applicable, binding.
• Directives – Binding “result”, flexibility in implementation
• Decisions –Binding to named individuals or members states.
• Recommendations & Opinions–Persuasive, non-binding.

Questions

• Fundamental human rights in the Irish Constitution (note).
• Oireachtas lawmaking stages (stages involved).
• Rules of statutory interpretation (explanation).
• Advantages and disadvantages of judicial precedent (explanation).
• Two main EU institutions (note each).
• Differences between EU Regulations and EU Directives