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 (highest ranking domestic law)
  • Legislation (Acts of the Oireachtas)
  • Case Law/Common Law

Irish Constitution

• Typically the supreme source of law in a state.
• Highest-ranking domestic source of law.
• Outlines how the country functions and guarantees fundamental rights.
• Key Influences on the 1937 Constitution: Irish Language
• Divided into 50 Articles with sections and subsections.
• 1922 Constitution (Free State Constitution)
• 1937 Constitution (current)
• Available online.

Fundamental Constitutional Rights

• Examples:

  • Article 41.3.1: State protecting marriage
  • Article 41.4: Right to marry regardless of sex
  • Article 42.4: Right to free primary education
  • Article 43.1: Right to own private property
  • Article 44.2.1: Freedom of conscience and religion
  • Article 34: Court cases held publicly (except in limited cases)

• Fundamental Rights are not absolute and can be limited for the common good or public order.

• Examples of limited rights:

  • Personal Liberty: Arrest and imprisonment
  • House Inviolability: Search warrants
  • Right to own property: Taxation, compulsory acquisition

Unenumerated Rights

• Fundamental rights not explicitly mentioned in the Constitution.
• Judges identify these rights through interpretation of Constitution.
• Example: Article 41.3’s protection of marriage implies a constitutional right to marry.

The Oireachtas

• Dáil Éireann + Seanad Éireann + President make up the Oireachtas
• Articles 15 to 27 of the Constitution define the Oireachtas' composition.
• Key parts of the Dáil, including election, duration, functions, TDs: Taoiseach and Tánaiste, Dáil privilege, Ceann Comhairle, Rules of the Dáil
• The Seanad's composition (current and proposed changes).

Primary Legislation

• Acts of the Oireachtas
• Also referred to as Statutes.
• Power given to the Oireachtas by Article 15.2.1 of the Constitution.
• Legislative process: Bill Drafting, Parliamentary Counsel, Government Bills/Private Members Bills, Public Bills/Private Bills, Money Bills.
• For current bills, consult the Oireachtas website.

Legislative Process

• Legal proposals (Bills) must go through several stages to become law.
• Stages include: First Stage, Second Stage, Committee Stage, Report Stage, Fifth Stage and Enactment.

The President

• Detailed description of Presidential roles from Articles 12-14 of the Constitution: Eligibility, Election and term of office, Nomination, Functions of the President, Ceremonial role, Powers under the Constitution, Powers never used, Removal from office, Presidential Commission, Council of State.

Secondary Legislation

• Law created by government authorities on issues delegated by the Oireachtas
• Acts as Statutory Instruments: Orders, Regulations, Schemes, and Rules
• Examples: Commencement Orders, Bye-Laws.

Statutory Interpretation

• Judges interpret legislation, but it cannot be altered by them.
• Different approaches include the Literal Rule, Golden Rule, The Mischief Rule and the Purposive/Schematic/Teleological Approach.
• Cases involving statutory interpretation include Whitely v Chappell, Re Sigsworth and Smith v Hughes.
• The process incorporates different methods of interpreting laws.

Aids to Interpretation

• Intrinsic Aids: Materials within the act itself, including explanatory memorandum.
• Extrinsic Aids: Materials outside the act, including previous acts, reports of law reform bodies, dictionaries, textbooks or international treaties.

Judicial Precedent

• Common law systems heavily rely on case-law.
• Judge-made law/Case law/Binding Precedent.
• Doctrine of Precedent/Stare Decisis: Similar cases are handled consistently based on previous decisions.
• Ratio Decidendi: The reason for a case's decision, binding in future similar cases.
• Persuasive authorities: Decisions from lower courts, other jurisdictions, and dissenting judgments are helpful but not binding.
• Hierarchy of courts: higher courts have more flexibility to overrule lower courts, as well as distinguishing previous cases.

European Union Law

• Background to the EU's formation (Treaty of Rome 1957).
• Ireland joined the EU in 1973, followed by a referendum.
• EU membership, including Ireland's third amendment to the constitution, and Article 29.4.6.
• EU Law's force of law in Ireland.
• EU legislation and current membership.
• Describing the EU institutions: Who are the members, what they do (Council of the European Union, European Commission (how it operates), the European Parliament, the Court of Justice, the European Council).

###EU Regulations and Directives

• Difference between Regulations (directly applicable, binding in full) and Directives (binding results but member states have decision about how). Regulation Examples: General Data Protection Regulation, Directive Examples: Consumer Rights Directive.

Questions to be addressed

• Fundamental Human Rights in the Irish Constitution.
• Process of law making by the Oireachtas and the stages involved.
• Rules of Statutory Interpretation.
• Pros and Cons of Judicial Precedent.
• Two major EU institutions.
• Differences between EU Regulations and Directives.