Irish Legal System - Sources of Law

Irish Legal System - Sources of Law

• Four major primary sources of law in Ireland are: European Union Law, Bunreacht na hÉireann/Irish Constitution, Legislation, and Case Law/Common Law.
• A constitution is the supreme source of law in a state, the highest-ranking domestic source.
• It outlines how the country functions and guarantees fundamental rights.
• Bunreacht na hÉireann (Irish Constitution) includes fundamental rights, for example:
  • Protection of marriage (Art. 41.3.1)
  • Right to marry regardless of sex (Art. 41.4)
  • Right to free primary education (Art. 42.4)
  • Right to own private property (Art. 43.1)
  • Freedom of conscience and religion (Art. 44.2.1)
  • Court cases generally held in public, with limitations in specific cases (Art. 34)
• Fundamental rights are not absolute and can be limited for the public good or public order (e.g., personal liberty, house inviolability, right to own property).
• Unenumerated rights, not specifically mentioned, are identified through constitutional interpretation. Marriage is considered a constitutional right by implication (Article 41.3).
• The 1922 Constitution(Free State Constitution), the 1937 Constitution (in force currently), and the ethos/influences behind the 1937 constitution are parts of the Irish Constitution.
• The Constitution is divided into 50 articles in sections and subsections (Institutions of the State and Fundamental Rights).
• The Constitution is available online.
• The Oireachtas, consisting of the Dáil, Seanad, and the President, make laws. (Articles 15-27 of the Constitution).
• The 1998 amendment to Articles 2 & 3 outlines the national territory.
• The Oireachtas - Article 15 (The Oireachtas)
• Composition of the Oireachtas is based on Articles 15 to 27 of the Constitution
• The Dáil (Articles 16 and 17):
  • Election of TDs
  • Duration of Dáil
  • Functions of TDs
  • Composition of the Government (Taoiseach and Tánaiste)
  • Dáil privilege
  • Role of the Ceann Comhairle
  • Rules of the Dáil
• Seanad Éireann.
  • Sometimes referred to as the “upper house.”
  • Composition of the House.
• Proposed abolition of the Seanad based on a 32nd amendment proposal.
• Arguments for and against the abolition of the Seanad (reform).
• Role, Eligibility, Election and term of office, Nomination, Functions, Ceremonial role, Powers under the constitution, powers never used, Removal from office, Presidential Commission, Council of State (Articles 12-14) are aspects of The President
• Statutes or acts of the Oireachtas are primary legislation.
• The legislative process for making a bill involves:
  • First Stage: initiating the bill
  • Second Stage: debating general principles of the bill
  • Third Stage: examining the bill section by section
  • Fourth Stage: considering amendments
  • Fifth Stage: passing the bill by the House
  • Enactment: President signing the bill into law
• The Role of the President:
  • Role of the President in the legislative process (Article 26, 27).
• Every piece of legislation and judicial decision must comply with the Constitution.
• An individual can challenge a law that conflicts with the Constitution.
• Declarations of invalidity ( De Burca v Attorney General in 1976, Juries Act 1927)
• Constitutional Amendments (Articles 46 and 47). Only amendable by the people of Ireland in a referendum.
• Revising the Constitution and amendments can be made through the Constitutional Convention, The Citizens' Assembly
• Primary Legislation (Acts of the Oireachtas, also known as Statutes), how Acts are made and legislative process, different types of bills, website for finding current bills.
• Delegated or Secondary Legislation
  • made by Government Departments or other delegated bodies -Power must be delegated by an Act of the Oireachtas (Parent or Enabling Act)
  • Mostly enacted as Statutory Instruments (S.I.s) (Orders/Regulations/Schemes/Rules)
  • Includes examples like Commencement Orders and Bye Laws (Local Authorities).
• Control of Delegated Legislation – Control by the Oireachtas and Courts via Judicial Review, “ultra vires”.
• Statutory Interpretation - Methods used to interpret laws (e.g., Literal, Golden, Mischief Rule, Purposive/Schematic/Teleological)
• Statutory Interpretation Cases (e.g., Whitely v Chappell, Re Sigsworth, Smith v Hughes)
• Aids to Interpretation - Intrinsic Aids (contained within the Act, Explanatory Memorandum, Act itself), Presumptions (against retroactivity & presumption of constitutionality), Rules of Language, Extrinsic Aids (Outside the act, previous Acts, reports of law reform bodies, dictionaries, international treaties)
• Judicial Precedent - Common Law, Judge-made Law, Doctrine of Precedent (stare decisis), ratio decidendi, persuasive authorities (lower court decisions, decisions from other jurisdictions, dissenting judgments/opinions)
• Hierarchy of Courts, ability to overturn lower court decisions, distinguishing and locating cases, importance of law reports, advantages/disadvantages of judicial precedent
• European Union Law (e.g., Treaty of Rome, 1957)
  • Background to formation and original membership.
  • Irish membership (1973); bound by Court of Justice decisions and implementation of EU Legislation; 1972 referendum; Article 29.4.6 gives EU law force of law in Ireland.
• European Union Institutions (Council of the European Union, European Commission including operations, European Parliament, Court of Justice, European Council)
• Types of European Union Secondary Legislation, details on EU Regulations, EU Directives, EU Decisions, and EU Recommendations & Opinions. Detailed differences in application and binding nature.