Irish Legal System - Sources of Law

Irish Legal System - Sources of Law

• The Irish legal system has 4 major primary sources of law
• European Union Law
• Bunreacht na hÉireann/Irish Constitution
• Legislation
• Case Law/Common Law

Irish Constitution

• The constitution is the supreme source of law in the state, domestically
• It's the highest-ranking domestic source of law
• It outlines how the country runs and guarantees fundamental rights

Fundamental Constitutional Rights

• State protection of marriage (Art. 41.3.1)
• Right to marry irrespective 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 must be held publicly, except in limited cases (Art. 34)

Fundamental Rights are not absolute

• Personal liberty can be limited by arrest or imprisonment
• Homes are inviolable but can be entered with a search warrant
• Right to own property can be limited by taxation or compulsory acquisition

Unenumerated Rights

• Rights not explicitly listed in the Constitution, but implied
• Examples: right to marry, bodily integrity, livelihood
• Judges interpret constitutional text to identify these implied rights

The Irish Constitution - Details

• The 1937 Constitution is currently in force
• It has 50 Articles, divided into sections and sub-sections
• It establishes institutions of the state and guarantees fundamental rights

The Irish Constitution - Examples of Content

• Articles 2 and 3 outline the National Territory, amended in 1998
• Article 15 refers to the Oireachtas .
• Article 34 refers to the Courts
• Articles 40-44 outline Enumerated Fundamental Rights
• There are unenumerated rights, not explicitly listed

Legislation

• Ireland's legislation must align with the Constitution.
• Individuals can challenge laws that conflict with the Constitution

Legislation - Revising the Constitution

• The Constitution can be amended by the people of Ireland through a referendum
• Potential pathways for revisiting the Constitution include Constitutional Conventions and Citizens' Assemblies

The Oireachtas

• Comprised of Dáil Éireann, Seanad Éireann, and the President
• Defines the structure and function of the Oireachtas in articles 15 to 27 of the Constitution
• The composition of the Dáil (articles 16 and 17), election process, duration, functions of TDs and the Government (Taoiseach and Tánaiste) are regulated by legislation

Seanad Éireann

• Often referred to as the upper house
• Composition includes indirectly elected members, elected University graduates and those appointed by the Taoiseach.

Proposed Changes to the Seanad

• The possibility of abolishing or reforming the Seanad is a subject of ongoing debate and constitutional amendment

The President

• Governed by articles 12 to 14 of the Constitution
• Addresses eligibility, election, term of office, functions, ceremonial role, and even rarely used powers

Primary Legislation

• Also known as statutes
• The Oireachtas has the power to make legislation
• The Constitution empowers the Oireachtas (article 15.2.1).

Primary Legislation - Legislative Process

• The process includes drafting the Bill by Parliamentary Counsel
• Bills can be introduced by the Government or private members
• Bills are then debated and amended (First, Second, and Third Stages)
• Bills that advance, are debated and potentially approved by the houses of legislation
• A bill is then enacted as law after being signed into law by the President

The Legislative Process - Other elements

• The Role of the President in the legislative process is outlined (Article 26)
• Process of referencing the Supreme Court (Article 27)

Primary Legislation - Further Details, examples, and resources

• Form and content of Statutes.
• Current Statute Book - irishstatutebook.ie
• Sources and influences on legislation.
• Example - Data Protection Act 2018
• How legislation is structured

Delegated or Secondary Legislation

• Made by Government departments, or other delegated authorities
• These laws come from legislation passed by the Oireachtas

Delegated/Secondary Legislation - Control

• The Oireachtas also controls delegated legislation
• The Courts can also review delegated legislation to ensure it conforms to existing law and doesn't overstep its powers

Statutory Interpretation

• Judges apply relevant legislation, without altering their intent; they apply various approaches and theories.
• Literal, Golden, and Mischief rules.
• Purposeful approach also exists

Statutory Interpretation - Cases

• Case examples are provided using cases like Whitely v Chappell , Re Sigsworth, and Smith v Hughes

Aids to Interpretation

• Examining the actual law.
• Legal interpretation presumptions, some examples of which include constitutional presumption, and the presumption against retrospective effect

Extrinsic Aids to Interpretation

• Extrinsic material sourced from external entities, such as international treaties, previous laws, and reports from entities such as the Law Reform Commission

Judicial Precedent

• A common-law system heavily reliant on established legal cases.
• Judge-made law, Case law and binding precedent

Judicial Precedent - Doctrine of Precedent

• The doctrine of precedent, or stare decisis requires courts to align decisions regarding similar issues with prior precedents
• This maintains legal consistency and predictability.

Ratio Decidendi

• The reasoning of a court decision, which sets a binding precedent in future cases when similarly framed

Judicial Precedent - Higher/Lower Courts and Hierarchy

• The hierarchy of courts in Ireland; higher courts can overrule lower court decisions.
• Differentiating cases with sufficient distinctions from prior rulings.

Locating and Understanding a Judicial Decision

• Finding the specific legal precedent in legal reports
• Advantages and disadvantages of using judicial precedent

European Union Law

• Background, Treaty of Rome 1957
• Ireland's membership: join in 1973, referendum in 1972
• Irish law has to align with EU legislation.
• Article 29.4.6 gives EU law force in Ireland

EU Institutions

• Including descriptions of each institution, Who they are, what their function is, and the relationships between bodies

EU Secondary Legislation

• Regulations, Directives, Decisions, and Recommendations & Opinions.
• Detailed explanations of the different types of legislation.
• Examples of each type.

Questions

• Fundamental human rights in the Irish Constitution
• Steps for the Oireachtas in creating laws
• Rules for statutory interpretation
• Advantages/Disadvantages of judicial precedent
• Key EU institutions (2)
• Differences between EU Regulations and Directives

Explore the four primary sources of law in the Irish legal system including the Irish Constitution, legislation, case law, and EU law. This quiz will test your understanding of constitutional rights and their limitations within Ireland's legal framework.