Constitutional Law of Ireland PDF

Constitutional Law of Ireland Preliminary remark: one State, several names. The State officially known as Ireland today has had through history several names. It only covers 5/6 of the whole island of the same name, the remaining part, Northern Ireland, being under British sovereignty. When the...

Constitutional Law of Ireland Preliminary remark: one State, several names. The State officially known as Ireland today has had through history several names. It only covers 5/6 of the whole island of the same name, the remaining part, Northern Ireland, being under British sovereignty. When the State was granted Dominion status, in 1921, after the Anglo-Irish Treaty concluding the Irish War of Independence (1918-21), it was designated as the Irish Free State (Saorstát Éireann). It changed its name in 1937, when its second constitution claimed the whole island (including Northern Ireland) was ruled by its provisions, calling it Ireland in English and Éire in Irish, although the latter was commonly used in English too. An ultimate change of designation occurred in 1949, with the entering into force of the Republic of Ireland Act 1948, adopting Republic of Ireland (Poblacht na h Éireann) as the official description of the State, while keeping the name Ireland in use (the monarchy being abolished and the membership of the Commonwealth of Nations cancelled). The terms Republic of Ireland (RoI), the Republic, the 26 counties or the South are often used when needing to distinguish the State from the island or when Northern Ireland (NI or the North) is discussed. I) The Constitution of 1937 A) From the Constitution of 1922 to the Constitution of 1937 The Irish Constitution of 1937 (Bunreacht na hÉireann) is the second constitution of Ireland since independence1, replacing the 1922 Constitution of the Irish Free State (thereafter IFS) adopted by Act of Dáil Éireann sitting as a constituent assembly on 25 October 1922. The IFS being a Dominion, it had been approved by the British Parliament (Irish Free State Constitution Act 1922) and had come into effect on December 6th through a proclamation issued by George V. That first fundamental law was firmly shaped by the requirements of the Anglo-Irish Treaty of 1921. However, after the Statute of Westminster 1931 (forbidding the British Parliament to legislate for a Dominion, except at its request and with its consent and granting control of their constitutions to the Dominions) and the Irish General election of 1932 (won by Éamon de Valera’s Fianna Fáil, hostile to the Treaty), a series of amendments removed, between 1933 and 1936, many of the provisions required by that document. They were the Constitution (Removal of Oath) Act 1933 abolishing the oath of allegiance to the British monarch and removing requirements that the constitution & laws of the Free State should be compatible with the Anglo-Irish Treaty; Amendments n° 20 and 21 removing the Governor General's role in recommending appropriations of money to Dáil Éireann on the advice of the Executive Council and deleting provisions granting him the right to veto bills or reserve them "for the King's pleasure" by referring them to London; Amendment n° 22 abolishing the right of appeal to the Judicial Committee of the Privy Council of the British monarch against rulings of Irish courts; Amendment n° 27 abolishing the office of Governor General and removing all reference to the King from the constitution. B) The drafting process and adoption of the Constitution of 1937 Asserting the Irish people’s national sovereignty, the Constitution of 1937 establishes a parliamentary democracy (with a popularly elected non-executive president & a bicameral parliament based on the Westminster System) and guarantees the respect of basic rights through separation of powers & judicial review. The president of the Executive Council since 1932 De Valera, anxious to establish a purely Irish document, with no British interference (as had been the case in 1922) personally supervised the writing of the new Constitution. It was drafted initially by John Hearne, legal adviser to the Department of External Affairs. Roman Catholic, Church of Ireland, Methodist and Presbyterian leaders were consulted on religious, educational, family & social welfare issues, a draft of the constitution being submitted for review to the Vatican (which eventually declined to take any position on it). The text of the draft constitution, with minor amendments, was approved on 14 June 1937 by Dáil Éireann (then the sole house of Parliament, the Senate (Seanad) having been abolished, the previous year, by Amendment n° 24). It was then put to a plebiscite on 1 July 1937 and approved by 56% of voters, comprising 38.6% of the whole electorate, entering into force on 29 December 1937. Ireland being a bilingual State, there exist two versions of its constitution. Where the English and Irish texts clash, the Constitution favours the Irish text, even though English is, in the official sphere, more commonly used. C) Specificities of the Irish Constitution Firstly, the focus on popular sovereignty, with reference to the "inalienable, indefeasible, and sovereign right" of the Irish people (art. 1) and the statement that all powers of government "derive, under God, from the people" (art. 6.1), even if it’s also stated that those powers "are exercisable only by or on the authority of the organs of State" established by the Constitution (art. 6.2). Secondly, the aspiration to a united Ireland. As originally enacted in 1937, Article 2 asserted that "the whole island of Ireland, its islands and the territorial seas" formed a single "national territory", while Article 3 asserted that the Irish Parliament had a right "to exercise jurisdiction over the whole of that territory". It goes without saying that those provisions were considered to be an illegal extraterritorial claim by the Government of Northern Ireland and by the UK. Under the terms of the Belfast Agreement of 1998 between the UK, Ireland and the various North-Irish factions, art. 2 and 3 were amended by the 19th Amendment of 1999 to remove any reference to a "national territory", and to state that a united Ireland should only come about with the consent of majorities in both the jurisdictions on the island of Ireland. The amended articles also guarantee the people of Northern Ireland the right to be a "part of the Irish Nation", and to Irish citizenship. Thirdly, the weight of religion. While guaranteeing freedom of worship, and forbidding the State from creating an established church (=non-establishment), the constitution initially "recognised" a number of Christian denominations, such as the Anglican Church of Ireland, the Presbyterian Church in Ireland as well as "the Jewish Congregations". It also recognised the "special position" of the Roman Catholic Church (art. 44.1). These provisions were removed by the 5th Amendment in 1973. The constitution still 1 A constitution was passed, during the War of independence, by the Dáil (Dáil Constitution) of the short lived 1919-22 Irish Republic, but it couldn’t, in regard of the circumstances, seriously be enforced. contains however a number of explicit religious references, such as in the preamble2, the oath taken by the President when entering office3, and the remaining text of Article 44.14. A prohibition of abortion, except in case of threat to the life of the mother (including from risk of suicide5) had been introduced in the constitution, in 1983, by the 8th Amendment. Its scope had been limited by the 13th and 14th Amendments in 1992 specifying that the prohibition of abortion wouldn’t limit freedom of travel in and out of the State and that the prohibition of abortion wouldn’t limit the right to distribute information about abortion services in foreign countries (i.e. the UK). The 36th Amendment abrogated them in 2018, allowing the Parliament (Oireachtas) to legislate for the regulation of termination of pregnancy. As originally enacted, the Constitution also included a prohibition on divorce (removed by the 15th Amendment in 1996, after the failure of a first constitutional referendum on that subject in 1986) and a provision making it an offence to publish or utter a blasphemy (removed by the 37th Amendment in 2018). A number of ideas still found in the Constitution reflect the Catholic social teachings when the original text was drafted. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy, broad principles of social and economic policy intended solely "for the general guidance of the Oireachtas", and “not cognisable by any Court under any of the provisions of this Constitution" (art. 45)6. They were also a source of inspiration for the system of vocational panels used to elect the Senate (see below). They find an echo in provisions about the family7 as well as women8. D) The legal force of the Constitution 1) Irish Constitution and external legal sources Under article 29.4.6° of the Constitution, EU Law takes precedence over the Constitution if there’s a conflict between the two, but only to the extent that such EU law is "necessitated" by Ireland's membership. The Supreme Court ruled that any EU amending treaty (EC amending treaty, at that epoch) that substantially alters the character of the UE must be approved by a constitutional amendment (Crotty v An Taoiseach ). Since the 3rd Amendment allowing the accession of Ireland to the ECs in 1972, several amendments regarding the European Construction have been approved: the 10th Amendment in 1987 (Single European Act 1986), the 11th Amendment in 1992 (Treaty of the European Union of 1992), the 18th Amendment of 1998 (Treaty of Amsterdam 1997), the 26th Amendment in 2001 (Treaty of Nice 2001; a first attempt had been unsuccessful in 2001), the 28th Amendment in 2009 (Treaty of Lisbon 2007; a first attempt had been unsuccessful in 2008), the 30th Amendment in 2012 (European Fiscal Compact 2012, even if it’s technically an inter-governmental (international) agreement outside the institutional framework of the EU). Under article 29.6, international treaties to which the State is a party aren’t to be considered part of Ireland's domestic law unless the Oireachtas has so provided (incorporation). Under article 29.3, the State "accepts the generally recognised principles of international law as its rule of conduct in its relations with other States", but the High Court has ruled that this provision is merely aspirational, and not enforceable (Hogan v An Taoiseach ). The senior courts may declare a treaty the government intend to ask the president to ratify unconstitutional. Its ratification is thus only possible after the passing of a constitutional amendment. For such a censure, Costello v Government of Ireland , concerning the CETA, a mixed agreement between Canada and the EU, all EU member States are required to ratify. The ECHR was indirectly incorporated by the European Convention of human rights Act 2003. That statute requires all courts to interpret legislation in line with the Convention insofar as it is possible to do so (section 2), and requires certain public bodies to perform their functions in a manner compatible with the convention, unless precluded by law (section 3). It also allows senior courts, “when no other legal remedy is adequate or available” (exhaustion of purely domestic remedies) to issue a declaration that a statutory provision or common law rule is incompatible with the Convention (section 5). Unlike a declaration that a law is repugnant to the constitution, such a declaration has however no effect on the continued validity and enforcement of that law, even if the Taoiseach must bring it to the attention of both Houses of the Oireachtas. The formulation of section 5 seems to imply that the court should examine the constitutionality of a rule before ruling on its compatibility with the ECHR. However, the High Court in Carmody v 2 “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution”. 3 “In the presence of Almighty God, I, [name], do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and the welfare of the people of Ireland. May God direct and sustain me (art. 12.8)”. 4 “The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion”. 5 A constitutional referendum, trying to cancel that limit, was rejected by the electorate in 1992 and in 2002. 6 "Justice and charity" must "inform all the institutions of the national life"; everyone has the right to an adequate occupation; the free market and private property must be regulated in the interests of the common good; the State must prevent a destructive concentration of essential commodities in the hands of a few, supplement private industry where necessary, ensure efficiency in private industry and protect the public against economic exploitation and protect the vulnerable, such as orphans and the aged; no-one may be forced into an occupation unsuited to their age, sex or strength. 7 Art. 41.1.1° of the Constitution "recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law", and guarantees its protection by the State. Art. 41.4 introduced, in 2015, by the 34th Amendment however states "Marriage may be contracted in accordance with law by two persons without distinction as to their sex", thereby allowing same-sex partners to marry. A family exclusively based on marriage is envisaged: Article 41.3.1° states that "[t]he State pledges itself to guard with special care the institution of Marriage, on which the Family is founded". The effect is that non-marital unit members (such as single parents or unmarried opposite-sex or same-sex cohabiters) aren’t entitled to any of the encompassed protections, including those under the realms of tax, inheritance, and social welfare, granted by art 41. 8 1° [...] the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home (art. 41.2). Minister for Justice decided that, in the absence of any express statement in the Act to the contrary, the court should rule on the Convention issue before examining its constitutionality. That ruling was reversed on appeal by the Supreme Court in Carmody v Minister for Justice. Influence of the ECHR on Irish constitutional law. The Supreme Court held that the right of an accused person of reasonable access to a solicitor wasn’t necessarily breached where the police questioned a suspect before he had the opportunity to consult with his solicitor (People (DPP) v Buck ). Under the influence of the ECtHR’s caselaw (Salduz v Turkey ), it however reversed itself in People (DPP) v Gormley ). 2) National emergency and enforcement of the Constitution Under article 28.3.3, the Constitution grants the State sweeping powers "in time of war or armed rebellion", which may, since the 1rst Amendment of 1939, if so resolved by both Houses of the Oireachtas, include an armed conflict in which the State isn’t a direct participant. During a national emergency, the Oireachtas may pass statutes that would otherwise be unconstitutional, and the actions of the Executive mayn’t be found ultra vires or unconstitutional, provided they at least "purport" to be in pursuance of such a law (for an illustration of such an immunization of legislation, see the Emergency powers Act 1939, in force from 1939 to 1945). However, the constitutional prohibition on the death penalty (Article 15.5.2°), introduced by the 21rst Amendment of 2002, constitutes an absolute exception to these powers. There have been two national emergencies since 1937. The first one was declared in 1939, to cover the threat to national security posed as a consequence of World War II (although Ireland remained formally neutral throughout the conflict). The second one was introduced in 1976, to deal with the threat to the security of the State posed by the Provisional IRA which was responsible for a terrorist attack against the Special Criminal court on July 15th 1976 and had assassinated the British ambassador Christopher Ewart- Biggs on July 21st 1976. In Re emergency Powers Bill 1976, the Supreme Court extended the scope of the circumstances that may trigger a state of emergency by adding an armed conflict affecting the vital interests of the State. E) Amendments to the Constitution 1) Amendment to the Constitution of 1922 The procedure for adopting constitutional amendments was laid out in Article 50. Amendments needed to be approved by both houses of the Oireachtas (the Dáil being able to override a veto of the Seanad), then submitted to a referendum (where a majority of the registered voters had to record their votes and either the votes of a majority of the voters on the register or 2/3 of the votes recorded had to have been cast in favour of such amendment), before receiving the royal assent from the Governor General. However, the constitution could initially be amended by the Oireachtas for eight years (until 1930). The Oireachtas chose, in 1929, to extend that period for eight new years (until 1938), meaning that, for the duration of its existence, the Free State constitution could be amended by means of an ordinary law. By virtue of the Constitution Act 1922, the constitution couldn’t be amended in a way with conflicted with the Anglo-Irish Treaty of 1921. However, the Statute of Westminster removed that restriction in 1931, as far as British (but not Irish) law was concerned. That second aspect was consecrated by the Constitution (Removal of Oath) Act 1933. The Oireachtas readily used its powers of amendment so that, during the 15 years of the constitution's operation, 25 formal constitutional amendments were made. In addition to the adoption of constitutional amendments, the courts ruled that the Oireachtas could also implicitly amend the constitution. When the Oireachtas adopted the Public Safety Act 1927, which affected civil rights, it included a section requiring that, should the act be found to be unconstitutional, it would be treated as a constitutional amendment9. In Attorney General v McBride , the High Court ruled that this kind of section was unnecessary because, even if a law didn’t contain such a provision, it could be interpreted as a tacit amendment of the constitution anyway, owing to the doctrine of implied repeal. This meant that, in addition to formal amendments, almost any act of the Oireachtas could be considered an amendment of the constitution. 2) Amendment to the Constitution of 1937 Any part of the Constitution may be amended (no unalterable provision), but only by referendum. The procedure for amending the constitution is specified in article 46. A proposed amendment must take the form of a bill to amend the Constitution originating in Dáil Éireann (lower house of the Oireachtas). It must first be formally approved by both the Dáil and the Seanad, although in practice the Seanad has only the power to delay an amendment adopted by the Dáil. The amendment must then be endorsed by the electorate in a referendum. A simple majority of votes cast is sufficient to carry an amendment, with no minimum turnout required for a constitutional referendum to be considered valid. The vote is conducted by secret ballot. A proposal to amend the constitution put to a referendum mustn’t contain any other proposal and must, contrary to the situation under the Constitution of 1922, be expressly identified as such (every amendment having the long title "An Act to amend the Constitution"). While British citizens resident in the State may vote in a general election, only Irish citizens are allowed to participate in a referendum. Once the referendum count has been conclusive, the referendum returning officer signs a provisional referendum certificate, and publishes a copy in the Official Journal (Iris Oifigiúil). Anyone wishing to challenge the results of the referendum then has seven days to apply to the High Court for leave to present a referendum petition. If no one makes such an application, if leave isn’t granted, or if a petition is dismissed, the referendum certificate becomes final. No referendum has ever been annulled by the courts. When the referendum has passed and the final certificate has been issued, the amendment must be signed into law by the President "forthwith" (art. 46). Provided that the correct procedure has been complied with, the President mayn’t veto an amendment. In Finn v Minister for the Environment , the Supreme Court refused an a priori review of a constitutional Bill (it had been asked to entertain proceedings to prevent the 8th Amendment of the Constitution Bill 1983 from being submitted to referendum). In Re Article 26 and the regulation of information (Services outside the State for the termination of pregnancies) Bill , known as the Abortion Information case 1995, it refused to review incidentally the validity of such an amendment, considering it as an expression of popular sovereignty. It had already decided so, under the Constitution of 1922, concerning three amendments approved by Parliament, without the holding of a referendum; State (Ryan) v Lennon. As a transitional measure, for the first three years after the election of the first President of Ireland (on 25 June 1938), a bill to amend the Constitution could be passed by the Oireachtas as an ordinary act (art. 51), the President choosing whether or not to submit 9 Section 3 of the act provided that: Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment [...] of the Constitution. it to referendum (the constitution expressly forbidding the Oireachtas from using this power to extend the transitional period). The First (extension, in 1939, of the definition of "time of war" to include a war in which the State isn’t a participant to allow the Government to exercise emergency powers during the World War 2, during which Ireland remained neutral) and Second (Omnibus Bill approved in 1941 with a variety of mostly minor textual amendments, some of them affecting only the Irish text to correspond more closely to the sense of the English text) Amendments were adopted in this way; President Douglas Hyde signing them without referendum. Since the Constitution entered into force on 29 December 1937, there have been 36 amendments to the Constitution. Amendments are sometimes proposed to address a new social problem or phenomenon not considered at the time the Constitution was drafted (e.g. children's rights, marriage equality), to address outmoded provisions in the Constitution (e.g. special position of the Roman Catholic Church, prohibition on abortion), or to attempt to reverse or alter an interpretation of the courts through a corrective referendum. Referendums affecting court decisions have concerned rights of defendants and trial rights10, electoral matters11, International sovereignty12 and abortion13. The two last amendments are the 37th (repeal of offence of blasphemy) in 2018 and the 38th amendments (changes to provisions regulating divorce by removing the constitutional requirement for a defined period of separation, and by substituting a provision on the recognition of foreign divorces). In March 2024, two amendments proposing to revise the definition of family to include durable relationships outside marriage and to remove references to a woman’s “life within the home”/ “duties in the home” and adding a new article on care within the family were defeated; 67,69% of cast votes rejecting the first Bill, 73,93% rejecting the second Bill, with a voter turnout of 44,36%. Informal constitutional changes must be added to those developments. They concern constitutional conventions such as the non- extension beyond five years of the term of the Oireachtas (which could constitutionally run up to seven years) and the implementation by the government/Oireachtas of the recommendations of independent boundary commissions for Dáil constituencies. II) The President A) Historical background of the office 1) Until 1937 As founded in 1922, the Irish Free State was headed by the British monarch, even if most of his functions were performed on his behalf by a local Governor-General, appointed on the recommendation of the Irish government. The Amendment n° 27 (1936), passed in the context of the constitutional crisis caused by Edward VIII’s abdication, changed this, abolishing the post of Governor-General and transferring most of the monarch's functions to other organs of government. Thus, for example, the executive power was transferred directly to the Executive Council (=government), the right to appoint the President of the Executive Council (the Prime Minister) was explicitly vested in Dáil Éireann, and the power to promulgate legislation was transferred to the Ceann Comhairle (chairman) of the Dáil. However the constitutional amendment also provided, without mentioning the monarch specifically, for the State to be represented by him in external affairs with other countries and their representatives ( “it shall be lawful for the Executive Council, to the extent and subject to any conditions which may be determined by law to avail, for the purposes of the appointment of diplomatic and consular agents and the conclusion of international agreements of any organ used as a constitutional organ for the like purposes by any of the nations referred to in Article 1 of this Constitution”; those nations being the other members of the then British Commonwealth which, at that time, shared the same person as their monarch). The External Relations Act 1936, adopted shortly after the constitutional amendment, gave life to this provision by providing that “so long as [the Irish Free State] is associated with the following nations, that is to say, Australia, Canada, Great Britain, New 10 In People (AG) v O'Callaghan , the Supreme Court held that the right to liberty would permit the denial of bail in limited circumstances only, where there was sufficient evidence before the Court that the accused was likely to interfere with the course of justice; specifically, that bail couldn’t be because of the likelihood of the commission of further offences while on bail. This decision was overturned by the 16th Amendment in 1996 which inserted Article 40.4.7º, allowing for the refusal of bail by a court to a person charged with a serious offence where it’s reasonably considered necessary to prevent the commission of a serious offence by that person. In Maguire v Ardagh , the Supreme Court held that Oireachtas Inquiries didn’t have the power to compel witnesses to attend and to make findings against them. An amendment was proposed, in 2011, to allow Oireachtas Inquiries to make findings of fact and to balance the rights of the individual against the public interest, but it was defeated. 11 In O'Donovan v the Attorney-General , the Supreme Court held that the Electoral Amendment Act 1959 was unconstitutional and suggested that the ratio of representation to population across constituencies should differ by no more than 5%. An Amendment Bill which would have allowed a variation of up to 16.7% across constituencies was passed by the Oireachtas, in 1968, but rejected in a referendum. In Re Article 26 and the Electoral (Amendment) Bill 1983 , the Supreme Court held that the proposed bill to extend voting rights in Dáil elections to British citizens was unconstitutional. It entailed the passing of the 9th Amendment in June 1984, which allowed the franchise to be extended beyond Irish citizens. 12 The 3rd Amendment (1972) allowed Ireland to accede to the ECs. In 1986, the government signed the SEA. However, an injunction was sought against its ratification. In Crotty v An Taoiseach , the Supreme Court ruled that the further transfers of powers to the ECs foreseen within the SEA weren’t "necessitated by the obligations of membership of the Communities" as provided for by the 3rd Amendment. Since that ruling, the ratification by Ireland of any Treaty modifying the European treaties has been preceded by an amendment (see list supra). Referendums were also held to allow Ireland to be bound by the Good Friday Agreement (in 1999), the International Criminal Court Treaty (in 2001) and the Stability Treaty (in 2012; event if that treaty has an impact on the European construction, it’s a mere intergovernmental agreement and doesn’t alter the European treaties). 13 In McGee v the Attorney General , the Supreme Court found that provisions of articles 40 and 41 of the Constitution guaranteed a right to marital privacy, and that contraception on prescription couldn’t be prohibited to a married couple. Fearing that it might, in the future, admit, on that same basis, a right to abortion, opponents to that perspective supported the passing of the 8th Amendment, in 1983. In March 1992, the Supreme Court ruled in Attorney General v X that a teenage girl was entitled to an abortion as there was a risk to her life from suicide. Opponents of abortion feared that this ruling could only be enforced in a way that would lead to an expansive abortion regime of the kind found in many other countries. Two failed amendments that would have excluded suicide as grounds for abortion followed in 1992 and 2002. Ultimately, the Protection of life during Pregnancy Act 2013 confirmed the analysis of the Court, allowing abortion where the life of the woman was at risk, including a risk of suicide. The 13th Amendment was passed in 1992, to guarantee a right to travel to abort abroad. This addressed the injunction which the High Court had granted, that same year, in Attorney General v X (the X case) to order the return to Ireland of the teenage girl, victim of a rape, who had been driven by her parents to the UK for an abortion. Though the injunction had been, on appeal, lifted by the Supreme Court, a majority of the Court had found that, were it not for the risk to life of the defendant, an injunction would have been maintained. The 14th Amendment was passed on the same day in 1992 to guarantee that the ban on abortion wouldn’t limit freedom to obtain or make available information relating to services lawfully available abroad. This was in response to two cases: Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd.) v Open Door Counselling Ltd. and Dublin Wellwoman Centre Ltd. , which granted an injunction restraining two counseling agencies from assisting women to travel abroad to obtain abortions or informing them of the methods of communications with such clinics, and Society for the Protection of Unborn Children (Ireland) Ltd. v Grogan , which placed an injunction restraining three students' unions from distributing information in relation to abortion available outside Ireland. The 36th Amendment (2018) allowed the Oireachtas to legislate for the regulation of termination of pregnancy and abrogated the 8th, 13th, and 14th Amendments of the Constitution. Zealand, and South Africa, and so long as the king recognised by those nations as the symbol of their co-operation continues to act on behalf of each of those nations (on the advice of the several Governments thereof) for the purposes of the appointment of diplomatic and consular representatives and the conclusion of international agreements, the king so recognised may... act on behalf of [the Irish Free State] for the like purposes as and when advised by the Executive Council so to do”. 2) Between 1936 and 1949 The Constitution of 1937 didn’t directly refer to the King, but also didn’t (and still doesn’t) state that the Irish President, a function it introduced, was Head of State. The President exercised most of the usual internal functions of a head of state, such as formally appointing the Government, and promulgating laws. Under the External Relations Act 1936 however, it was this King who formally represented the State in its foreign affairs (treaties, for example, were signed in his name), who also accredited ambassadors and who received the letters of credence of foreign diplomats. Representing a State abroad is seen by many scholars as the key characteristic of a head of State. This role meant, in any case, that George VI was the head of State of Ireland in the eyes of foreign nations. The situation was clarified in 1949 with the entering into force of the Republic of Ireland Act 1948, which made Ireland a Republic and deprived the British monarch of all his retained powers through the abrogation of the External Relations Act 1936. It’s worth noting that the text of the Constitution still doesn’t mention the word "republic" (the Republic of Ireland Act 1948 is a mere statute), only asserting that all power is derived, "under God, from the people" (Article 6.1). B) Length of term The President of Ireland (Uachtarán na hÉireann) is the Head of State, holding office for seven years, and likely to be elected for a maximum of two terms, consecutive or otherwise (art. 12.3). The seven-year term of office of the President was inspired by that of the presidents of Weimar Germany. Four presidents have served for two terms, or fourteen years in total: Seán T. O'Kelly (1945-59), Éamon De Valera (1959-73), Patrick Hillery (1976-90), and Mary McAleese (1997-2011). The current president, Michael Higgins, elected in 2011, was reelected in 2018. The President's official residence is Áras an Uachtaráin in Phoenix Park, Dublin. C) Selection The President is directly elected by secret ballot using the instant-runoff voting (also known as alternative vote or ranked-choice voting). That voting method is used in single-seat elections with more than two candidates. Instead of voting only for a single candidate, voters in IRV elections may rank the candidates in order of preference. Ballots are initially counted for each elector's top choice, losing candidates are eliminated, and ballots for losing candidates are redistributed until one candidate is the top-remaining choice of a majority of the voters. When the field is reduced to two, it has become an "instant runoff" allowing a comparison of the top two candidates head-to-head. Compared to plurality voting, IRV may reduce the impact of vote-splitting when multiple candidates earn support from like-minded voters, as long as the spoiler candidates are weak. Candidates must be Irish citizens and over 35 years old (art. 12.4). There’s however a discrepancy between the English and Irish- language texts of article 12.4.1. According to the English text, an eligible candidate "has reached his thirty-fifth year of age", whereas the Irish text has this as "ag a bhfuil cúig bliana tríochad slán" ("has completed his thirty-five years"). Because a person's thirty-fifth year of life begins on their thirty-fourth birthday, this means there’s a year's difference between the minimum ages as stated in the two texts. At present, however, the Irish version of the subsection prevails in accordance with the rule stated in article 25.5.4. An amendment Bill reducing the age of candidacy from 35 to 21 was put to referendum, in May 2015, but it was rejected by the electorate. Candidates must be nominated by at least 20 members of the Oireachtas (there are 218 members) or at least four county or city councils (there are 31 councils) or themselves (in the case of incumbent or former presidents who have served one term). Only resident Irish citizens of 18 may vote. A 1983 Bill to extended that right to British residents was found unconstitutional by the Supreme Court in 1984 (In Re Article 26 and the Electoral (Amendment) Bill 1983). No constitutional Amendment Bill was introduced to override that ruling, on the model of the 9th Amendment of 1984 allowing the extension of the franchise beyond Irish citizens for the election to the Dáil. Where only one candidate is nominated, he or she is deemed elected without the need for a ballot. For this reason, where there’s a consensus among political parties not to have a contest, the President may be 'elected' without the occurrence of an actual ballot. Since the establishment of the office this has occurred on six occasions. D) Powers 1) Ordinary constitutional functions The Constitution provides for a parliamentary system of government, under which the role of the head of State is largely a ceremonial one. The President is formally one of three parts of the Oireachtas (national parliament), which also comprises Dáil Éireann (lower house) and Seanad Éireann (upper house). Unlike most parliamentary republics, the President isn’t even the nominal chief executive. Rather, executive authority is expressly vested in the Government. The Government is obliged, however, to keep the President generally informed on matters of domestic and foreign policy. Most of the presidential functions may be carried out only in accordance with the strict instructions of the Constitution, or the binding advice of the Government. That non-political role of the President is underlined by the fact that he mayn’t leave Ireland without the consent of the Government and that every formal address or message to the nation or to either or both Houses of the Oireachtas must have prior approval of the Cabinet. a) The main functions prescribed by the Constitution _ Appointment of the government The President formally appoints the Taoiseach and the other ministers, and accepts their resignations. The Taoiseach is appointed upon the nomination of the Dáil, and the President is required to appoint whomever the Dáil designates without the right to decline appointment. The remainder of the Cabinet is appointed upon the nomination of the Taoiseach and approval of the Dáil; as with appointing the Taoiseach, the President is required to make the appointment without the right to appoint someone else. Ministers are dismissed on the advice of the Taoiseach and the Taoiseach must, unless there’s a dissolution of the Dáil, resign upon losing the confidence of the house. _ Appointment of the Judiciary The President appoints the judges to all Irish Courts, on the advice of the Government. _ Dissolution of the Dáil  This power is exercised on the advice of the Taoiseach; government or Dáil approval isn’t needed. The President may however refuse a dissolution advised by a Taoiseach having just lost the confidence of the Dáil (see below). _ Promulgation of statutes The President mayn’t veto a Bill that the Dáil and the Seanad have adopted. However, he or she may refer it to the Supreme Court to test its constitutionality (see below). If the Supreme Court upholds the bill, the President must sign it. If, however, it is found to be unconstitutional, the President will decline to give assent. _ Representation of Ireland in foreign affairs The prerogatives associated with that role (for example, the ratification of treaty) are exercised only on the advice of the Government. The President accredits Irish ambassadors and receives the letters of credence of foreign diplomats. Ministers sign international treaties in the President's name. That role was devolved to the Irish President, in 1949, in virtue of the Republic of Ireland Act 1948. _ Supreme Commander of the Defence forces This is a nominal position, the powers of which are exercised on the advice of the Government. The Defence Act 1954 in effect places actual command in the hands of the minister for Defence, article 13.5 of the constitution providing that the supreme command of the Defence forces must be regulated by law. The most famous illustration of that presidential power is the signing and sealing by the President of all the commissions of the officers. _ Power of pardon The President, on the advice of the Government, has "the right of pardon and the power to commute or remit punishment". b) Other functions specified by statute or otherwise _ Ex officio presidency of the Irish Red Cross Society _ Appointment power, on the advice of the Government, of the Senior Professors and chairman of the council of the Dublin Institute for Advanced Studies, the governor of the Central Bank of Ireland, the members of the Irish Financial Services Appeals Tribunal, the Ombudsman and the members of the Garda Síochána Ombudsman Commission, of one trustee to the Chester Beatty Library. _ Patron of Gaisce, the President’s Award, established in 1985, of Clans of Ireland (Finte na hÉireann), an independent organisation established in 1989 with the purpose of creating and maintaining a Register of Irish Clans, including its Order of Merit and of several charities. _ Conferment of the title of Saoi, literally "wise one"; historically the title of the head of a bardic school. It’s the highest honour bestowed by Aosdána, a State-supported association of Irish creative artists. The title is awarded for life and held by at most seven people at a time. 2) Discretionary powers a) Refusal of a Dáil dissolution The Taoiseach is required to resign if he has "ceased to retain the support of a majority in Dáil Eireann," unless he asks the President to dissolve the Dáil. The President has the right to refuse such a request, in which case the Taoiseach must resign immediately. This power has never been invoked. However, the necessary circumstances existed in 1944, 1982 and 1994. b) Reference of bills to the people If requested to do so by a petition signed by a majority of the membership of the Seanad and 1/3 of the membership of the Dáil, the President may, after consultation with the Council of State, decline to sign into law a Bill (other than a Bill to amend the constitution) they consider to be of great "national importance" until it has been approved by either the people in a referendum or the Dáil reassembling after a general election, held within eighteen months. This power has never been used, and no such petition has been invoked. Of the 60 Senators, 11 are nominated by the Taoiseach, so there’s rarely a majority opposed to a government bill. 3) The Council of State The Council of State (an Chomhairle Stáit) is a body established by the Constitution to advise the President in the exercise of many of his discretionary powers. If its advice has to be solicited, it’s however non-binding. It consists of a number of officials from each of three branches of government, who sit ex officio (Taoiseach, Tánaiste, Attorney- General, Ceann Comhairle, Cathaoirleach, Chief Justice, President of the Court of Appeal, President of the High Court), as well as certain former office holders and up to seven individuals of the president's own choosing. The Constitution explicitly states that members appointed by the President may resign or be dismissed by him. These appointees retain their positions until the president's successor takes office. Former office holders are members if "able and willing to act as a member", which implies an ability to resign; but there’s no provision for dismissing them. The discretionary powers the President may only use after consultation with the Council of State are: _ Referring of a Bill to the people for an ordinary referendum _ Referral of a Bill, in whole or part, to the Supreme Court to test its constitutionality. If the Supreme Court finds any referred part unconstitutional, the entire Bill falls. This power mayn’t be applied to a money Bill, a Bill to amend the Constitution, or an urgent Bill the time for the consideration of which has been abridged in the Seanad. This is the most widely used reserve power. In 1976, President Cearbhall O’Dálaigh referred to the Supreme Court the Emergency powers Bill 1976 which found it constitutional. That move was publicly criticized by the Defence minister Paddy Donegan during an address before troops. The Taoiseach Liam Cosgrave having taken side with his colleague, the President felt he had no alternative but to resign on October 22nd 1976. Recent use by President Michael Higgins, in Octobre 2023, about the Judicial Appointments Commission Bill. _ Abridgement of the time for Bills in the Seanad. The President may, at the request of the Dáil, impose a time-limit on the period during which the Seanad may consider a Bill. The effect of this power is to restrict the power of the Seanad to delay a Bill that the Government considers urgent. _ Appointment of a Committee of Privileges. The President may, if requested to do so by the Seanad, establish a Committee of Privileges to solve a dispute between the two Houses of the Oireachtas as to whether or not a bill is a money Bill. _ Address to the Oireachtas or to the Nation The President may address, or send a message to, either or both Houses of the Oireachtas. He may also address a message to the Nation subject to the same conditions as an address to the Oireachtas. _ Convention of meetings of the Oireachtas. The President may convene a meeting of either or both Houses of the Oireachtas. This power would allow the President to step in if, in extraordinary circumstances, the ordinary procedures for convening the houses had broken down. E) Impeachment and removal from office  The President may be removed from office in two ways, neither of which has ever been invoked. The Supreme Court, in a sitting of at least five judges, may find the President "permanently incapacitated" (art. 12. 3), while the Oireachtas may remove the President for "stated misbehaviour" (art. 12. 10). Either house of the Oireachtas may instigate the latter process by passing an impeachment resolution, provided at least 30 members move it and at least 2/3 support it. The other house will then either investigate the stated charges or commission a body to do so; following which at least 2/3 of members must agree both that the President is guilty and that the charges warrant removal. III) Prime Minister and Cabinet A) The Taoiseach Taoiseach (An Taoiseach, plural: Taoisigh) is the official title of the head of government in both English and Irish, and isn’t used for other countries' Prime ministers (who are referred to in Irish as Príomh Aire). He is nominated by a simple majority of Dáil Éireann from among its members. He/she is then formally appointed to office by the President, who is required to appoint whomever the Dáil designates, without the option of declining to make the appointment. For this reason, it’s often said that the Taoiseach is "elected" by Dáil Éireann. If the Taoiseach loses the support of a majority in Dáil Éireann, he/she is not automatically removed from office but, rather, is compelled either to resign or to persuade the President to dissolve the Dáil. The President may refuse to grant a dissolution and, in effect, force the Taoiseach to resign; to date, no president has exercised this prerogative, though the option arose in 1944 and 1994, and twice in 1982. The Taoiseach may lose the support of Dáil Éireann by the passage of a vote of no confidence, or implicitly through the failure of a vote of confidence; or alternatively, the Dáil may refuse supply14. In 1989, Charles Haughey asked for a dissolution, after the defeat of his minority Fianna Fáil government on a private members’ motion regarding the provision of funds for AIDS sufferers (haemophiliacs infected with contaminated blood products by the HSE). While a general election wasn’t necessary – the defeat was seen merely as an embarrassment for the government, not a withdrawal of confidence, the Dáil was dissolved nonetheless. A Taoiseach, wishing to consolidate his support in the Dáil, may ask for a dissolution. Such dissolutions took place in 1948 (Éamon de Valera), 1961 and 1965 (Seán Lemass), 1969 and 1973 (Jack Lynch), 1977 (Liam Cosgrave), 1981 (Charles Haughey). The Taoiseach nominates the remaining members of the Government, who are then, with the consent of the Dáil, appointed by the President. The Taoiseach also has authority to advise the President to dismiss Cabinet ministers from office, advice the President is required to follow by convention. The Taoiseach is further responsible for recommending to the President the appointment of eleven members of the Seanad. The Department of the Taoiseach is the government department which supports and advises the Taoiseach in carrying out his/her various duties. It’s located in Government Buildings in Meerion Street, Dublin. Before the enactment of the Constitution of 1937, the head of government was referred to as the President of the Executive Council (of the Irish Free State), an office successively held by W. T. Cosgrave (1922-32) and Éamon de Valera (1932-7). De Valera was the first Taoiseach from 1937 to 1948. He headed thereafter twice the Government between 1951 and 1954 & 1957 and 1959. The positions of Taoiseach and President of the Executive Council differed in certain fundamental respects. Under the Constitution of 1922, the latter was vested with considerably less power and was largely just the chairman of the Cabinet. For example, the President of the Executive Council couldn’t dismiss a fellow minister on his own authority. Instead, the Executive Council had to be disbanded and reformed entirely in order to remove a member. The President of the Executive Council also didn’t have the right to advise the Governor-General to dissolve Dáil Éireann on his own authority, that power belonging collectively to the Executive Council. In contrast, the Taoiseach possesses a much more powerful role. He may both advise the President to dismiss ministers and dissolve Parliament on his own authority—advice that the President is almost always required to follow by convention. His role is greatly enhanced because, under the Constitution, he is both de jure and de facto chief executive. In most other parliamentary democracies, the head of state is at least the nominal chief executive, while being bound by convention to act on the advice of the cabinet. In Ireland, however, executive power is explicitly vested in the Government, of which the Taoiseach is the leader. Since the Taoiseach is the head of government, and may remove ministers at will, many of the powers specified, in law or the constitution, to be exercised by the government as a collective body, are, in reality, at the will of the Taoiseach. The Government almost always backs the Taoiseach in major decisions, and in many cases often merely formalizes that decision at a subsequent meeting after it has already been announced. Nevertheless, the need for collective decision making on paper acts as a safeguard against an unwise decision made by the Taoiseach. B) The Government 1) Designation The Government of Ireland (Rialtas na hÉireann) is the Cabinet that exercises executive authority in Ireland. Headed by the Taoiseach, it’s composed of ministers of government, who must be members of the Irish Parliament. They are appointed by the President, including the Tánaiste (deputy Prime Minister), on nomination of the Taoiseach, after approval by the Dáil. The government is dependent upon the Oireachtas to make primary legislation and, as such, the government needs to command a majority in the Dáil in order to ensure support and confidence for budgets and government bills to pass. The Government is also known as the Cabinet. 2) Membership Membership of the Cabinet is regulated by article 28 of the Constitution requiring the government to consist of between seven and fifteen members. Since 1966, all Irish Cabinets have been formed with the constitutional maximum of fifteen ministers. The detail and structure of the Government of Ireland has its legislative basis in the Ministers and Secretaries Act 1924; it has been amended on a number of occasions since its enactment. No more than two members of the Cabinet may be members of Seanad Éireann. The Taoiseach, Tánaiste and Minister for Finance must be members of the Dáil. In practice, however, the members of the Cabinet are invariably members of the Dáil. Since the adoption of the 1937 constitution, only two ministers have been appointed from the Seanad (Seán Moylan in 1957 and James Dooge from 1981 to 1982). Ministers of government are in charge of ministries, known as Departments of State. They are assisted by ministers of State, who aren’t members of the Government. Exceptionally, a minister without portfolio, i.e. who isn’t the head of a Department of State, may 14 One example of the Dáil refusing supply occurred in January 1982, when the then Fine Gael-Labour Party coalition government of Garret FitzGerald lost a vote on the budget. be appointed to the Government; this occurred in 1939 during the period of the Emergency when Frank Aiken served as Minister for the co-ordination of Defensive measures until 1945. Non-members of Government may attend meetings of the Cabinet. They have, of course, no voting rights but may otherwise participate fully and normally receive circulated Cabinet papers on the same basis as a full member of Government. Votes are rare however, with the cabinet usually following the Taoiseach or working by consensus. Those non-members include the Attorney- General (as legal advisor to the Government), the Chief Whip (the disciplinarian for all government parties, to ensure that all deputies, including ministers, attend for Dáil Business and follow the government line on all issues), and some ministers of State (informally known as super junior ministers) chosen by the Government. 3) Term of office The Government continues in office until the nomination of a new Taoiseach by Dáil Éireann. This will either be after a general election or after the nomination of a Taoiseach during the lifetime of a Dáil term. A Dáil term may last no longer than five years by law, though the constitution allows seven. Most governments in recent years have served 4 to 5 years. The Government must enjoy the confidence of Dáil Éireann if it is to remain in office. If the Taoiseach ceases "to retain the support of a majority in Dáil Éireann", either Dáil Éireann must be dissolved or the Taoiseach must resign. This applies only in cases of a no- confidence vote or loss of supply (rejection of a budget), rather than when a government Bill is rejected. The President may refuse to grant a dissolution to a Taoiseach who no longer enjoys the support of the Dáil, thus forcing the resignation of the Taoiseach. When the Taoiseach resigns, the entire Government is deemed to have resigned as a collective. The Taoiseach may also direct the President to dismiss or accept the resignation of individual ministers. 4) Authority and powers Unlike the Cabinets in other parliamentary systems, the Government is both the de jure and de facto executive authority, the Constitution explicitly vesting executive authority in the Government, not the President. In other parliamentary regimes, the head of state is usually the nominal chief executive, though bound by convention to act on the advice of the Cabinet. The executive authority of the Government is subject to certain limitations. Firstly, the Government must act in accordance with the Constitution. Secondly, Ireland mayn’t declare war or participate in a war, without the consent of the Dáil (in case of actual invasion, however, the Government may take whatever steps they may consider necessary for the protection of the State). Thirdly, treaties must be laid before Dáil Éireann. Huge difference with the UK government: impossibility to issue primary law text in matters where Parliament never voted statutes, as the Supreme Court in Byrne v Ireland and Webb v Ireland held that the Prerogative didn’t survive the creation of the IFS. However, the Supreme Court recognised the existence of implicit executive powers that must be exercised subject to the legal limits imposed by the Constitution (Haughey v Moriarty ). Among those powers inherent in the State is that to deport aliens (Osheku v Minister for Justice ), and more generally immigration control (In Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 ) and that to establish tribunals of inquiry and non-statutory schemes (Bode v Minister for Justice, Equality and Law Reform ). Such inherent powers don’t depend on positive legislation to exist. As the Constitution hasn’t expressly assigned the said powers to any constitutional organ and as they aren’t clearly neither legislative nor judicial in character, they must be part of the executive power, exercisable as such by the government. The rules produced in the exercise of those rights may be used to confer privileges (for example allowing a foreigner to remain in Ireland), but not to impose burdens on rights, as many rights are either guaranteed by statute or even by the Constitution. It follows that the government can’t use its inherent powers to suspend or abrogate statutory provisions (NHV v Minister for Justice and Equality ). Besides, nothing in the Constitution forbids the Oireachtas to confer a statutory basis to an implicit power and to regulate the conditions under which it will be, in the future, exercised (Laurentiu v Minister for Justice ), turning a hitherto implicit executive power into a legislative delegated power. Concerning delegated legislation, a provision in a parent Act may allow a minister to issue statutory instruments. As in the UK, the draft SIs need to be laid before the Oireachtas during a specified period of time. At the expiry of that period, a SI enters into force, either by positive or negative resolution, depending on the option indicated by the parent Act (Statutory Instruments Act 1947). In the first case, a formal vote needs to be held to confirm the support of the Oireachtas. In the second case, a formal may be held to confirm the support of the Oireachtas, but only if its opponents demand so. A parent Act mustn’t give powers to the delegate permitting him to assume legislative power to enact principles and policies, as such a function is the exclusive purview of the Oireachtas (Cityview Press Ltd v An Chomhairle Oiliúna ; see also Bederev v Ireland ), under article 15.2 of the Constitution. The delegate must, of course, exercise his powers only to implement the parent Act. If he goes beyond his delegation, he acts ultra vires and his regulation might be found illegal if an application for judicial review is brought before a Court (Cassidy v Minister for Industry and Commerce ). IV) The Oireachtas It has the power to adopt legislation with effect within the borders of Ireland, but also, since the 19th amendment 1998, adopted after the Good Friday Agreement, introducing article 29.8 in the Constitution, with an extra-territorial effect. A) Dáil Éireann Dáil Éireann (lit. Assembly of Ireland) is the lower house, and principal chamber, of the Oireachtas (Irish legislature), which also includes the President of Ireland and Seanad Éireann (art. 15.1. 2). It currently consists of 158 members, known as Teachta Dála (plural Teachtaí Dálai) commonly abbreviated as "TDs". Its powers are similar to those of lower houses under many other bicameral parliamentary systems, and it’s by far the dominant branch of the Oireachtas. Subject to the limits imposed by the Constitution, it has power to pass any law it wishes, and to nominate and remove the Taoiseach. Since 1922, its seat has been in Leinster House, Dublin. 1) Composition Dáil Éireann has 160 members representing 39 constituencies; the number has occasionally been changed within the limits of the Constitution, which sets a minimum ratio of one member per 20,000 of the population, and a maximum of one per 30,000 (art. 16.2.2).  Under current legislation, members are directly elected at least once in every five years15 by the electorate under a system of proportional representation known as the Single transferable vote (STV, art. 16.5). Membership of the Dáil is open to Irish citizens who are 21 or older (art. 16.1.1). The Dáil electorate consists of Irish and British citizens over 18 years of age who are registered to vote in Ireland (art 16.2.1). Under the Constitution, a general election for Dáil Éireann must occur once in every seven years (art. 16.5), but an earlier maximum of five years is set by the Electoral Act 1992. The Taoiseach may, by making a request to the President, effectively dissolve the Dáil at any time (art. 13), in which case a general election must occur within 30 days (art. 16.3.1). The President may however refuse such a request presented by a Taoiseach having lost the confidence of the Dáil, and ask the Dáil to form an alternative government without a general election taking place. The STV electoral system broadly produces proportional representation in the Dáil. The small size of the constituencies used, however, usually gives a small advantage to the larger parties and under-represents smaller parties. The STV is designed to achieve proportional representation through ranked voting in multi-seat constituencies. Under STV, each elector’s vote is initially allocated to his/her most preferred candidate. Votes are totalled and a quota (the number of votes required to win a seat) derived. If your most- favored candidate achieves quota, he/she is elected and any surplus vote is transferred to other candidates in proportion to the voters' stated preferences. If, however, more candidates than seats remain, the bottom candidate is then eliminated with his/her votes being transferred to other candidates as determined by the voters' stated preferences. These elections and eliminations, and vote transfers, continue until there are only as many candidates as there are unfilled seats. The system provides approximately proportional representation while mostly ensuring that the party with the most votes gets the most seats and that minorities have some representation; enables votes to be cast for individual candidates rather than for parties and party machine-controlled party lists, and – compared to FPTP - reduces wasted votes (votes being wasted on losers and surplus votes being wasted on sure winners) by transferring them to other candidates. Since 1989, the norm in Ireland has been coalition governments. Prior to 1989, however, one-party government by the Fianna Fáil party was common (1932-48, 1951-4, 1957-73, 1977-81, February-November 1982, 1987-1994, 1997-2011). The multi-seat constituencies required by STV mean that candidates must often compete for election with others from the same party. This increases voter choice, but is accused by some of producing TDs who are excessively parochial. Two failed attempts – 1959 and 1968 – have been made to change to the United Kingdom's plurality voting system ('first-past-the-post') electoral system. Both were rejected in constitutional referendums. By-elections occur under the alternative vote system (the same used for the election of the President). Currently, every constituency elects between three and five TDs. The constitution specifies that no constituency may return fewer than three TDs (art. 16.2.6), but doesn’t specify any upper limit to constituency magnitude. However, section 6 of the Electoral Act 1997 specifies a maximum of five seats per constituency. The constitution requires that constituency boundaries be reviewed at least once in every twelve years (art 16.2.4), so that boundaries may be redrawn to accommodate changes in population. Boundary changes are currently drafted by an independent commission, and its recommendations are usually followed. 2) Layout The Dáil chamber has confrontational benches but the end segment is curved to create a partial hemicycle. The government TDs sit on the Ceann Comhairle’s (chairman) right, with the main opposition party, with its Leader and its Chief Whip, on his left. The Chamber was adapted for use as a Parliament from its former use as a lecture theatre. 3) Ceann Comhairle The Ceann Comhairle is chosen from among TDs, but is expected to observe strict impartiality. Despite this, the government will usually try to select one of its own for the position, if its numbers allow. To protect the neutrality of the chair, an incumbent Ceann Comhairle doesn’t seek re-election as a TD but rather is deemed automatically to have been re-elected by his constituency at a general election, unless retiring (art. 16.6). The Ceann Comhairle doesn’t vote except in the event of a tie. 4) Powers While in principle Dáil Éireann is only one of three components of the Oireachtas, in practice the powers the Constitution grants to it render it, by far, the dominant branch, meaning that most Bills passed by Dáil Éireann will ultimately become law. In addition to its legislative16 (including treaty ratification if the treaty includes financial provisions) and budgetary role (the Dáil is the only House which may introduce and amend money Bills, i.e. financial and tax legislation), it’s the Dáil that nominates the Taoiseach to the President for appointment and approves the Taoiseach's nominees (en bloc) to serve as Government ministers as well as his nominee for Attorney General. The Dáil may also pass a motion of no-confidence in the Government, in which case the Taoiseach must either ask for a parliamentary dissolution or resign. Such an occurrence has occurred only once, in November 1992, when Albert Reynold’s government was censured. In November 1982, Charles Haughey’s government was de facto ousted by the Dáil, when it lost the support of the Independent TD Tony Gregory and the Workers’ Party, depriving it of its majority. As well as the November 1982 and November 1992 instances of loss of confidence, there has been one occasion when the Irish government fell due to loss of supply in the Dáil. That was in January 1982, when Jim Kemmy withdrawing support for the minority Government of Garret FitzGerald caused the failure of a budget resolution. It has been quite common for a Taoiseach, in the face of the imminent threat of losing a confidence motion, to strike first by asking for a dissolution (in September 1927, 1938, 1944, 1951, 1954, 1957 and 1987). A Declaration of war has to be approved by the Dáil which has also the power to nominate the Comptroller and Auditor General (constitutional officer responsible for public audit) to the President for appointment. 5) Activities Dáil Éireann determines its own standing orders and its members are protected by certain rights arising from parliamentary privileges. Article 15.13 of the Constitution guarantees freedom of speech to parliamentarians, and, in AG v Hamilton , the Supreme Court held that this protects them from any form of civil or criminal liability in respect of statements made by them in the Oireachtas. 15 If article 16.5 of the constitution states that “Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting”, it however adds that “a shorter period may be fixed by law”. In practice, the five years length, in use under the IFS, under the Electoral (Amendment) Act 1927 (No 21 of 1927) has been kept since the entering into force, in 1937, of the current constitution, the status of 1927 being left intact. It has since then been replaced by the Electoral Act 1992, which states "The same Dáil shall not continue for a longer period than five years from the date of its first meeting." 16 The Oireachtas may pass Acts to amend the Constitution (which will be submitted to a referendum in order to enter into force), Public general Acts and Private Acts.  In line with other modern parliamentary systems, TDs don’t generally vote in accordance with their consciences or the wishes of their constituents, but must follow the instructions of party whips. Except in exceptional circumstances, the Dáil meets in public. The Dáil currently has three standing committees and thirteen select committees. Debate and speeches are generally spoken in English, but it’s still acceptable for TDs to switch back and forth between Irish and English. 6) Voting procedure Firstly, the Ceann Comhairle (or Deputy Ceann Comhairle) puts the question in Irish asking the TDs present to say Tá (Yes) or Níl (No) if they agree or disagree with the question before them. The Ceann Comhairle then gives his opinion as to the outcome of the voice vote. Deputies may challenge the Ceann Comhairle’s determination and demand a recorded vote by shouting Vótáil! (Vote!) The Ceann Comhairle then shouts 'Vótáil' again which starts the voting process. Division bells sound around Leinster House and in some of its adjoining buildings calling Deputies to the chamber to vote. The bells ring for six minutes and the doors to the chamber are locked after a further four minutes. The Ceann Comhairle then appoints two tellers for each side and Deputies are given one minute to vote. The vote is taken by electronic means whereby Deputies press either the Tá or Níl button on their desks to vote for or against a motion. After the voting time has concluded, a sheet (Division Paper) containing the result and each TD’s vote is signed by the four tellers and given to the Ceann Comhairle who declares the result. While electronic voting has become the norm, the Dáil votes manually through the lobbies at the back of the chamber on a number of occasions, for example, motions of no confidence. A teller in an electronic vote may call a manual vote if he so wishes. This has become an opposition tactic during important votes which are widely covered in the media. 7) Legislative referendums The Constitution also provides for referendums on ordinary Bills; known as ordinary referendums (art. 27). To date, this provision has never been used. Such a referendum is only held if the President decides discretionally that a Bill contains a proposal of such national importance that the will of the people should be established. This would only happen following a joint petition from both Houses of the Oireachtas, including a majority of senators and 1/3 of the members of the Dáil. To allow the signing of such a document, the President is forbidden, when he receives a Bill passed by both houses of the Oireachtas or by the Dáil and deemed to have been passed by the Seanad, to sign it into law before five days. The President must consult the Council of State for its non-binding advice. He may separately decide to refer the bill to the Supreme Court under article 26 of the Constitution; in which case, he won’t consider the article 27 petition until after the Court has stated that the Bill isn’t repugnant to the Constitution. He has 10 days to decide on the petition, or only 6 days if there was an article 26 ruling beforehand. If he rejects the petition, he simply signs the Bill as normal; if he accepts it, he informs the Taoiseach, the Ceann Comhairle of the Dáil and the Cathaoirleach of the Seanad (Speaker of the upper House) in writing. The Constitution specifies that one of two things may happen within 18 months of the decision to refer the bill to the people; either an ordinary referendum approves the Bill17, or a general election is held, followed by a resolution of the Dáil approving the Bill, the intervening general election being presumed to have given the same mandate for the Bill that an ordinary referendum would have given. If either happens, the President must then sign the Bill. If neither happens, the Bill lapses by default. The ordinary referendum in theory allows the Seanad to exercise a check on the Dáil by providing a mechanism for it to prevent the passing of a bill with which it disagrees. B) Seanad Éireann Seanad Éireann is the upper house of the Oireachtas. It’s located in Leinster House, Dublin. It’s the successor of the Free State Seanad which had been abolished entirely in 1936 after it had delayed some Government proposals for constitutional changes (it was formed of a mixture of members appointed by the President of the Executive Council and members indirectly elected by the Dáil). The Constitution of 1937 created a new Seanad with less independence from the Dáil. An amendment to abolish it was proposed to the electorate in October 2013, but it was defeated. 1) Composition Under article 18 of the Constitution, Seanad Éireann consists of 60 senators and is composed as follows: _ 11 nominated by the Taoiseach. These nominations allow the government to reach a majority in the Seanad, for smaller parties in coalition or supporting the government to achieve more significant Seanad representation, and for the appointment of independent members to represent particular interests. A number of representatives from Northern Ireland have been selected, since 1982, as Independent senators, and, in 2016, Enda Kenny nominated Billy Lawless, a resident of Chicago, to represent the interest of the Irish living abroad. _ 6 elected by the graduates of certain Irish universities (3 by graduates of the University of Dublin known as Trinity College and 3 by the National University of Ireland (NUI) comprising University College Cork, University College Dublin, University of Galway, Maynooth University). The 7th Amendment, adopted in 1979, allows for a redistribution of the six university seats among the University of Dublin, the National University of Ireland, and any other institutions of higher education in the State which don’t have representation. No legislation followed since to make any such change. In Heneghan v Minister for Housing, Planning and Local Government , on a application brought by a graduate of the University of Limerick, the Supreme Court struck down the 1937 law limiting the right to vote to NUI and Trinity College graduates. _ 43 elected from five special panels of nominees (known as vocational panels) by an electorate consisting of TDs (members of the Dáil), outgoing senators and members of city and county councils. Nomination is restrictive for the panel seats, with only Oireachtas members and designated nominating bodies entitled to nominate. Each of the five panels consists, in theory, of individuals possessing special knowledge of, or experience in, one of five specific fields. In practice, the nominees are party members, often, though not always, failed or aspiring Dáil candidates. Those 43 seats as distributed as follow. Seven seats on the Administrative Panel: Public administration and social services (including the voluntary sector); eleven seats on the Agricultural Panel: Agriculture and the fisheries; five seats on the Cultural & Educational Panel: Education, the arts, the Irish language and Irish culture and literature; nine seats on the Industrial & Commercial Panel: Industry and commerce (including engineering and architecture); eleven seats on the Labour Panel: Labour (organised or otherwise). Some of the senators elected by the vocational panels have also been, since 1996, from Northern Ireland. 17 The Bill is approved if a majority of votes are cast in favour of it. It is disapproved only if a majority of votes are cast against it representing at last 1/3 of the registered voters. This means that a Bill rejected by a majority of the cast votes will still become law, if the overall turnout is low.  The new system of vocational panels used to nominate candidates for the Seanad was inspired by Roman Catholic social teaching of the 1930s, and in particular the 1931 papal encyclical Quadragesimo anno (Latin for "In the 40th Year"; 40 years after Leo XIII’s encyclical Rerum novarum addressing the condition of workers). In this document, Pius XI, discussing the ethical implications of the social and economic order, argued that the Marxist concept of class conflict should be replaced with a vision of social order based on the co-operation and interdependence of society's various vocational groups. The general election for the Seanad must occur not later than 90 days after the end of the term of Dáil Éireann or its dissolution. The election occurs under the system of STV (in the panel constituencies, each vote counts as 1000, allowing fractions of votes to be more easily transferred). Membership is open to all Irish citizens over 21, but a senator mayn’t also be a member of Dáil Éireann. However, nomination to vocational panel seats is restricted; nomination in the University constituencies requires signatures of 10 graduates. In the case of vacancies in the vocational panels, the electorate in the by-election consists of Oireachtas members only. Vacancies to the university seats are filled by the full electorate in that constituency. 2) Powers The powers of Seanad Éireann are modelled loosely on those of the British House of Lords. It was intended to play an advisory and revising role rather than to be the equal of the popularly elected Dáil. While notionally every Act of the Oireachtas must receive its assent, it can only delay rather than veto decisions of the Dáil. The Constitution imposes the following specific limitations on the powers of the Seanad. Firstly, in the event that a Bill approved by Dáil Éireann hasn’t received the assent of the Seanad within 90 days, the Dáil may, within a further 180 days, resolve that the measure is "deemed" to have been approved by the Seanad. This has only occurred twice since 1937, once in 1959 and again in 1964. In all instances, the Dáil eventually passed the requisite motion deeming the legislation to have been approved. Secondly, a money Bill, such as the budget, may be deemed to have been approved by the Seanad after 21 days (the Senate mayn’t amend money Bills but may make recommendations to the Dáil on such bills). Thirdly, in the case of an urgent Bill, the time that must have expired before it may be deemed to have been approved by the Seanad may be abridged by the Government with the concurrence of the President (this doesn’t apply to bills to amend the constitution). Fourthly, the fact that 11 senators are appointed by the Taoiseach usually ensures that the Government, which must have the support of the Dáil, also enjoys a majority in the Seanad. The Constitution grants, however, to the Seanad certain means by which it may defend its prerogatives against an overly zealous Dáil. Firstly, the Seanad may, by a resolution, ask the President to appoint a Committee of Privileges to adjudicate as to whether or not a particular Bill is a money bill. The President may, however, refuse this request. This procedure hasn’t been initiated since the re- establishment of the Seanad under the current Constitution in 1937. Secondly, if a majority of senators and at least 1/3 of the members of the Dáil present a petition to the President stating that a bill is of great "national importance", the President may decline to sign the Bill until it has been referred to the people. This means that he or she may refuse to sign it until it has been approved either in an ordinary referendum or by the Dáil after it has reassembled after a general election. 3) Activities Seanad Éireann adopts its own standing orders and appoints its president, known as the Cathaoirleach. The Taoiseach appoints a senator to be Leader of the House (Treoraí an Tí) and direct government business there (there’s no equivalent position in the Dáil where the role is played by the Taoiseach himself). The Seanad establishes its own standing committees and select committees; senators also participating, along with TDs in joint committees of the Oireachtas. A maximum of two senators may be ministers in the Government. V) Judicial review of statutes The Constitution states that it is the highest law of the land and confers to the High Court (An Ard-Chúirt), the Court of Appeal (An Chúirt Achomhairc; created by the 33rd Amendment, 2013) and the Supreme Court of Ireland (An Cúirt Uachtarach na hÉireann) authority to interpret its provisions, and to strike down the laws of the Oireachtas and activities of the Government found unconstitutional (judicial review of executive action was admitted in Boland v An Taoiseach ). The courts also grant injunctions against public bodies, private bodies and citizens to ensure compliance with the Constitution. Acts passed after the coming into force of the Constitution are invalid if "repugnant" to the constitution (art. 15.4.2), whereas laws in force prior to the coming into force of the constitution are invalid if "inconsistent" with the constitution (art. 50.1). The Supreme Court may suspend a declaration of unconstitutionality of a statutory provision for a period, so as to allow the Oireachtas time to amend it and render it conform with the Court’s guidance (NHV v Minister for Justice & Equality ). The Constitution also provides, under article 26, for the judicial review of Bills before they are signed into law (a priori and abstract review of constitutionality). The power to refer Bills is personally exercised by the President after consulting the Council of State. When the Supreme Court upholds the constitutionality of a Bill referred to it under article 26, its constitutionality may never again be questioned in any court whatsoever (art. 34.3.3). Supreme Court justices are normally free to deliver their own opinions, whether dissenting or concurring. There’s however an exception when considering the constitutionality of a Bill referred by the President, for which only a single opinion will be delivered (art. 26.2.2). Formerly, the single-judgment rule also applied when considering the constitutionality of a statute passed under the 1937 Constitution; this was removed by the 33rd Amendment (2013). Multiple opinions have always been allowed concerning passed statutes prior to 1937. After a slow start, the Supreme Court has, since the 1960s, expounded a significant constitutional jurisprudence. It has insisted on the guarantee of the separation of powers (Attorney General v Hamilton ) and developed a doctrine of unenumerated rights, such as the right to bodily integrity (Ryan v The Attorney General ), the right to marriage (State (Nicolaou) v An Bord Uchtála ), the right to litigate (Macauley v Minister for Posts & telegraphs ), the right to legal representation on criminal charges (State (Healy) v Donoghue ), the right to communicate (Attorney General v Paperlink ), and the right to earn a living (Cox v Ireland ), based on an expansive reading of article 40.3.1°, with elements of natural law and liberal democratic theory. It has also found a broad right to privacy in marital affairs implicit in article 41 (McGee v Attorney General : use of contraceptives) and a right to an abortion where there’s a risk to the life of the mother through suicide in article 40.3.3° (Attorney General v X ). Ratification of major changes to the treaties establishing the EU has been subordinated to constitutional amendments (Crotty v An Taoiseach and Meagher v Minister for Agriculture ). The doctrine of proportionality, used as a criterion of fairness and justice in statutory interpretation cases to discern the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act, has likewise been introduced in Irish Law by the Supreme Court (Heaney v Ireland about the constitutionality of s 52 of the Offences against the State Act 1939 which was claimed to infringe a right to silence). Restrictions on constitutional rights are required to pass a proportionality test: “The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen to pass a proportionality test must be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; impair the right as little as possible; and be such that their effects on rights are proportional to the objective. For an example of a statutory provision struck down for failing to impair as little as possible a right, Cox v Ireland about section 34 of the Offences against the State Act 1939 providing that any public employee convicted in the Special Criminal Court of an offence scheduled to the Act should be deprived from his job and be disqualified from employment in the public service for seven years. When interpreting the Constitution, a court must enforce a presumption of constitutionality, but must rebut it if the challenged provision is obviously defective (Pigs Marketing Board v Donnelly ; for an illustration: M v An Bord Uchtála , where s 12 (1) of the Adoption Act 1952 precluding adoptions to couples of mixed religions was found in violation of the Constitution). If a statutory provision may be given two different constructions; one rendering it unconstitutional, the other one preserving its constitutionality, that last one should be preferred (Mc Donald v Bord nag Con concerning the Greyhound Industry Act 1958, see also In Re Haughey ). A court however mayn’t override express and clear provisions in order to render a legislation constitutional; the only remedy in that instance is to strike it down (Kelly v Minister for the Environment ). If one statutory provision is found in breach of the Constitution, a court may decide to strike the whole statute containing it or to delete only the offending words (=severance). When retaining the second branch of the alternative, a court will show judicial restraint, but runs the risk of being accused of usurping the legislative function, producing a remodel statutory provision the Oireachtas never intended. For a refusal to sever, Maher v AG. For an illustration of severance, Desmond v Glackin n°2. Concerning the effect of a declaration of unconstitutionality, pre-1937 statutes (=passed before the enactment of the current constitution) are deemed void from the date on which the Constitution was enacted, but post-1937 statutes are deemed void ab initio (Murphy v AG holding that certain provisions of the Income Tax Act 1967 were void ab initio on the grounds that they treated married persons living together less favourably than unmarried persons living together, in breach of art 41 of the Constitution). A statutory provision found void is ineffectual and of no legal effect, and everything done on foot of a void provision will be declared as a consequence void as well (State (Byrne) v Frawley ). By exception to that retroactive application of declarations of unconstitutionality, “In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution before the case reaches finality, the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional”. In such circumstances, the declaration of unconstitutionality will only have prospective effect (A v Governor of Arbour Hill Prison ). To avoid much of the disruption caused by retroactive declarations of unconstitutionality, the Supreme Court allowed courts, if they found it necessary, to issue suspended declarations of unconstitutionality for a short period of time, giving the Oireachtas an opportunity to enact in urgency replacement legislation before the declaration becomes operative. NHV v Minister for Justice and Equality about the absolute ban on asylum seekers working declared in violation of the constitutionally protected right to seek work. See also, PC v Minister for Social Protection declaring the incompatibility with the separation of powers of a provision of the Social Welfare (Consolidation) Act 2005 banning prisoners from any social welfare benefit, as it amounted to a punishment imposed other than by a court. When interpreting the Constitution, a court may use: *a literal approach where the ordinary everyday meaning is attributed to words. People (DPP) v O’Shea : as article 34.4.3 of the Constitution provides that the Supreme Court has the power to hear appeals on “all decisions” of the High Court, it must be construed to mean that there’s no ban on an appeal by the prosecution against an acquittal in the Central Criminal Court before the Supreme Court. *a purposive (or broad) approach looking at the totality of the Constitution on an issue to establish the essence of the meaning. Attorney General v Paperlink discovering from various articles of the Constitution a general right to communicate. *a harmonious approach looking at different parts of the Constitution, as they shouldn’t be read in isolation. Doherty v Referendum Commission about the diffusion of information during the electoral campaign before the holding of a referendum. *a historical approach searching for the intent of the framers of the Constitution. Zappone & Anor v Revenue Commissioners finding that the Irish society hadn’t changed to such an extent since 1937 that there was a consensus to change the historical meaning of marriage in the Constitution to one including same-sex marriage or the acceptance of marriage equality. To be allowed to challenge a statutory provision, you need to demonstrate that you are personally affected by it, i.e. that you have standing or locus standi. You are therefore forbidden to invoke the right of a third party (jus tertii) in order to strike down a legislation (Cahill v Suton ). Two exceptions: where a particular governmental action affects everyone in general, but no one in particular, a concerned member of the public will have standing (Crotty v An Taoiseach ); a litigant may have standing even where he isn’t directly prejudiced and where the right asserted very definitely belongs to a third party, if that third party isn’t in a position to institute proceedings (Society for the Protection of the Unborn Children v Coogan , where the SPUC was granted standing to seek injunctions restraining the publication by University College Dublin students union of material giving information on abortion and pertinent addresses). VI) Local government A) Structure Article 28A of the constitution of Ireland, inserted in 1999, provides a constitutional basis for local government (“The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities”). The Oireachtas is empowered to establish the number, size and powers of local authorities by law. Under Article 28A, members of local authorities must be directly elected at least once every five years by a franchise consisting of at least those entitled to vote in election for the Dáil. Local government is governed by a series of Local Government Acts, beginning, before independence, with the Local government (Ireland) Act 1898. The most significant of these is the Local Government Act 2001, introducing a two-tiered local government. The Local Government Reform Act 2014 abolished the bottom tier, the town councils, leaving 31 local authorities. There are 26 county councils, 3 city councils (Dublin, Cork and Galway), and 2 city and county councils (Limerick and Waterford). B) Responsibilities Local authorities only exercise powers conferred by statute. Their powers result therefore from delegations by the State in limited geographic areas.  Local government has progressively lost control over services to national and regional bodies, particularly since the foundation of the State in 1922. For instance, local control of education has largely been passed to Education and Training Boards, whilst other bodies such as the Department of Education and Skills still hold significant powers. In 1970, local government lost its health remit, already eroded by the creation of the Department of Health in 1947, to the Health Board system. In the 1990s, the National Roads Authority took overall authority for national roads projects, supported by local authorities which maintain the non-national roads system. The whole area of waste management has been transformed since the 1990s, with a greater emphasis on environmental protection, recycling infrastructure and higher environmental standards. In 1993, the Environmental Protection Agency was established to underpin a more pro-active and co-ordinated national and local approach to protecting the environment. Another inroad into local government responsibilities has been the attribution by the Planning and Development (Strategic Infrastructure) Act 2006 to An Bord Pleanála (ABP; the Planning Board), an independent, statutory, quasi-judicial body, of the power to decide on appeals from planning decisions made by local authorities. Additionally, the trend has been to remove decision-making from elected councillors to full-time professionals and officials. In particular, every city or county has a manager, who is the chief executive but also a public servant appointed by the Public Appointments Service, thus answerable to the national government as well as to the local council. Local policy decisions may also sometimes be heavily influenced by the TDs representing the local constituency in the Dáil who may be influenced by national politics rather than local needs. Local government bodies have kept responsibility for planning, local roads, sanitation, and libraries, under the supervision of the minister for Housing, Planning and Local Government.