Constitutional Notes PDF

Constitutional frameworks: =========================== **10 topics covered in lectures**: introduction to constitution, fundamental principles/basic values, role of the judicial review, Dail elections/Seanad, legislative power, legislative power concluded, administration of justice, judicial indep...

Constitutional frameworks: =========================== **10 topics covered in lectures**: introduction to constitution, fundamental principles/basic values, role of the judicial review, Dail elections/Seanad, legislative power, legislative power concluded, administration of justice, judicial independence, executive power and president & international relations. **4 corresponding tutorial topics**: interpreting the constitution, legislative power, judicial power and executive power. Important to go over supreme court ruling on Seanad as it is recent! Topic 1- introduction to the constitution: ------------------------------------------- - The constitution is the fundamental law of the state. - There are 3 branches of power in the constitution- legal, executive and judicial. Topic 2- fundamental principle and basic values: ------------------------------------------------- - The constitution refers to the nation. It is the first reference in the first article of the constitution 'inalienable, indefeasible and sovereign right'. - The old articles 2 and 3 were changed after the Good Friday Agreement as they were forcing Irish unity on Northern Ireland. - The proclamation touches on the sense of nationality too. - The 1937 preamble also touches on the nationality of Ireland, 'We the people of Eire'. - The new articles 2 and 3 are the results of negotiations between both governments. It talks about the entitlements of Irish citizens as their birth right. - Article 3 now deals with uniting the people who share the island. It excludes the standing or influence of Great Britian. - Article 5 defines the state as a 'sovereign, independent, democratic state'. - The constitution expresses not only the legal norms but the basic doctrines of political and social theory. It reflects, in part, aspirations and aims and expresses the political theories on which the people acted when they enacted the constitution. - The 1976 bill proposed to make certain crimes committed in Northern Ireland offences under the law of the state, triable on this side of the border. This was struck down. - Democracy is not the sole aspect of the constitution; nationality, sovereignty, separation of powers, rule of law and protection of fundamental rights are also aspects. - Nationality as an identity is very vague and abstract, not clearly distinguishable from sovereignty and democracy. - Article 5 clearly states that Ireland is a sovereign state. - Separation of powers- article 6 purposes the existence of legislative power, executive power and judicial power, each of which is exercised by different organs of government. Topic 3- role of judicial review: ---------------------------------- - Constitution has two relevant meanings- 1. Rules and principles for a state's government, 2. Single written instrument containing the most fundamental of these. - All states have one, almost all have two. - The constitution can be seen as flexible or rigid. - Role of precedent- Ireland has a system of common law. - Decisions made by courts are sources of law, through the doctrine of precedent. - Earlier decisions bind lower courts and the same court in later case. - The part of an earlier decision that binds is the ratio decidendi (reason for decision) - Ratio decidendi- legal rule or principle that determined the outcome in the earlier case. - Consider what facts the earlier court treated as being relevant and decisive. - Not always what judges in the earlier court said was the basis of the decision. - Any statements of law in an earlier case not part of the ratio decidendi are obiter dicta (things said incidentally) - Flexibilyt of precedent- often decisions on appeal include judgements from several judges- ambiguity about ratio decidendi. - One judgement rule creates a different kind of ambiguity. - The later judge decides what a precedent's ration decidendi is. - Even if a non-binding decision may be considered 'persuasive'. - Statutory versus constitutional interpretation- they have the same process but there are important differences. - Statutes are usually much more detailed and specific, much easier to amend or repeal, normally more recent than constitutional provisions, not all part of the same legal instrument, subject to a statute regulating their interpretation; interpretation act 2005. - The constitution is often necessarily more general, seems to distinguish ordinary policies from constitution fundamentals, includes basic doctrines of political and social theory as well as legal norms, rests on legitimacy of the people's decisions. - The literal interpretation of the constitution may be inappropriate in cases of doubt or ambiguity, then everyone agrees, you can look to the rest of the constitution for clarification, much of the constitution is very vague and general. - The harmonious interpretation of the constitution creates uncertainty and gives judges more discretion over how the constitution is interpreted. - Often reliance on the harmonious interpretation seems to be based mainly on the discomfort with the outcome of a literal interpretation. - The historical interpretation of the constitution often little evidence of what was intended or generally understood in 1937 or later. - 'Prevailing ideas' approach is well established in relation to fundamental rights - *O'Meara- was it unconstitutional to deny a man who was not married to his partner claim a widower's contributory pension for the sole reason that the couple had been not married to each other, based on article 40 yes.* - *By a 5 to 2 majority outcome could not also be reached by holding that the family referred to in article 41 included relationships not founded on marriage.* - Natural law- universally valid norms of individual and collective human conduct independent of and superior to positive law. - Irish judges never treated natural law as being particularly relevant to the separation of powers or other aspects of the institutions of state. - Since 1995, the supreme court has made it very plain that the constitution is not subordinate to natural law. As most it is one theory that might help interpreting some provisions. Tutorial 1- interpretating the constitution: --------------------------------------------- - *People (DPP) v O'Shea- legal issue is can the director of public prosecutions bring an appeal against verdicts of 'not guilty' recorded by the jury, at the direction of the judge in a criminal trial in the Central Criminal Court, in accordance with the constitution and other statutes. The issues turn, in part, on the interpretation of Article 34 of the constitution.* - \* The Constitution as the fundamental law of the State must be accepted, interpreted and construed according to the words which are used and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be looked at as a whole and not merely in parts, and where doubt or ambiguity exists, regard may be had to other provisions of the Constitution and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself.- this was the reasoning of judgements in this case, undertaking the literal meaning of the constitution.* - *!!!!! Heneghan v Minister for Housing, Planning and local government -- this case arises from the applicant's claim that Seanad Eireann has since 1979, or shortly thereafter, been composed in violation of the constitution. The provision of the constitution which he alleges has been thus breached, Article 18.4.2, was inserted in 1979 referendum. At the time of that referendum, it was suggested to the people that the proposed amendment would, if adopted, result in a change in the lectorate for the election of certain members of the Seanad. The anticipated change never occurred. Instead, the Seanad has been elected based on the provision of the Act- the Seanad Electoral (University Members0 Act 1937, that was passed forty-two years before the constitution was amended. Everything has proceeded since as if nothing had changed.* - *The respondents say nothing had to change. They contend that the effect of Article 18.4.2 was to afford the Oireachtas a power to change the electorate. The* applicant says this is wrong and that the effect of this article when properly read and understood, was to impose a duty on the Oireachtas to act. Because the Oireachtas failed to act in discharge of that obligation, the applicant argues, the relevant provision of the 1937 act is unconstitutional. - *Hogan J in his concurring judgement describes the drafting of those parts of Article 18.4, that were inserted in 1979 as 'hapless incoherent and confused'. As a result, the court must in this case confront the fundamental issues around how it should interpret an opaque constitutional provision of this kind and in particular, as to how it should negotiate the relationship between the literal meaning of words used in that provision, other constitutional articles.* - *Article 18.4 of the constitution, as originally enacted by the People, provided that three of the sixty members of Seanad Eireann would be elected by TCD, and that three would be elected by NUI. The system for electing candidates to these university seats was specified in the 1937 act.* - *The applicant a graduate of UL, challenged on a number of different grounds the constitutional validity and compatibility with the ECHR of various aspects of the process for the election of members of the Seanad. He claims that he was entitled as a matter of law to be an elector in respect of university panels. He said that the text of Article 18.4.2 of the constitution constructed either alone or in conjunction with a principle which he describes as that of 'equality in the electoral process' imposed a duty on the Oireachtas to legislate so as to extend the Seanad university franchise to include, at least, graduate of UL.* - *A historical interpretation of the constitution was unnecessary in this case, as there was no ambiguity.* Topic 4- Dail elections & the Seanad: -------------------------------------- - Court decisions: *Quinn v Waterford Corp- third level students living away from home during the term can choose where they register to vote, Kelly v Minister for the Environment- TDs and Senators standing for the Dail may not be treated more favourably for the Dail may not be treated more favourably, as regards limits on elections expenses, than non-incumbent candidates*. - Dail elections- who can vote- 18 years old, nationality, disqualified by law, law need not give actual opportunity to vote for: physically disabled, prisoners, those who have turned 18 within the previous year. - Dail elections- who can be elected- 21, Irish only, not disabled or incapacitated by law. - Nomination -- to get on ballot paper you must pay €500 deposit or be nominated by a registered political party or get the written assent of 30 voters. - Secret ballot- absolutely secret to voter, alternative arrangements have been considered necessary for voters with visual impairments, those who are incapacitated and those who are illiterate. Provision for voters with visual impairments has been gradually improved, secrecy turned out to be a major problem for electronic voting. - TDs are elected from constituencies; the total number of TDs must be within a range defined by article 16.2.2. - Political finance- candidates' spending at election time is limited. Parties' spending is limited to what candidates agree to share with them from their permitted amounts. Political parties get quarterly public funding, some candidates are reimbursed part of their election expenses from public funds, donations are capped and must be declared. - Seanad Eireann- 49 elected members and 11 nominated members, 43 are supposed to be vocational in nature, 6 university senators. Topic 5- Legislative power: ---------------------------- - No other legislature authority has the power to make laws for the state. Provisions may be however made by law for the creation or recognition of subordinate legislatures and for powers and functions of these legislatures. - Subordinate legislatures- these do not exist and never existed under the constitution of Ireland. - What does 'make laws' mean- ministers and other persons and bodies can validly make rules and regulations under powers conferred upon them by the Oireachtas, this is not because of the 'however' provision made in article 15.2.2. - A subordinate legislature would be able to make laws for the state. Ministers and other delegates can make rules and regulations but only if doing so cannot be characterised as 'making laws for the state'. - Regulatory versus administrative- exercise of delegated power could be 'only making laws for the state' if it involved making rules or regulations of some kind. Power that affects just individual cases is administrative. - Ultra vires- act by the person or body outside scope of legal power conferred by higher authority. If the Oireachtas simply has not given a minister a power to do something and he/she, does it, that will be an ultra vires on his/her part. - Invalid having regard to the provisions of the constitution- act when the constitution- act the constitution doesn't allow anyone at all, or anyone other than a specified authority, to do. - How do vires and constitutional validity relate to each other- if the Oireachtas breaches article 15.2.1 then, necessarily, whatever the delegate purports do under that 'enactment' is ultra vires, because the enabling provision is constitutionally invalid. If a person purports to exercise a statutory power that was not given to them that does not necessarily raise any constitutional law issue. - Henry VIII clauses- gives ministers or other delegates power to attend or otherwise alter the Act by which the power is given or other primary legislation. In Ireland such powers cannot be validly created by the Oireachtas. - City view press v AnCo- *article 15.2.1 limits what kind if powers the Oireachtas may choose to give away, supreme court acknowledged a legitimate need to delegate man decisions to minsters and other bodies, the retention of some control by the Dail and Seanad over the exercise of such powers did not mean that the conferral of the power was automatically valid, a law is not invalid if it contains sufficient principles and policies to enable one to say that what the delegate is doing is merely giving effect to those.* - Obiter dictum- that is 'the test' for the validity of any Act that is challenged on the basis that it is repugnant to article 15.2.1. Tutorial 2- legislative power: ------------------------------- - *McGowan v Labour Court*- *the appellants alleged electrical contractors, were affected by a Registered Employment Agreement (REA) registered by the Labour Court in 1990 under part III of the Industrial Relations Act 1946. Several challenges were made to the validity of the REA, leading to this appeal. The issues where: whether part III of the industrial relations act 1946, allowing private parties to make law in relations to employment terms, is compatible with article 15.2.1 of the Constitution of Ireland. Whether the labour court's power to register agreements under section 27 is constitutionally valid.* - *The supreme court held that the provisions of part III of the industrial relations act are invalid considering article 15.2.1 of the constitution.* - *Part III of that act allowed private parties to make laws concerning employment terms, without clear statutory guidance or limitations. This was deemed incompatible with the exclusive law-making power vested in the Oireachtas under the constitution. The court noted that the power of the labour court to register agreements lacked express guidance on how to exercise this power, raising concerns about the lack of constitutional boundaries and oversight in law making process*. *The court thus allowed the appeal and declared the provision of part III of the act are invalid.* - *Naisiunta leictreach contraitheoir Eireann v Labour court- judicial review of Sectoral Employment order under the industrial relations act 2015. The labour court, established by the industrial relations act, had the power to register an employment agreement if it was satisfied that the parties were 'substantially representative' of such workers and employers. In 2013, the court had to consider a constitutional challenge to REA and held that wife powers vested in the labour court to make REAs offended against article 15.2.1. The industrial relations act 2015 sought to address the deficiencies found in the 1946 act. The issue was whether the labour court acted ultra vires in appending and adopting details of the construction workers' pension scheme as part of its recommendation. The court held that the labour court failed in its statutory duty under section 16 to give reasons for its decisions to make a recommendation. The court would uphold the high court judgment on the ECHR issues, the statutory vires issue and in relation to the adoption of the CWPS in the SEO, for the reasons set out. The matter would be remitted to a different panel of the labour court to prepare and furnish a recommendation giving reasons, in accordance with the statute.* - *Conway v An Bord Pleanála- the legal issue is whether section 28 of the planning and development act 2000 invalid under article 15.2 of the constitution due to the impermissible delegation of legislative power. Whether the delegation of power to the minister constitutes a breach of article 15.2 of the constitution regarding law-making function of the Oireachtas. The supreme court unanimously dismissed the appeal. Hogan J interpreted that section 28 is not consistent with article 28. The court collectively rejected the argument that the conferral of power to the minister constituted an impermissible delegation of legislative authority.* Topic 6- legislative power concluded: -------------------------------------- - Parliamentary privilege- all reports and publications of either House and utterance made in either House wherever published are privileged. Members are not amendable to any court or other authority other than the house itself in respect of any utterance in either house. Each house shall have the power to ensure freedom of debate, protect its official documents and the private papers of its members and to protect itself and its members against attempted interference, molestation or corruption. - No legal proceedings can be taken against a member of an utterance in the house, only the house can compel a member to reveal a source of information in an utterance. - Liability of Dail, Seanad or committee- members' non-amenability doesn't mean they are immune from review of the legality of their actions. Reviewing the actions of the institution cannot be made into a means of making members indirectly amenable for utterances, this also means that the institution cannot be liable in damages for any harm caused by the utterances of members. Topic 7- administration of justice: ------------------------------------ - Justice shall be administered- only judges can administrate justice, constitution does not define this, potential problems emerged before 1937 thus article 37. - **The five point test for the administration of justice set out in McDonald v Bord na gCon:** - A dispute or controversy as to the existence of legal rights or a violation of the law. - The determination or ascertainment of the rights to parties or the imposition of liabilities or the infliction of a penalty. - The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties. - The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgement. - The making of an order by the court which, as a matter of history, is an order characteristic of courts in this country. - The making of an order by the court which as a matter of history is an order characteristic of courts in this country. One area the courts stressed the importance of historical context. - *Zalewski v adjudication offices & ors- The appeal concerns the requisite locus standi to pursue a challenge to the constitutionality of certain sections of the Workplace Relations Act 2015 and the Unfair Dismissals act 1977.* - *The challenge is in reliance on articles 34.1 and 37.1 and article 40 of the constitution. * - *The appellant was dismissed from his employment with the notice party. He made a claim of unfair dismissals under the 1977 act and a claim for non-payment of money in lieu of notice under the payment of wages act 1991 as amended. * - *An injunction was sought prohibiting any further steps being taken in the appeal and a claim for damages was included.* - *The central issues raised to the supreme court are whether the process amounts to the administration of justice required under the constitution to be administered in court and whether the statutory framework adequately vindicates a claimant's rights under the constitution. * - *Using the 5-point test both the high court and the supreme court accepted that the determination of the two relevant claims exhibited the first tree characteristics but disputed whether the fourth and fifth characteristics were fulfilled. * - *Simons J concluded that the hearing and determination of a claim for unfair dismissal and for the payment of wages in lieu of notice fulfils the fifth limb of the test in McDonald. * - *The fourth limb of the test was said to be not satisfied by the high court as the executive power of the state may be called in to aid in such enforcement.* - *The majority concluded that article 37 does not define either the area of administration of justice or the subset covered by this saver, it was in their view, clear that justice may be administered by bodies which are not courts and by the persons other than judges in non-criminal cases. However, such exercise must constitute the exercise of limited functions and powers of judicial nature.* - *Contrasting articles 37 and article 34.4 and the local and limited jurisdiction of courts and excluding from limited a court\'s jurisdiction for the purposes of article 34, is not persuasive.  * - *The majority concluded that the WRC is exercising limited powers and functions of judicial nature, which exercise of power is therefore covered by article 37 and does not therefore offend the constitution.* - *However, issues were found with the 2015 Act that are incompatible with the constitution. These issues are that the proceedings before the adjudication officer cannot be heard in public, there is no possibility to take evidence on oath and consequently no penalty for false evidence, and lastly, there is no express provision for cross examination. * - *A bill was subsequently proposed to make several legislative amendments considering the judgement of the supreme court in Zalewski. Certain amendments are constitutionally necessary, and others are proposed in response to comments made by the court. Public hearings are required, swearing on oath before giving evidence and punishments if found to be lying on the stand*. - Locus standi- to challenge something, you must plausibly show that it affects your rights or interests in some real way or is likely to do so. Topic 8- Judicial independence: -------------------------------- - Judicial independence- not three equidistant powers, separation is largely bipartite: legislative-executive v judicial. Constitution allows politicians to appoint and remove judges. - Conception of judicial independence- to be protected against the legislature and the executive, intrinsic to the rule of law, not for the benefit of the judges themselves, but for the people. - *Delaney v PIAB- Bridget tripped on a footpath, personal injuries were passed by the judicial council, the guidelines were given legal effect through the family leave and miscellaneous provisions act. The issue was whether the personal injury guidelines adopted by the judicial council are constitutional, whether the PIAB acted lawfully in applying the guidelines to the appellant's case. Whether section 7 of the judicial council act is unconstitutional. The court held that the section 7 was unconstitutional, however they saw no other problem.* - Cultural dimension- traditionally strong cultural norms around judicial independence, close and mutually supportive relationship between lawyers and judges. - The constitution makes no specific provisions as to how the courts are administered. - The missing 22^nd^ amendment- a body could be established by law to investigate whether a judge should be removed from office. - The president appoints all judges, on the advice of the government, the minister for justice and equality may request judicial appointments advisory board to make recommendations for appointment, the government shall firstly consider the persons recommended. Tutorial 3- judicial power: ---------------------------- - Zalewski case above was the only case discussed in the tutorial! Topic 9-executive power and prerogative: ----------------------------------------- - Executive power of the state is vested in the government not the president. - Most of the government's day to day powers is given to it by legislation, or the prospect that it can get the legislation it wants passed. - Dail Eireann- chooses Taoiseach and approves and appoints other ministers, holds the government responsible for the departments it administers, can require the government to resign. - Government/Taoiseach- chooses when to hold a general election, unless a Dail majority and the president jointly block this, can use the money message procedure to block certain bills. - International dimension- government exercises the executive power of the state in external relations. - Prerogative- in the Uk the crown was and is the personification of the state, this was the position in Ireland when it was part of the Uk. - It is an inherent attribute of a sovereign state that it can control the entry to and presence in its territory of persons who are not citizens. - In general, the government cannot take away anyone's rights, impose any new liabilities, confer any legal immunity. Topic 10- presidents and international relations: -------------------------------------------------- - **The president of Ireland:** - Almost entirely symbolic - Directly elected by the people - For many years a largely ceremonial position - Since 1990 it has become a focus symbolism with meaning - **Franchise and eligibility:** - Only Irish citizens can vote - The people emphatically rejected the idea that the age of eligibility be reduced to 21 - The government proposes to extend the right to vote to every Irish citizen anywhere in the world- this won\'t happen in time for the 2025 election. - **Nomination:** - Until 1997, 2 largest parties had an oligopoly on nominating candidates - They agreed on five occasions on a candidate, meaning no election was held. - After 1997, practical routes for other candidates to be nominated have opened up - McAleese was re-elected unopposed in 2004 - Heat has gone out of reforming the nomination process. - **Terms and tenure:** - Seven years is relatively long term - The president is limited to two terms - A very high level of political consensus is needed to remove a president - The presidential commission gives an idea of what kind of office the presidency was intended to be. - **Powers and functions:** - The default is that the president merely rubber stamps decisions taken elsewhere - Where the president exercises independent judgement is in relation to: - Referring Bills to the Supreme Court - Refusing a Taoiseach a dissolution - Resolving conflicts between the Dail and Seanad. - Up to 1990 it was generally expected that the president should be a symbol of national unity and political consensus and not much more. - Mary Robinson began a new trend, of the president subtly signalling support for certain values and ideas not universally shared. - From 1938 to 1949 the president had no role to the external to the state- the British King performed these functions. - Republic of Ireland Act 1948 transferred these functions to the president of Ireland. - There is a double lock on the president here: - As a power conferred by law - Article 5 imposes as a general limitation on the governments conduct of foreign policy. - **Dualist system:** - Article 29.6 no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. - Rights and obligations created by a treaty exist only in international law, unless and until a law passed by the Oireachtas to incorporate them into the domestic law of the state. - It is the Oireachtas that decides when and how far and under what conditions this should occur  - **European communities Act 1972**: - Each minister has an apparently wide power to make regulations giving effect to EU law. - Degree of choice this gives is determined by relevant EU law. - If principles and policies are required to guide the use of s 3 these are in the relevant EU measure. - S 3 was amended in 2007 to allow for the creation of indictable offences within limits - Seemingly no special principles relating to that - The Supreme Court had the chance to reconsider this in Gearty v DPP and did not. Tutorial 4- Executive Power: ---------------------------- - *Webb v Ireland- the plaintiffs, who are father and son, went to a place in Tipperary, which consisted of an island of pastureland surrounded by a very large area of bog. Each of them had a metal detector, they searched for metal objects which might be buried in the lands. They did not seek permission from the owners of the lands before entering on them. They discovered some objects and brought them back to their house and having consulted an archaeologist as to their importance and their solicitor. The next day, one of the plaintiffs delivered the articles the following day to the National Museum, bringing with him a letter written by his solicitor. The director of the museum recognised their value, and he thought the items were treasure trove. The defendants allege that the landowner had a title to any chattel found in the land against any finder of it, under any circumstances. Treasure trove is a creature of the common law, it belonged to the crown. The right of the crown to the possession and ownership of such treasure trove was subject always to the obligation to restore it or its value to the 'true owner' if he could be found. The judges found that treasure trove is a royalty or franchise vested in the State by virtue of its sovereign nature and having reached the further conclusion that there is associated with that a right of the plaintiffs in the particular circumstances of this case to a reasonable reward, found they are dealing with a situation in which a finder has got a right to a reward for which the law has not yet provided a precise method of assessment. While it may be contended that the plaintiff's were merely complying with law when they brought the Hoard to the attention of the National Museum, for the reasons set out in the judgement, they are entitled to rely on an expectation that the State would make to them a substantial reward and they are entitled to enforce this in the courts.* - *Barlow v Minister for Agriculture, Food and the Marine- as part of longstanding practice, fishing vessels registered in the North of Ireland were permitted to fish for mussels. Concerns were raised by the plaintiffs as to the impact of the activities of these vessels. The high court had rejected the plaintiffs' claim that the activities of the vessels offended the constitution, and further stated that mussel seed was a natural resource for the purposes of article 10. The matter before the Supreme court. The matter before the court was a narrow o\[point but one of importance. Having considered the historical background to the matter, as well as the legislative and case law authorities, the court was persuaded that the fishing of mussels by the vessels in question offended the constitution insofar as the legislation required to permit such fishing has noy been enacted. The court declined to give opinion on the merits of the plaintiff's general objections to the fishing.* - *Friends of the Irish Environment v Government of Ireland- the appellants, FIE, contended that the first respondent, the Government of Ireland, in a statutory plan for tackling climate change, failed adequately to vindicate rights which were said to be guaranteed by either or both constitution and the European Convention on human rights (ECHR). It was also said that the plan is ultra vires the relevant legislation. On the basis proceedings were brought in the High court seeking a range of reliefs. FIE sought leave to appeal directly to the Supreme Court. Held by Clarke CJ, having considered the argument put forward by FIE to the effect that the Plan does not comply with its legislative remit under the Climate action and low carbon development act 2015, and is, therefore, ultra vires, contrary to the submissions made on behalf of the government, FIE should be entitled to pursue wider range of argument on their issue addressed in their written submissions. Clarke CJ concluded that the issues are justiciable and do not amount to an impressible impingement by the courts into areas of policy. Clarke CJ also concluded that the 2015 Act, and in particular s.4 requires a sufficient level of specificity in the measures identified in a compliant plan that are required to meet the NTO by 2050 so that a reasonable and interested person could make a judgement both as to whether the plan in question is realistic and as to whether they agree with the policy options for achieving the NTO by 2050.* - *Burke v Minister for Education- the leaving certificate on the 11^th^ of March, the WTO declared COVID-19 as a pandemic, three months before the exams were scheduled to take place. The Department of education and skills published 'a guide to calculated grades for leaving certificate students 2020' on the same day, outlining the scheme to be implemented. Under the scheme, teachers were required to provide estimated percentage marks for their students, which would be standardized by the Department. However, there were conflict of interest provisions in place that prevented close relatives, such as parents, from providing estimated marks for their own children. Elijah Burke and Naomi Power were among a tiny minority who were caused a detriment by reason of its cancellation. Article 42.1 provides a right to the family to be the 'primary and natural educator of the child'. The government decision to put of the leaving certificate and replace it with predicted grades was a legitimate exercise of power conferred by the constitution. However, the scheme inadvertently disregarded the rights of home-schooled students under the constitution, leaving them with not available entry to third level education.*