Irish Legal System - Topic 2 PDF

IRISH LEGAL SYSTEM Topic 2 Sources of Law Sources of Law 4 Major Primary Sources of Law in Ireland European Union Law Bunreacht na hÉireann / Irish Constitution Legislation Irish Case Law / Common Law sources Sources of Law A const...

IRISH LEGAL SYSTEM Topic 2 Sources of Law Sources of Law 4 Major Primary Sources of Law in Ireland European Union Law Bunreacht na hÉireann / Irish Constitution Legislation Irish Case Law / Common Law sources Sources of Law A constitution is typically the supreme source of law in the state. Highest-ranking domestic source of law. Sets out how the country is run and guarantees fundamental rights. Fundamental Constitutional Rights Examples Art. 41.3.1 – State will guard and protect marriage Art. 41.4 – right to marry someone irrespective of their sex – recent Constitutional amendment Art. 42.4 – right to free primary education Art. 43.1 – right to own private property Art. 44.2.1 – freedom of conscience and religion Art. 34 – court cases must be held in public save in limited and special cases Fundamental constitutional rights Fundamental Rights not absolute – can be limited in the interests of the common good or public order for example: 1. Personal liberty – but you can be arrested and imprisoned 2. House is inviolable – but can be entered with search warrant 3. Right to own property – but you can be taxed – property can be compulsorily acquired Unenumerated Rights – fundamental rights which are not specified in the Constitution eg. right to marry, right to bodily integrity, right to earn a livelihood The Judges can identify these unspecified rights through the interpretation of the words of the Constitution eg. Article 41.3 promises to guard the institution of marriage, by implication therefore, there is a constitutional right to marry Sources of Law The Irish Constitution 1922 Constitution – Free State Constitution 1937 Constitution – remains in force Ethos of the 1937 Constitution Key Influences Irish Language 50 Articles divided into sections and sub-sections Institutions of the State Fundamental Rights The Constitution is available online Sources of Law The Irish Constitution – Examples of Content Articles 2 and 3 – The National Territory – amended 1998 Article 15 – The Oireachtas Article 34 – The Courts Articles 40 to 44 – Enumerated Fundamental Rights Ryan v Attorney General (1965) – ‘unenumerated rights’ – rights which are not specifically listed in the Constitution The Judges can identify these unspecified rights through the interpretation of the words of the Constitution Examples of unenumerated rights – Article 40.3.1 personal rights includes privacy and bodily integrity Kennedy and Arnold v Ireland (1987), O’T v B (1998) Sources of Law The Irish Constitution Every piece of legislation made and every judicial decision must be in accordance with the Constitution. An individual can challenge a law which conflicts with the Constitution Declarations of Invalidity De Burca v Attorney General (1976) – Juries Act 1927 Articles 46 and 47 - Amendments to the Constitution Can only be amended by the people of Ireland in a Referendum. Revising the Constitution The Constitutional Convention Amendments to the Constitution of Ireland The Citizens' Assembly Sources of Law The Oireachtas – Dáil + Seanad + President Composition of the Oireachtas (Articles 15 – 27 Constitution) The Dáil - Articles 16 and 17 Election of TDs Duration of Dáil Functions of TDs The Government Taoiseach and Tánaiste Dáil privilege Role of the Ceann Comhairle Rules of the Dáil Sources of Law Seanad Éireann Sometimes referred to as the ‘upper house’ Composition Sources of Law Current Seanad Proposed Abolition – 32nd Amendment to the Constitution Arguments for and against abolition Arguments for and against reform Sources of Law The President Articles 12 to 14 Eligibility Election and term of office Nomination Functions of the President Ceremonial role Powers under the Constitution Powers which have never been used Removal from office Presidential Commission Council of State Sources of Law Primary Legislation Acts of the Oireachtas Also known as Statutes Power to make legislation conferred on Oireachtas by Article 15.2.1 of the Constitution The Legislative Process Drafting the Bill – Parliamentary Counsel Government/Private Members Bills Public/Private Bills Money Bills For examples of current Bills – see Oireachtas website Sources of Law The Legislative Process Before they become enforceable, laws enacted by the legislature are known as Bills - proposals for legislation which must go through a number of stages in the Oireachtas… First Stage – Bill is initiated Second Stage – General principles of the Bill are debated Third Stage – Committee Stage – Bill is examined section by section and amendments may be made Fourth Stage – Report Stage – amendments are considered Fifth Stage – Final Stage – Bill is passed by the House and sent to the other House Enactment – Bill is signed into law by the President Sources of Law The Legislative Process The Role of the President Article 26 References to the Supreme Court Article 27 Sources of Law Primary Legislation Form and important content of Acts/Statutes Language Current Statute Book – irishstatutebook.ie Sources and Influences on legislation Law Reform Commission Example of an Act – Data Protection Act 2018 How legislation is made Sources of Law Delegated or Secondary Legislation Law made by Government Departments or other delegated body Power must be delegated by an Act of the Oireachtas, i.e. via a Parent or Enabling Act Mainly enacted as Statutory Instruments (S.I.s) - Orders/Regulations/Schemes/Rules E.g. Commencement Order – activates an Act/Statute giving it force of law. Bye Laws – Local Authorities Sources of Law Delegated or Secondary Legislation Control by the Oireachtas Control by the Courts – Judicial Review and the principle of ‘ultra vires’ Volume of Delegated Legislation Advantages of Delegated Legislation Disadvantages of Delegated Legislation Sources of Law Statutory Interpretation Legislation cannot be altered by judges (Separation of Powers), but is interpreted by them Different Approaches/Theories: The Literal Rule – words given their ordinary meaning, Whitely v Chappell The Golden Rule – judges look for an alternative meaning to avoid an absurd or unjust result, Re Sigsworth The Mischief Rule – what mischief was the legislation enacted to prevent? How best can they interpret the word to give effect to that purpose?, Smith v Hughes Purposive/Schematic/Teleological Approach – combines Golden and Mischief Rules. Sources of Law Statutory Interpretation Cases Whitely v Chappel (1868) LR 4 QB 147 A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a dead man. Re Sigsworth 1 Ch 98 A son murdered his mother. She had not made a will. Under the statute setting the law on intestacy he was her sole issue and stood to inherit her entire estate Smith v Hughes 1 WLR 830 The defendants were prostitutes who had been charged under the Street Offences Act 1959 which made it an offence to solicit in a public place. The prostitutes were soliciting from private premises in windows or on balconies so could be seen by the public. Sources of Law Aids to Interpretation Intrinsic Aids – within the Act Explanatory Memorandum The Act itself Presumptions – e.g. presumption of Constitutionality, presumption against retrospective effect Rules of Language Ejusdem Generis Expressio Unius Nosciter a Socis Sources of Law Extrinsic Aids Material found outside of the Act Previous Acts Reports of Law Reform bodies Dictionaries and textbooks International treaties Sources of Law Judicial Precedent Common law legal system – relies heavily on case-law Judge made Law/Case Law/Binding Precedent Doctrine of Precedent/Stare Decisis To stand by what was decided Similar cases decided on the basis of the reasoning applied in previous similar cases – consistency The Ratio Decidendi – the reason for the decision which is binding in future cases Other persuasive authorities – not binding but can be helpful Decision of a lower court Decisions from other jurisdictions Dissenting judgments Sources of Law Judicial Precedent Hierarchy of Courts Higher/Superior Courts – more flexibility, can overrule decisions of lower courts Distinguishing previous cases – situation sufficiently different from that in a previously decided case “Like cases alike, different cases differently” Locating and understanding a decision Citation tells you where you will find the case Importance of Law Reports Advantages of Judicial Precedent Disadvantages of Judicial Precedent Sources of Law European Union Law Background to formation of the EU Treaty of Rome 1957 Original membership Irish membership of the EU – joined in 1973 Ireland agreed to be bound by decisions of the Court of Justice and to implement European legislation Required a referendum in 1972 - Third Amendment to the Constitution Article 29.4.6 of the Constitution – gives EU law force of law in Ireland Current membership of the European Union Sources of Law The Institutions of the European Union Who are the members and what do they do? The Council of the European Union The European Commission how it operates Commission explained The European Parliament The Court of Justice The European Council Sources of Law European Union Law The Primary Law – Treaties The Secondary Law – European Legislation Regulations Directives Decisions Recommendations and Opinions Secondary Law of the EU Regulations 1. Have general application (apply automatically to everyone) 2. Binding in its entirety 3. Directly applicable in all Member States without the need for further national implementation 4. Aim: to achieve uniformity in the laws of the Member States Example of a Regulation General Data Protection Regulation 2018 Types of legislation - European Union Secondary law of the EU Directives 1. Addressed to Member States , not individuals 2. Binding as to the result to be achieved – Member States may adopt their own method of implementation 3. Aim: to harmonise the laws of the Member States 4. Binding direction to the Member States to achieve a certain result Example of a Directive – Consumer Rights Directive 2011 Secondary Law of the EU Decisions 1. Directed at individual addressees (MSs or individuals) 2. Binding on those to whom they are addressed Recommendations & Opinions 1. Persuasive, not binding Questions 1.Write a note on fundamental human rights in the Irish Constitution 2.How does the Oireachtas make laws – what are the stages involved? 3.Explain the rules of statutory interpretation. 4.What are the advantages and disadvantages of judicial precedent? 5.Write a note on two of the main institutions of the EU 6.Write a note on the differences between EU Regulations and EU Directives. Sources of Law Additional Reading Áine Keenan: Chapter 1 and Chapter 29 Kennelly and Tully: Chapters 5 to 8 Byrne and McCutcheon: Chapters 2, and 12-16 Additional notes and links on Canvas