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Unconstitutional Legislation and Decisions

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The High Court in Ireland has a power or "jurisdiction" called "judicial review". Judicial review is a way for the High Court to supervise the Oireachtas (Irish Parliament) to make sure that legislation does not conflict with the Constitution (pdf) (or 'Basic Law' of Ireland). It is also a way for the High Court to supervise the lower courts, tribunals and other bodies to ensure that they make their decisions properly.

Rules

Judicial Review of Legislation

The High Court has the power or "jurisdiction" to cancel any law or part of any law that is repugnant to the Constitution. This means that if you believe that a law breaches the Constitution or your fundamental rights, you may bring "judicial review" proceedings in the High Court.

In order to bring judicial review proceedings, you must simply show that you have "sufficient interest" in the proceedings, i.e., that the legislation affects you in some real way. You must also show that you have an arguable case, i.e., that your case has grounds. Once you have passed this preliminary test, the High Court will allow you to apply for judicial review.

The High Court will then examine the legislation in question and decide whether or not it conflicts with the Constitution. If it decides that the legislation does conflict with the Constitution, it may annul or cancel the law or the part of it that is unconstitutional.

The Irish President also has the power to start judicial review proceedings. Under the Constitution, if he or she considers that a new Bill might raise constitutional problems, he or she may refer the Bill to the Supreme Court. The Supreme Court will then examine the Bill and hear arguments on both sides to decide whether or not the Bill is constitutional and can be passed as legislation.

Judicial Review of Public Decisions

Public decisions may be judicially reviewed by the High Court to determine whether they are unconstitutional or illegal. Some examples of public decisions include:

  • Decisions of the District and Circuit Courts
  • Inquest verdicts
  • Decisions of tribunals
  • Deductions from army pensions
  • Discharge of a member of the defence forces
  • Disqualification from receiving social welfare payments
  • Refusals of an Irish passport, marriage certificate, or visa
  • Decisions to deport asylum-seekers
  • Decisions of An Bord Pleanala relating to planning permission
  • Decisions of the Legal Aid Board and the Law Society.

The basic principles of public decision-making are:

  • The decision-maker must have authority to make the decision that affects you. If the decision-maker has the authority to make the decision, it must not go beyond the limits of its authority.
  • You are entitled to fair procedure in how the decision is reached. This means that the decision-maker must not be biased and the decision-maker must give you a fair hearing. You must be given an adequate opportunity to present your case. You must be informed of the matter and you must be given a chance to comment on the material put forward by the other side.

If the decision-maker does not have authority or does not give you fair procedure, you may bring judicial review proceedings in the High Court to challenge the decision. You must show that you have "sufficient interest" in the proceedings, i.e., that you were affected in some way by the decision you are challenging. You must also show that you have an arguable case, i.e., that your case has grounds.

The High Court will examine the decision and how it was reached and will decide whether or not it was unconstitutional or illegal. The High Court may then quash or cancel the decision.

How to apply

If you wish to begin judicial review proceedings, you should contact a solicitor who will in turn brief a barrister to draft the papers for the case. It is also possible for you to represent yourself if you wish to keep your legal costs down.

There is no fixed rate of charges for legal fees in Ireland so you should obtain some quotes before deciding on legal representation. Your solicitor must advise you in writing of the fees you will be charged for his/her services. If it is not possible to give you a definite sum, he/she must estimate a sum or at the very least describe the basis upon which charges or fees will be calculated.

Last Updated: 18/4/2008
Subject Terms: constitution of ireland

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Disclaimer: This document contains general information which may not address your particular circumstances; you may need more detailed information and/or legal advice.