Cases- administration of justice

Question 1

• it was unconstitutional to give the power to strike off a solicitor to a committee of the Incorporated Law Society of Ireland, instead of a judge (as had previously been the case.)
• not a limited function: far-reaching effect and importance
• criticized decision -Ever since, there have been attempts to limit the scope of that ruling

Answer 1

Re Solicitors Act 1954

Question 2

administration of justice has these characteristic features:
1, a dispute or controversy as to the existence of legal rights or a violation of the law;
2, the determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
3, the final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
4, 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 judgment;
5, the making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.
- McDonald: Kenny J in HC thought all 5 were present and powers were not limited; Supreme Court found none were- section 47 was constitutional

Answer 2

McDonald v Bord na gCon

Question 3

• At certain points during the COVID-19 pandemic, travellers to Ireland from certain designated countries were legally required to undergo mandatory hotel quarantine for fourteen days - Such a person could apply (repeatedly) for a review of this mandatory quarantine to a designated appeals officer, whose decision would determine whether or not he or she was released
• not a judicial function, even if it was it is limited - not the same as bail
• applies Zalewski principles- mandatory quaranteen not a judicial power

Answer 3

McGrath & Mulreany v DPP

Question 4

• deprivation of a naturalised citizen of their Irish citizenship, and raised two grounds of appeal
• revocation of citizenship was not an aspect of the judicial power, and so constitutionally reserved to the judicial branch, but rather an executive power, correctly exercised by a member of the government, but subject to judicial review
• (by implication) the severity of the impact of a decision on a person, including that person’s constitutional rights, is not a factor in deciding whether an administration of justice is involved
• the court found that the extant process breached fair procedures, as the minister oversaw all of the raising of a bid to revoke citizenship, any challenges to this, and the final decision on the matter
• SC held pro-plaintiff

Answer 4

Damache v Minister for Justice

Question 5

• adopted a more “impressionistic/normative” approach, considering whether the process, in its entirety, should be carried out by an Article 34 court - McDonald not a binding test- most important: because the process involved the binding determination of legal disputes between private parties
• This shift suggests a less rigid interpretation of Article 34.1 and potentially a greater acceptance of adjudicative functions being performed by non-judicial bodies
• ‘limited’ should be understood in terms of jurisdiction, aligning Article 37.1 with the concept of ‘limited jurisdiction’ used for lower courts in Article 34.3.4 - different understanding from Re Solicitors Act 1954
• need for these bodies to uphold the principles of fair procedure, mirroring the standards of Article 34 courts
• hearings before an adjudication officer in public, administration of oaths to witnesses and the right to cross-examine them
• the 5 step test features of importance rather than establishing a statutory checklist
• ‘institutional pluralism’, whereby courts defer to the legislature’s design of non-judicial processes, as long as those designs uphold the principles of justice
• minority: expressed concerns about the reliance on judicial review as the primary safeguard for the administration of justice in non-judicial bodies
• overall positive development

Answer 5

Zalewski v Adjudication Officer

Question 6

• HC: the guidelines in relation to the assessment of damages for personal injuries issued by the Judicial Council were not a violation of judicial independence, judges are suitable, could depart
• SC: by a 4-3 majority found that section 7(2)(g) of the Judicial Council Act 2019 was an unconstitutional violation of the principle of institutional judicial independence, because it “conscripted” all judges, as members of the Judicial Council, into performing the function of adopting the personal injuries damages guidelines and this impermissibly blurred the distinction between the legislative and judicial branches of government, only permissible if voluntary and Oireachtas then enacted - Oireachtas then enacted it into law, so by Judicial Council unconstitutional but now apply

Answer 6

Delaney v Personal Injuries Assessment Board

Question 7

• SC: majority held that Gov and Dáil could not ratify CETA under current law, if changes made to Arbitration Act 2010, it could be ratified without breaching law
• issue: special tribunal which could administer justice- not necessary for EU membership

Answer 7

Costello v Ireland

Question 8

• One week before the 1995 divorce referendum, the Supreme Court had ruled that the Government’s practice of funding the yes side of the campaign using public funds (500 000 euros) was unconstitutional.
• not an exercise of executive power- but public funds
• oposed to concept of equality and other HR in democratic country
• courts can only interfere when there is clear disregard of by the government

Answer 8

McKenna v An Taoiseach (No 2)

Question 9

• taxation of judicial pay
• did not infringe judicial independence

Answer 9

O’Byrne v Minister for Finance

Question 10

• Circuit Court judge- downloading child pornography - acquitted (zprošten viny) by trial judge- still Oireachtas wanted to investigate- Curtin challenged the procedure of creating a committee to collect evidence
• that challenge was unsuccessful as specific procedure is not in the Constitution- should be determined by the Oireachtas (also presumption of constitutionality)- this is unlike the impeachment of the President which is very detailed - both HC and SC agreed
  
  • SC- due to separation of powers, courts only interfere if there is clear disregard
• Curtin was entitled to fair procedures both in the committee and before the whole House - two procedures and guarantee of legal representative
• There should be two separate final votes in each House: on stated misbehavior and on removal
  
  • two votes on two separate questions:
    
    • Stated misbehavior
    • removal from office
• he retired before those questions were resolved

Answer 10

Curtin v Dáil Éireann

Question 11

• Judicial Appointments Commission Act 2023 - new draft- entered into Act in 2025
• referred by President Higgins for judicial review under Art 26 - everything found Constitutional
• Judicial Appointments Commission Bill 2017- lapsed with dissolution of Dáil
• JAC will be better than current JAAB (Judicial Apointment Advisory Board)

Answer 11

Re Judicial Appointments Commission Bill 2022