constitutional law - nation and state notes

Question 1

what does article 1 set out?

Answer 1

Article 1 sets out the sovereignty of the Irish state in terms of an inalienable, indefeasible, and sovereign right to self-government and international relations.

Question 2

what do hogan and whyte state?

Answer 2

Hogan and Whyte state that this constitution was based on the theory of nationalism.

Question 3

Discuss McGimpsey v Ireland

Answer 3

This formulation also informed the jurisprudence of the court in McGimpsey v Ireland, where the claim to the six counties of Northern Ireland under the provision of the old article 2 and 3 of the constitution was determined to be a right rather than a political claim.

Question 4

Discuss sovereignty in Ireland

Answer 4

Sovereignty is an important part of international law and statehood in that country is deemed to
have the ability to give itself and be independent and equal to other countries.

Question 5

discuss article 1 of the constitution

Answer 5

Article 1 clearly signals the independence of the nation in both its internal and external governance. It is a clear signal to the history of the country that it is now independent and will be driven by its own cultural traditions.

Question 6

Discuss the historical significance of the constitution

Answer 6

Article 2:
The national territory consists of the whole island of Ireland, its islands, and the territorial sea

Question 7

Discuss article 3 of the constitution

Answer 7

Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by the constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that parliament shall have the like area and extent of application as the law of saorstát Éireann and the like extra-territorial effect.”

Question 8

what was held in Mcgimpsey v Ireland

Answer 8

Considering that the 6 counties of ulster which still compromise of Northern Ireland was under the direct control of the United Kingdom, in McGimpsey v Ireland, the supreme court held that the former art.3 was a claim as of right and not just a political claim

Question 9

anglo-irish agreement of 1985

Answer 9

This case was taken on the basis of the Anglo-Irish agreement of 1985 which included a provision affirming the existing status of Northern Ireland and that any change to its position would only happen with the consent of the majority of the population of Northern Ireland.

Question 10

The Anglo-Irish Agreement 1985

Answer 10

The agreement also included provisions to establish an intergovernmental conference and to allow the Irish government to put forward its views on devolution and major legislative and policy proposals within Northern Ireland in relation to the interest of the minority community in Northern
Ireland.

Question 11

The Anglo Irish Agreement 1985

Answer 11

The agreement also included other provisions related to security and legal matters, cross borders co-operation and economic development.

Question 12

The Anglo-Irish Agreement 1985

Answer 12

The plaintiff argued that this agreement was contrary to art.2 and art.3 as it prevented the state from enforcing its right to Northern Ireland under international law. This argument was rejected by the court, but the judgement is notable in that it interprets the claim to Northern Ireland as a right.

Question 13

what did the court say?

Answer 13

The court accepted that both governments of the UK and Ireland have an acknowledged concern in relation to the affairs of Northern Ireland and it “acknowledges that the government of Ireland may make representations, put forward proposals and try to influence the evolution of the peace process, Ireland agreed to relinquish its claim on Northern Ireland and hence this proposal was agreed to by the population by means of referendum.

Question 14

Discuss the Good Friday Agreement?

Answer 14

Under article 4 of the good Friday agreement, the Irish government agreed to amend articles 2 and
3 of the constitution. The current provisions of these articles reflect the agreement of the parties.

Question 15

The Good Friday Agreement:

Answer 15

As part of the agreement, the Irish government also committed to adding this agreement to the international relations section of the constitution as per amendment of art.29.7. The provisions of the Good Friday Agreement also instituted the Northern Irish
Assembly in Stormont, the importance of the baseline standard of the European Convention on Human Rights across Ireland, Northern Ireland and the United Kingdom, and the Northern Irish Executive.

Question 16

Discuss the councils that were established due to the Good Friday Agreement?

Answer 16

To ensure joint supervision of the northern Irish political bodies through the good Friday agreement, the document also established the north/south ministerial council, the British-Irish council, and the British-Irish intergovernmental conference.

Question 16

Discuss the councils that were established due to the Good Friday Agreement?

Answer 16

To ensure joint supervision of the northern Irish political bodies through the good Friday agreement, the document also established the north/south ministerial council, the British-Irish council, and the British-Irish intergovernmental conference.

Question 17

The Sunningdale agreement 1985

Answer 17

Such moves were incorporated in the Sunningdale agreement 1973 and the Anglo-Irish agreement of 1985.The good Friday agreement contains provisions for remedial action where difficulties arise which include consultation with all parties and the two governments.

Question 18

The current approach and challenges

Answer 18

The original article 2 and article 3 were replaced with article 2 which based the nation on nationality, which was to be subject to qualification in law, and was altered by the 27th amendment of the constitution in 2004.

Question 19

The Good Friday Agreement:

Answer 19

The post-Good Friday agreement version included the jus soli claim to citizenship.

Question 20

There have been two main consequences stemming from the new formulation:

Answer 20

1) citizenship
2) the principle of re-integration

Question 21

discuss the re-integration of Europe:

Answer 21

The legal agreement between the UK government and the Irish government specifically includes a mechanism for the re-integration Of Northern Ireland into Ireland as it recognised
that it is for the people on the island of Ireland to exercise their right of self-determination on the basis of consent “freely and concurrently given, North and south to bring about a
united Ireland” where a “substantial section of the people in Northern Ireland share the legitimate wish of a majority of the people”.

Question 22

Democracy in Ireland

Answer 22

Article 5 declares Ireland to be a “sovereign, independent, democratic state”

Question 23

De Búrca v Attorney General:

Answer 23

It was stated in de Búrca v Attorney General, “a democracy is a form of government in which the sovereign power resides in the people as a whole and is exercised by the people either directly or through their elected representatives. This obviously does not mean that every citizen has the right to take part personally in the government of the country”.

Question 24

Discuss Article 6:

Answer 24

Article 6 deals with the source of power of the Irish nation

Question 25

Article 6:

Answer 25

Even though it mentions the separation of powers theory in the constitution, where power is broken up between the legislature, executive, and judiciary, it places the citizens at the heart of the democratic process.

Question 26

Article 6:

Answer 26

It states that all power is derived under God from the people whose right it is to designate the rulers of the state and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

Answer 27

The right is also qualified in terms of the legitimate exercised of power by stating that they
are only exercisable “by or on the authority of the organs of state established by the
constitution”
- This provision was tested in Byrne v Ireland, in which the plaintiff sought to sue the state for
personal injuries caused by roadworks carried out by state employees

Question 28

Discuss article 5 of the constitution:

Answer 28

In the High Court, it was ruled that the sovereignty of the state from the provisions of article
5 did not allow for the state to be sued in its own courts.
- However, on appeal to the supreme court, the state was subject to the constitution and
therefore the subject to the people and as the courts had a constitutional duty to enforce
the constitution, the plaintiff could assert her rights against the state through judiciary.

Question 29

Article 6 of the constitution:

Answer 29

The constitutional interpretation of the role of the citizen as envisaged in art.6.1 has rested between the realm of political theory and secondary judicial argument.

Question 30

Article 6 of the Irish constitution:

Answer 30

Pursuant to McKenna v And Taoiseach, Coughlan v Broadcasting Complaints Commission and Doherty v Referendum Commission, the recent consideration of the role has been interpreted as a postscript to solidify the boundaries of the organs of government regarding referendum communications. However, the constitutional; phasing pursuant to art.6.1 has clearly placed the citizen at the heart of policy debates.

Question 31

Crotty v An Taoiseach explained:

Answer 31

The original consideration of the citizen and their role in Irish democracy was to arise in the case of Crotty v An Taoiseach.- In the High Court, the judge tried to balance the constitutional provision relating to the state in art.1, the role of the citizen in art.6.1 and the role of legislature in art.15 along with
international relations pursuant to art 29.4.1.

Question 32

what did the court say:

Answer 32

On the final appeal aspect, the court held that the constitution only laid down three
methods:
1) general elections under article 16
2) article 27 referral and general referendum to amend the provisions of the constitution
right to obtain a referendum

Question 33

Sinnott v Minister for education:

Answer 33

In Sinnott v Minister for Education, the court stated that the obligation to ensure that the constitutional duty of the state is fulfilled lies in the first instance with the relevant organs of
government referred to in article 6 of the constitution