Locus Standi, Mootness, Justicability & Remedies Flashcards
what is the presumption of Constitutionality?
idea that legislation is PRESUMED constitutional until the contrary is proven
what is the double construction rule
If there is more than one reading open of a piece of legislation, one of which is Constitutional the other is not then the court is obliged to adopt the Constitutional reading. Where there is any choice it must be exercised in the legislatures favour.
what is deference?
This is the idea that the strength of the presumption will vary in different cases. The Courts are more willing to find that the legislature has acted constitutionally in certain areas over others e.g. Social and economic issues; Taxation; National security and Social Welfare.
mootness
Where a topic no longer requires debate because it has already been adjudicated on. The Courts repeatedly show their unwillingness to pronounce on Constitutionality of legislation if they do not have to. They demonstrate a preference to decide a case on non-constitutional grounds if possible i.e. on other areas of law.
what is the locus standi test ?
Cahill v Sutton- in order to be deemed to have standing to bring a case the court must be satisfied that the litigants “interests are adversely affected or are in real or imminent danger of being adversely affected by the Statute.” But in Cahill v Sutton the court also noted that the rule concerning standing could be relaxed in certain circumstances
- (i) where the person cannot assert their own rights adequately or in time or
(ii) provision is directed at a group which includes the challenger or with whom he shares a common interest.
what did the court note in Mohan v Ireland?
- The option of challenging legislation should not be taken lightly just because a person genuinely wishes to have a question determined by the courts ‘rather should only be taken when a person can show that they are adversely affected in reality’.
- Art 34.1 requires ‘a real case or controversy’ and that it is necessary to show ‘adverse effect’ which the court interpreted as “that the plaintiff is, or can plausibly claim to be, affected or likely to be affected in a real way.”
- The court rejected that the test in Cahill v Sutton supported a degree of compulsion- rather the effect on the plaintiff was the key.
- It summarised the Locus Standi test as “a threshold requirement designed to exclude those who have no real connection to the legislation which they seek to challenge…. The purpose of the rule is not to identify the person with the best claim and prevent anyone else from bringing a claim; it is just to exclude those who have no possible interest, and no claim to justify having the rule relaxed.
Just Tertii
this is where one seeks to argue ones case on the back of the rights of others, using the case of someone else to further their own claim for relief-
what did the court note in the case of P v Circuit Court judges in regards to mootness?
IESC the court noted: As the appellant was being charged under s.11 of the 1883 Act, he has locus standi to challenge the Act. But such a challenge must arise out of his own particular circumstances… . He cannot summon up the hypothetical case of the possibility of the section being applied to prosecute adult consensual sexual activity with a person over seventeen years of age, because he is not facing such an accusation.
what are the facts of Mohan v Ireland?
Mohan was a case concerning a member of Fine Fail political party who was excluded from seeking a party nomination and wished to challenge the constitutionality of Electoral Acts. The High Court found that he failed to prove a link between the act and non-inclusion and as a result didn’t have standing.
- Court said the party would have been a better plaintiff. The court considered that although he was a member the party did not have a common purpose of opposing gender quotas. Objectives of Fine Fail did not include resisting gender quotas and therefore the applicant couldn’t rely on the membership to gain standing.
However the SC held that the applicant DID have locus standi for 3 reasons: 1) as a candidate who sought election 2) as a member of Fine Fail and 3) as a citizen.
example of just tertii - Norris v AG
challenged criminalistaion of buggery on privacy grounds, HC held that he had locus standi to challenge act even though he had not been prosecuted. Both SC and HC held that he could NOT raise arguments based on marital privacy because as a gay man he couldn’t marry.
example of just tertii - Reilly v Judge Patwell
applicant challenged strict liability nature of Litter pollution act, made occupier liable for failing to keep exterior of premises clean. Argued the act was unconst. Didn’t provide for defence of reasonable care.
BUT court held that he didn’t exercise reasonable care and under jus tertii rule did not have standing
Standing of companies
A company can litigate constitutional issues in one of two ways. First it can litigant to protect its own constitutional rights. secondly, it may invoke public interest standing and take cases with a wider public interest
a company can litigate to protect own const rights - Iarnroid Eireann
P company challenged concurrent wrongdoer provisions of civil liability act based on argument that act breached property rights. Held company did have standing
A company may invoke public interest standing and take cases with wider public interest - SPUC v Coogan
attempt to restrain the publication of abortion material in student union handbook, P was company objectives included protecting unborn
Court held that anyone with a ‘bona fida interest and concern’ in protecting the unborn would have standing
Standing of unincorporated bodies
An unincorporated body is most unlikely to be granted standing. The main difficulty is that the individual members of the group would make better plaintiffs.
Construction Industry Federation v DCC is the key case. Here, the plaintiff was an unincorporated trade association representing people in the construction industry. The supreme court held that the CIF did not have standing to bring the case. It was a challenge which could have been brought by any of its members.
