President + AG

Question 1

President

Answer 1

• Head of State under Article 12.
• Article 13.8.1
• Duties of the president are mandatory.
• Any practical powers they have are usually exercisable on the advice of the Government (Article 13.9)
• Article 26 reference:

Question 2

President

• Head of State under Article 12.

Answer 2

The office is more than a formal head of State. The president is cast by BnaH as the defender of people’s rights.
The role of president however is to prevent them from becoming an overpowering figure in Irish politics.

Eligibility and nomination come under Article 12.

Presidential independence comes under Article 12.11.1 which provides that the allowances to a president may not be diminished during a term of office i.e. cannot use financial intimidation to peruse a result.

Question 3

President

• Article 13.8.1

Answer 3

gives the president some immunity by virtue of their position.

Since the president is part of the Oireachtas, their papers are also privileged under Article 15.1.2.

Question 4

• Duties of the president are mandatory.

Answer 4

Article 12.9. 
Article 13.1.1
Article 13.1.2
Article 34
Article 13.4
Article 13.2.3

Question 5

They must not leave the State without Government consent under

Answer 5

Article 12.9

Question 6

President
• Any practical powers they have are usually exercisable on the advice of the Government (Article 13.9) i.e. they do not have discretion in their actions.

Answer 6

Even if they have discretionary power, the president is obliged to consult the Council of State.

State (Walshe) v Murphy: argument that a dc judge had not been properly appointed; an argument was made that because the president is not answerable to any ct that the ct could not declare the appointment invalid, that being an appointment of the president. However ct held this appointment to be merely formalistic, and granted itself jurisdiction in the matter.

President is not answerable to the Oireachtas either. But this is uncontroversial as most of the powers are exercisable on the advice of the Government or Taoiseach.

President can be removed for stated misbehaviour and when they are incapacitated. In this case, a presidential commission is set up to fulfil the role.

Question 7

The Taoiseach is appointed on nomination of the Dail

Answer 7

Article 13.1.1

Question 8

Government members are appointed on nomination by the Taoiseach with the approval of the Dail

Answer 8

Article 13.1.2

Question 9

The president appoints all judges under

Answer 9

Article 34.

Question 10

Article 13.4:

Answer 10

supreme command of the defence forces in vested in the president.

Question 11

The president may at any time, after a consultation with the Council of State, convene a meeting of either both houses of the Oirecahtas

Answer 11

Article 13.2.3

Question 12

President

• Article 26 reference:

Answer 12

when the president refers a bill to the SC on doubt of its constitutionality, the president first has to consult the Council of State and SC has 60 days to return a verdict.

There is only one judgment i.e. no dissents. This has been criticised as dissenting opinions offer an important insight into the flaws around a certain piece of legislation, which some commentators have noted may inhibit the development of constitutional case law.

Even though a bill has not yet been enacted, it will still enjoy a presumption of constitutionality. However if a bill is similar to previous unconstitutional legislation, it will not enjoy the presumption.

This happened with the Equal Status Bill 1997. President only has 7 days to refer a bill. This is a short time limit. 60 day time limit which the SC has was criticised in Re Article 26 and the Employment Equality Bill.

Also, a bill once enacted, cannot be challenged again. This is referred to as ‘gold plating’. It has been argued that this goes against the idea that the constitution is a living document and needs to be interpreted in a fluid manner with the passing of time.

Question 13

Attorney General

summary

Answer 13

• Article 30
• AG has a crucial role in vindicating the rights of citizens
• AG v Hamilton:

Question 14

Attorney General

• Article 30:

Answer 14

there is no eligibility requirements but the role is usually a senior counsel (barrister). AG cannot be a member of Government, but they traditionally attend at cabinet meetings.

McLoughlin v Minister for Social Welfare: 
Byrne v Ireland: 
Costello v DPP: 
AG v X. 
AG (SPUC) v Open Door Counselling:

Question 15

• AG has a crucial role in vindicating the rights of citizens…

Answer 15

maintaining the highest standards in the legal profession and as a point of contact between the judiciary and other branches of Government.

AG is crucial in providing a point of contact, and a method of communication, between the judiciary and other branches of Government.

Question 16

McLoughlin v Minister for Social Welfare:

Answer 16

addressed the issue of their independence.

They are independent and not a servant of the government.

Question 17

Byrne v Ireland:

Answer 17

noted their quasi-judicial and executive nature i.e. a unique position where they are neither the legislature, executive nor cts.

The primary function is an advisor to the Government in matters of law and legal opinion. This allows them to have legal professional privilege.

Question 18

Costello v DPP:

Answer 18

power to send forward an accused for trial where DC had refused to do so was likewise held to be unconstitutional interference with the administration of justice.

The old criminal proceedings obligations of AG are now vested in the DPP. AG is normally party to litigation involving the State i.e. where the State is a party to proceedings, the case is taken in the name of AG.

Question 19

AG will also defend the constitutionality of a bill before the SC i.e. making them a constitutional guardian. This was seen most famously in

Answer 19

AG v X

Question 20

AG (SPUC) v Open Door Counselling:

Answer 20

noted that he is entitled to sue to restrain the commission of an unlawful act, to protect and vindicate a right acknowledged by BnaH to prevent the corruption of public morals. This means he can commence proceedings on his own mandate.

Question 21

• AG v Hamilton:

Answer 21

beef tribunals enquiries into documents relating to cabinet discussions.
SC upheld cabinet confidentiality, Tasoiseach still released them. Despite this, AG did not intercede by way of injunction because AG acts on government consent.

Question 22

AG v Dublin Tramways:

Answer 22

AG held to be the correct plaintiff in action for loss of services of a policeman through d’s negligence.

Question 23

Irish Permanent Building Society v Caldwell:

Answer 23

p alleged that a rival building society was in breach of the public interest.

AG was again the appropriate plaintiff.

Question 24

McLoughlin v Minister for Social Welfare:

Answer 24

AG is in no way a servant to the government but is in an important independent position.

Question 25

AG is responsible for drafting

Answer 25

legislation, advising Government departments and conducting civil litigation.

Question 26

AG is also recognised as the leader of the Bar.

AG advises the Government on

Answer 26

the constitutional and legal issues which arise prior to or at Government meetings, including whether proposed legislation complies with the provisions of Bnah, acts and treaties of the EU, ECHR or other international treaties to which Ireland has acceded.

AG also advises as to whether the State can ratify international treaties and conventions.

Question 27

AG represents the State in legal proceedings.

AG is legal adviser to each

Answer 27

Government department and certain public bodies.
AG is the representative of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights.

Question 28

AG defends the

Answer 28

constitutionality of bills referred to SC under Article 26.

Question 29

AG is an ex officio member of the Council of State which the President can

Answer 29

consult in relation to his exercise and performance of certain powers and functions.

Question 30

AG also has functions in respect of the LRC

Answer 30

in respect of legislative programming as a member of the Legislation Committee which is chaired by the Government Chief Whip.

Question 31

AG is appointed by the President on the nomination of the Taoiseach and leaves the office if the Government changes.

Answer 31

Usually the person appointed is a lawyer who is politically associated with the party in power.