Principles of Judicial Review Flashcards

Question

# Representative Actions - Political issues Riordan v An Tánaiste [1997]

Answer 1

- R argued Taoiseach/Tánaiste breached Art 28 by being out of the country at the same time - Held he’d LS: AG could not have sole LS as he would normally be a def in a case as he’s the govs chief advisor. If courts didn’t allow concerned citizens to bring such a case, they’d be powerless to deal with a serious failure by a high constitutional officer. But, there are limits as in Riordan v An Taoiseach [2001] he was subjected to an Isaac Wunder order

Answer 2

- Challenged failure of the Dáil to vote on the issuing of promissory notes to a bank’s creditors - Held an ordinary citizen did not have LS as this was an issue that only affected members of Dáil Éireann so they were the more appropriate litigant (could argue the whole country was affected?)

Answer 3

- Challenged PP for wind farm in Kilkenny: said ABP didn’t carry out adequate EIA under Habitats Directive. Sought determination re their LS as they hadn’t participated in the planning process. - Held G had LS as she lived 1km from site thus felt not necessary to decide if S had LS. - Stated ‘general principle’: Decision must give rise to an injury/danger of being adversely affected - Noted the rule may be different in environmental cases: looked at Lancefort which said prior participation or appropriate explanation for lack of it was a prerequisite for standing. - But court said that had since been put on statutory footing in 2000, but repealed in 2006. In light of this, they said it can no longer be held Lancefort precludes standing for lack of participation. - Thus Irish case law suggests that individuals can have an interest by virtue of proximity to the development and proximity required depends on size of development (big or small). - Noted that cases that involve EU Law (this) need to be examined from that perspective too. - Held the development is on a site protected by EU Law and that fact itself must carry significant weight in assessing LS. Protecting theses sites involves the interests of arguably every citizen - Concluded that, as a matter of national law, failure to participate in planning process doesn’t exclude a person from having LS but may be a factor may be taken into acc in an appropriate case - Held a person who has sufficient proximity, having regard to the nature of the development and any amenity in the location potentially impaired, will have LS even without participation - Those who don’t have SP may be required to show they have some interest which is potentially affected and one clear way is participation, but it is not the only way. - Held the more general & important the amenity, the wider the range of ppl able to show interest

Answer 4

- M unsuccessful in HC in action that s.17 Electoral Act 1997 was invalid re Constitution. - HC: M had no LS applying Cahill and no ‘countervailing considerations’ to the general rule exist - M member of Fianna Fáil and chair of Dublin Centre Dail Ceanntair (CDC). In Sept 2015, M was nominated for selection as candidate at constituency candidate selection convention 7th October. - 18 Sept: M got letter: NCC decided one candidate must be selected and they must be a woman (this relates to the legislation: funding provided if a party meets certain gender quotas). - In CA, M contended he had LS as: (a) He’s sufficient interest in the subject (b) He’s been personally aggrieved or prejudiced (c) He’s raised important constitutional issues. - Claimed HC erred in app of Cahill and that there was countervailing considerations (Crotty etc.) - CA rejected claims, so he appealed to SC who overturned HC and CA decisions: Held M had LS.

Answer 5

SC Decision: - Held permitting a challenge to the constitutional validity of a piece of legislation should not be taken light and only be taken when a person shows they’re adversely affected in reality. - Noted Henchy in Cahill speaks of a person’s interests being affected rather than rights. - SC held ‘interest’ is deliberately broad to extend beyond constitutional or legal rights so that it is sufficient if the person is affected in a real way in his life. - SC didn’t accept M was not affected at all by the provision: LS is a threshold requirement to exclude those with no real connection to the legislation they are challenging. Held the only consequence of finding LS is to allow them argue the legislation is unconstitutional!! - Held if LS could be denied because the impact of the Act, though real, was deemed insufficient or bc it’s possible to hypothesise a person more clearly affected, then litigation on such matters would become an unpredictable and hazardous game of chance. - NB: Purpose of the rule isn’t to identify the person w the best claim and prevent anyone else from bringing one, it’s to exclude those w no possible interest and no claim to justify relaxing the rule. - Although FF or any other party could challenge this, they did not and the fact that one person has LS does not necessarily mean another does not. Only test is if each persons’ interests are affected. - Held there are certain classes of claims that members of an unincorporated assoc can’t purse alone e.g. trespass of property of a sports club. One member can’t sue alone. But didn’t arise here! - FF and M were in different positions and thus have different, if overlapping, claims. - Held the suggestion that the indirect nature of the impact on M deprives him of LS illustrates a more serious error in the approach of the HC and CA. Indirect nature not a reason to deny LS. - It treats the impact on M as a random by-product of the direct effect on the political party, but the indirect effect of this section is fully intended and is the objective of the legislation!

Answer 6

- Travellers in serious poverty claimed a right to basic and comparatively modest standard of living - Costello drew distinction bw distributive and commutative justice: D involves distributing common goods and common burdens. Held Oireachtas is the forum for arguments re distributive. - As O’s claim involved a claim to a portion of the nation’s wealth, it was thus distributive.

Answer 7

Free primary education for life rejected: Held this was a matter simply for the legislature i.e. related to policy making, more approp left to law-makers.

Answer 8

Building of facility for troubled young people: Legislature

Answer 9

- M and T (ex-husband) had embryos frozen. T signed consent entitled ‘husband’s consent’. - Split up, she wanted to use the embryos and not destroy them. He didn’t want this. M argued the frozen embryos were “unborn” and thus protected by the constitution under Art.40.3.3. - Held it’s not for the courts to decide whether the word “unborn” should include embryos in vitro. - Held this is a matter for Oireachtas to enact legislation or for the people if there’s a referendum - Note: they did not extend the constitutional protection to them, and claimed they were not deciding policy, but by not extending the protection they basically were.

Answer 10

- Held the constitutionality of gov using public money to support a side in a referendum was N-J - It involved balancing complex political and social factors. For executive arm. - But reversed in (No.2): Held gov is under obligation to act in accordance with the principle of electoral equality. Held it was ‘self-evident’ govs in a democracy can’t do what they did.

Answer 11

(i) To do so would offend the constitutional separation of powers. (ii) It would lead courts into deciding in areas they’ve no special qualification or experience in. (iii) It would allow courts to take such decisions even though they aren’t democratically responsible (iv) The evidence based adversarial procedures used in court aren’t approp for deciding policy issues.

Answer 12

One argument is to focus on the constitution’s text to support the contention that certain aspects of the Constitution place particular decision-making functions with other bodies.

Answer 13

- H argued decision of gov to allow US troops use Shannon Airport was unconstitutional on basis it amounted to participation in war which requires the prior formal assent of the Dáil under Art 28. - Held Art 28 places decision-making re war matters in the Dáil and the gov, not the courts.

Answer 14

- Challenge to gov decision to allow aircraft involved in military action in Afghanistan to stop and refuel in Shannon without the assent of the Dáil under Art 28. - Macken J held whether a war is going on is not for the courts to decide and held the app failed to prove there was a war going on (?: Court basically decided already and made up reason for it)

Answer 15

- Argued the CC unlawfully disallowed a parliamentary question. SC noted this was a matter primarily for the inner workings of the Dáil, but did not hold the question non-justiciable. - Held it a case where intervention may be required only in some ‘very extreme circumstances’

Answer 16

Similar logic: said he reserves a power of judicial intervention in those types of cases for extreme situations. (Note: this is extreme! Only 3 yrs given!)

Answer 17

- Senator C challenged a disciplinary action by the Committee on Members interests of Seanad re expenses claimed by him. Under Ethics Act, investigated potential breaches by him of the Act. - C claimed he was denied natural justice and FPs in the way the Committee reached its conclusion - Also claimed the Committee had regard to irrelevant matters in reaching their conclusion. HC Decision (O’Neill J): Focuses on whether this is justiciable - He starts with the general proposition in Controller of Patents v Ireland [2001]: “There was much force in the def’s submission that what happened in Leinster House is neither cognisable by this court nor relevant to the issue that has to be tried”. - Then cited Howlin v Morris [2006]: Court considered Art 15, and said nowhere in the Art envisages a body outside the Oireachtas will exercise the powers conferred on that. - Then listed 4 factors that he concluded render the application justiciable: (1) There is no express exclusion in Art 15.1 of the jurisdiction of the courts like there is in Art 15.13 re utterances of Members of Oireachtas in House. No literal constitutional bar here. (2) Statutory Nature of Investigation: Drew distinction bw internal matters of the Oireachtas regulated by standing orders and matters of the Oireachtas regulated by statute. Held when Statute regulates the Oireachtas, such regulation can conceivably come within the scope of the courts and is not the normal parliamentary business contemplated by Art 15. (3) No Appeal from Seanad Committee, except to Committee: No appeal except to that committee. Offends principle you can’t be a judge in your own cause. Breaches natural justice (4) Complains from non-members of Oireachtas: s.8 Ethics Act allows persons other than members of the Oireachtas to make a complaint about an Oireachtas member and thereby commence an investigation. O concluded this brought the investigation outside the hermetically-sealed vessel of a wholly internal Oireachtas matter (Third party involved!)

Answer 18

SC Decision: Majority held (i) it was justiciable and (ii) there was a breach of FPs - Held the effective and unfettered exercise of the duties & functions of the Oireachtas wouldn’t be unduly affected if the limits of the immunities granted by Art 15.10, 12&13 were viewed strictly - Held the absence of a N-J provision in Art 15.10 was strongly indicative of the provision’s true meaning. Now needed to see if their constitutional role would be critically impaired - Held it wasn’t shown that if the apps were subject to JR their role would be impaired thus the immunity argued for wasn’t a ‘constitutional imperative’ or achieve an overriding const objective - Held, except where the Constitution requires, no justiciable matter could be excluded from the jurisdiction of the HC & strong language was needed to oust the prima facie jurisdiction of HC - Minority (Clarke, Donnelly Denham): Said N-J: ‘a principle derived from the C and intended to maintain constitutional equilibrium can’t be used to subvert the values protected by the C. Thus, proceedings amounting to a departure from the dictates of the C, which was neither prevented nor remedied by the Oireachtas itself then the courts could be obliged to act to maintain the C balance - Fennelly J (majority) agreed re the exceptional jurisdiction to intervene and noted it is not easy to devise a standard, but suggested it should be “that of clear disregard of constitutional rights”.

Answer 19

- Offers of accom to travellers. S said they can’t offer equivalent standards of social housing in caravans. But D claimed this failure breached ECHR (Art 8) and Housing Act provisions. - Rejected: Charleton said offers in houses were more than adequate. No entitlement to certain type of accom. Emphasised N-J: this is the distribution of public money and already offered accom!! - Held where a plea is made that the court should declare the absence of a welfare support to be wrong, app must show ‘a complete inability to exercise a human right for their own means and a serious situation that has set the right at zero with the prospect of serious long term harm.

Answer 20

SC considered the role of the court in JR proceedings. Held: (a) In JR, the decision-making process is reviewed. (b) This is not an appeal on the merits of the case. (c) The onus of proof rests on the applicant at all times (d) In considering the test for reasonableness, the issue to determine is whether the decision is fundamentally at variance with reason and common sense. (e) The nature of the decision and the decision maker being reviewed is relevant to the app of the test (f) Where the legislature puts decisions requiring special knowledge, skill or competence e.g. in the Planning Acts, w a skilled decision maker, courts should be slow to intervene in the technical area (g) Court must have regard to what Henchy J said in State v Stardust Victims: the “implied constitutional limitation of jurisdiction in all decision making affecting rights”. Any effect on rights should be should be proportionate to the objective to be achieved. If it is disproportionate it would justify the court setting aside the decision.