Principles of Judicial Review

Question 1

1. The Presumption of Constitutionality

Educational Co of Ireland v Fitzpatrick [1961] Budd J stated:

Answer 1

PC: Legislation is presumed to be constitutional until the contrary is demonstrated clearly: - “The legislative body must be deemed to legislate with a knowledge of the Constitution and
presumably does not intend by its measures to infringe it”, unless contrary demonstrated.

Question 2

Corollary Principles: The Double Construction Rule and Exercise Presump

McDonald v Bord nag Con [1965]

Answer 2

set out the double-construction ruleIf there is more than one way of reading legislation, and one is Constitutional, court must choose the constitutional way.

Question 3

Corollary Principles: The Double Construction Rule and Exercise Presump

State (Woods) v AG [1969]:

Answer 3

Explains rationale for rule: leaving a lacuna in the law is undesirable
- If a court finds legislation unconstitutional, it leaves a void where the legislation was but it cannot
fill that void. If this power was used indiscriminately, it would upset the structure of government.

Question 4

Corollary Principles: The Double Construction Rule and Exercise Presump

East Donegal Co-Op v AG [1970]

Answer 4

PC also requires a presumption discretionary powers under an Act were exercised constitutionally: - Presumption of Constitutionality includes the presumption Oireachtas intends procedures, discretions, etc. permitted by an Act are conducted in acc w principles of constitutional justice.
- Any departure from those principles would be restrained and corrected by the courts.

Question 5

Deference (i) Social or Economic Policy Matters

Ryan v AG [1965]:

Answer 5

Kenny said when dealing with controversial S&E matters on which it’s notorious view change from generations, Oireachtas has to reconcile the personal rights with the claims of the common good and its decision should prevail unless it’s oppressive or there’s no reasonable
proportion between the benefit it confers on citizens and the interference with their personal rights.

Question 6

Deference (i) Social or Economic Policy Matters

Re Art 26 and the Planning and Development Bill 1999 [2000]:

Answer 6

In balancing competing social or economic interests, the court said: - Held it’s the Oireachtas’ responsibility to reconcile the different rights of society, so this places a
heavy onus on anyone claiming they did it in a way that breached the guarantee of equality.

Question 7

Deference (ii) Taxation

Madigan v AG [1986]

Answer 7

• Held an app faces an uphill battle challenging a tax statute: (1) he faces the presumption and (2) it’s been recognised re tax laws that considerable latitude must be given to the legislature in the v
  complex task of organising the financial affairs of the State. Tax laws are in their own category.

Question 8

Deference (iii) Social welfare

Hyland v Minister for Social Welfare [1989]

Answer 8

• Court emphasised the difficulties facing the legislature in trying to accommodate various interests when setting SW for couples co-habiting that differed from married couples.
• Can’t make it so attractive so to encourage mothers to neglect their work in the home (lol)

Question 9

Mootness

How can it arise?

Answer 9

Mootness can arise two ways: (a) The issue can be determined on the basis of general law e.g. tort so the constitutional issue isn’t essential or (b) the constitutional law issue is no longer relevant to the P.
If the court has a method to dispose of a case without ruling on the constitutionality of an Act, it will
do so and the constitutional issue will become moot.

Question 10

Mootness

White v Dublin City Council and AG [2004] Summarizes the law:

Answer 10

• Held that where there are points that do not question the possible invalidity of an Act of the Oireachtas, it follows that they must be dealt with first. If they’re decided against the P raising the
  constitutional issue, then the constitutional issue normally won’t be reached.

Question 11

Mootness - Exceptions

Condon v Minister for Labour [1981]

Answer 11

• Pay deal was brokered bw bank officials and banks outside the National Agreement framework that was prohibited by legislation. When the legislation was challenged, it’d expired & thus moot
• SC held it could still be reviewed where the issue is “capable of repetition yet evading review”
• Court knew it was likely legislation like this would be enacted in the future.

Question 12

Mootness - Exceptions

Desmond v Glackin [1993]

Answer 12

• D was subject to cert under CA 1990 providing if an officer/agent of a co refuses to cooperate with a corporate enforcement inspector, he’d face punishment for contempt of court.
• He had cooperated, so it was moot, But SC held a further cert could be issued so he had an immediate interest in the constitutional validity of the process (thus not moot)

Question 13

Mootness - Exceptions

McDaid v Sheehy [1991]:

Answer 13

Held that a moot point cannot be decided upon (this legislation affected
loads of Revenue statutory instruments). Stern decision. NOT GOOD LAW.

Question 14

Mootness - Exceptions

Doherty v Government, AG and Dáil Éireann [2010] NB case note

Answer 14

• D (senator and registered elector for Dáil constituency Donegal SW) brought app for JR seeking declaration the gov not oppose a motion to have a writ moved for a by-election.
• Mootness: Gov said no need for case as they promise to move the writ to early 2011. Court didn’t accept: this is the gov ‘intent’ right now, but circs might dictate change in intent… not moot.
• Justiciability: Noted Crotty, Dudley, etc. and said there’s ample precedent to conclude that decisions or omissions that affect citizens’ rights under the Constitution are prima facie justiciable. He noted this wasn’t a controversy related to the internal workings of the Dáil nor a socio-economic one. This affects democracy: right of person to stand and right of others to vote.

Question 15

Mootness - Exceptions

NHV v Minister for Justice [2017]

Answer 15

• Held the issue re legislation prohibiting refugees working while awaiting status was not moot just
  bc he was granted refugee status. This was a test case that affected many many other people.

Question 16

3. Locus Standi

Cahill v Sutton [1980] NB

Answer 16

 TEST: One’s interest must be adversely affected or stand in real or imminent danger of being adversely affected by the statute (Henchy J).
- But Henchy noted this is not a rule of concrete rigidity: it must be subject to expansion, exception or qualification when the justice of the case so requires. Example: where those affected by the impugned statute are not in a position to assert their rights adequately or in time.
- C statute barred from a civil action and knew. Agued from point of a hypothetical 3rd party that S of Limitations was unconst as you mightn’t know about an action. This is jus tertii so rejected.

Question 17

3. Locus Standi

Norris v AG [1984]:

Answer 17

N not allowed argue that legislative ban on a certain type of sex conduct that took place bw consenting persons of diff sexes violated right to marital privacy as he’d never marry

Question 18

3. Locus Standi

Madigan v AG [1986]:

Answer 18

M tried to challenge parts of the tax code re how it would apply to persons
other than themselves i.e. demonstrating how it could create hardship, etc. Not allowed.

Question 19

Representative Actions

Cahill v Sutton

Answer 19

Henchy J mentioned an exception where the issue is one that affects a large group of which the challenger is one person and it’s difficult to identify a more affected person.

Question 20

Representative Actions

SPUC v Coogan [1989] NB

Answer 20

• Argued S should be allowed represent the interests of the unborn. They can’t take a case.
• Held it’s not just the AG who gets to vindicate the rights of the unborn (constitutional rights). Sometimes the AG is a respondent in these cases so it’s impossible.
• Test: The applicant must have bona fide interest and concern with interest being used in sense of proximity or an objective interest.
• In ascertaining if the interest exists, must consider the nature of the constitutional right.
• Also there was no other suitable plaintiff: unborn can never take a case.

Question 21

Representative Actions - Companies

Lancefort v ABP [1997]

Answer 21

Bona fides cannot be determined by looking at the constitution of a company alone:
- Held such documents didn’t demonstrate a bona fide interest, but the judge looked at the members of L directly and held such an interest did in fact exist. NB for exam.

Question 22

Representative Actions - Interest Groups

Irish Penal Reform Trust v Governor of Mountjoy Prison [2005]

Answer 22

• IP entitled to sue on behalf of prisoners in Irish prisons. Must be adequately able to defend rights.
• Held not to be able to adequately defend – prisoners are vulnerable in society.

Question 23

Representative Actions - Interest Groups

Construction Industry Federation v Dublin City Council [2005]

Answer 23

• Trade association of property developers challenged contribution scheme s.48 PDA. LS?
• HC held LS: As s.48 was one that was directed at CI’s members, it had an interest and thus LS.
• SC overturned: This challenge could be brought individually by any of the members as they are all very wealthy companies unlikely to be deterred by financial consequences.
• Also, if they lost and costs awarded against them, they could wind up CIF and pay nothing.
• Held you need good and sufficient reasons to show why they should depart from the LS rule.

Question 24

Representative Actions - Political issues

Crotty v An Taoiseach [1987]

Answer 24

• Challenge to constitutionality of State’s ratification of the Single European Act on basis it fettered the State’s const function of foreign policy decision making taken by a man. Affects us all?
• C was held to be a responsible citizen taking a legitimate interest in a matter of serious political import and thus held to have the requisite standing despite failure to prove any special injury

Question 25

Representative Actions - Political issues

Riordan v An Tánaiste [1997]

Answer 25

• 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

Question 26

Representative Actions - Political issues

Hall v Minister for Finance [2013] Strict LS

Answer 26

• 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?)

Question 27

Representative Actions - Political Issues

Grace and Sweetman v ABP [2017] NB: Reaffirms Cahill

Answer 27

• 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

Question 28

Representative Actions - Political Issues

Mohan v Ireland [2019] NB HC

Answer 28

• 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.

Question 29

Representative Actions - Political Issues

Mohan v Ireland [2019] NB SC

Answer 29

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!

Question 30

(a) Issues involving Policy: Decisions

O’Reilly v Limerick Corporation [1989]

Answer 30

• 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.

Question 31

(a) Issues involving Policy: Decisions

Sinnott v Minister for Education [2001]:

Answer 31

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.

Question 32

(a) Issues involving Policy: Decisions

TD v Minister for Education [2001]:

Answer 32

Building of facility for troubled young people: Legislature

Question 33

(a) Issues involving Policy: Decisions

R (M) v R (T) (Roche) [2006] Embryo Case

Answer 33

• 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.

Question 34

(a) Issues involving Policy: Decisions

McKenna v An Taoiseach (No.1) [1995] and (No.2) [1995] Divorce Referendum

Answer 34

• 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.

Question 35

(a) Issues involving Policy: Decisions

Hardiman’s four reasons for “how” to implemenet rights being a nmatter for Gov?

Answer 35

(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.

Question 36

(b) Text of the Constitution Vests the Power to Other Bodies

Textual Commitment:

Answer 36

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.

Question 37

(b) Text of the Constitution Vests the Power to Other Bodies

Horgan v Ireland [2003]

Answer 37

• 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.

Question 38

(b) Text of the Constitution Vests the Power to Other Bodies

Dubsky v Government of Ireland [2005]

Answer 38

• 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)

Question 39

(c) Will the Court Intervene in Extreme Cases?

O’Malley v Ceann Comhairle [1997]

Answer 39

• 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’

Question 40

(c) Will the Court Intervene in Extreme Cases?

Sinnott v Minister for Education [2001]:

Answer 40

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!)

Question 41

(c) Will the Court Intervene in Extreme Cases?

Callely v Moylan [2011] NB Case Note HC

Answer 41

• 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!)

Question 42

(c) Will the Court Intervene in Extreme Cases?

Callely v Moylan [2011] NB Case Note SC

Answer 42

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”.

Question 43

(c) Will the Court Intervene in Extreme Cases?

Doherty v South DCC [2007] Extreme example of N-J offered

Answer 43

• 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.

Question 44

(c) Will the Court Intervene in Extreme Cases?

Meadows v Minister for Justice [2010]

Answer 44

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.