Express Power of Review
The Irish Constitution allows for the judicial review of laws in relation to their compliance with the Constitution. The courts have express power to declare a law, whether made by the Oireachtas, a statutory instrument or otherwise made under the authority of statute, to be unconstitutional.
This power is in marked contrast to the practice in the United Kingdom where the position has long been that the courts may not strike down laws as such. The Human Rights Act allows for findings of incompatibility. It does not give the courts the power to strike down and invalidate laws. The UK Parliament and government usually remedies the non-compliance after a finding of incompatibility has been made.
The US Supreme Court famously implied the power to find laws unconstitutional into the US Constitution at the beginning of the 19th century. It has since liberally developed an extensive and sophisticated system of constitutional rights and principles.
Over the last two centuries, constitutions worldwide have typically incorporated the power for the higher courts or a special constitutional court to find laws unconstitutional.
The Irish Free State Constitution provided for a power of judicial review. However, this was largely rendered irrelevant by the ability of the Oireachtas to amend the Constitution throughout the whole of its existence.
Article 50 of the Constitution carried over the laws made under the Irish Free State constitution, provided they were not inconsistent with the 1937 Constitution. In the case of post-Constitution legislation, the Oireachtas is prohibited from making laws that contravene the Constitution’s provision.
Article 26 Reference
Before signing a bill, the President may refer it directly to the Supreme Court for a decision as to whether any provision in the bill or a specified provision is repugnant or not repugnant to the Constitution.
The President first seeks the advice of the Council of State, but the matter of reference is ultimately a matter for the President’s discretion. The reference may be made within seven days of the bill being presented for signing.
The Supreme Court is to give a single decision in respect of references under Article 26. There was a similar provision in relation to decisions of the Supreme Court regarding challenges to post-constitutional legislation. This had also been extended to challenges to statutory instruments made under post-1937 legislation. This latter provision was changed by a Constitutional referendum in 2013.
Scope of Power
Judicial review based on constitutionality may arise in civil or criminal proceedings. It may arise in cases between individuals or those to which the State is a party. Where the state is not a party and a constitutional issue arises, the Attorney General must be notified and is heard, in view of the State’s interest in the matter.
The Constitution confers the High Court with full jurisdiction to determine all matters and questions. This extends to questions as to the validity of any law, having regard to the provisions of the Constitution. This power of judicial review is itself provided for in the Constitution. Accordingly, it may not be removed by ordinary law. It may only be amended or removed by referendum.
A referendum may be challenged, with reference to the Constitution, for failure to follow the requisite constitutional procedure for holding a referendum. Referenda themselves may be challenged under the referendum legislation in a referendum petition.
An Act passed by the Oireachtas is presumptively valid, unless and until it is specifically found to be unconstitutional.
During a state of emergency, laws passed for the purpose of securing public safety may not be found unconstitutional.
The President is not answerable to the courts for his conduct in office. He may be held accountable through the impeachment mechanism provided for in the Constitution.
In almost all circumstances, the courts have jurisdiction to strike down laws and formal governmental decisions and actions. However, some types of issue are non-justiciable. They are the exclusive concern of the government and are not generally the subject of judicial review or scrutiny. They include meetings and affairs of the Government, the internal affairs of the Oireachtas and decisions on fundamental public policy, security, defence, foreign affairs and international relations.
Although the Constitution requires the State to adhere to the principles of international law, the courts have long held that this does not mean that the actions of the State may be reviewed on the basis of international law principles.
The courts do not consider political issues concerning the enactment of the law. The courts are directed by Article 45 of the Constitution that the Directive Principles of Social Policy do not provide a basis for a finding of unconstitutionality.
Attempts to intervene and restrain bills passing through the Oireachtas have failed. In several cases, the courts have refused to consider the constitutionality of bills where parties sought to enjoin their enactment. Equally, challenges to the merits of referenda and their terms have failed on the basis that they are outside the scope of judicial review.
The courts recognise that matters of public policy are intended by the Constitution to be dealt with, handled and decided by the elected representatives of the people. Where, however, governmental action breaches individual rights, causes losses to arise or infringes on relations between the individual and the State or between private individuals, the constitutionality of laws, governmental actions and decisions may be questioned.
In the Crotty case, the Supreme Court found the ratification of the Single European Act to be incompatible with the Constitution, notwithstanding that it had profound political consequences internationally and prevented the European Communities from ratifying a fundamental revision of its Constitution.
European Union law requires all courts to disapply provisions of domestic law which are inconsistent with European Union law, where such circumstances arises. There is provision for reference of questions by any court to the Court of Justice of the European Union.
The European Court may give a definitive ruling on the application of European Union law and the circumstances which may require invalidation of domestic law. The matter is remitted to the domestic court.