A Basic Cornerstone

It is a fundamental principle of the Constitution that the State and State authorities must follow the rule of law. This requires that their actions be justified and mandated by law. The principles are seen in so-called administrative law, dealing with the relationships between government and quasi-governmental bodies and the citizen.

The principle of legality or the rule of law is not expressly stated in the Constitution. However, it is implicit in a number of respects. The principle of adherence to the rule of law is a basic international human rights and constitutional principle. It was found or expressly provided for, in many Constitutions. In the Irish Constitution, it is express.

Impact on Criminal Law

A feature of legality is that criminal offences are interpreted, restrictively because they allow for sanctions, including the deprivation of liberty. A serious offence is presumed to require a mental element or an element of fault.

In CC v. Ireland, the strict offence of having unlawful carnal knowledge of a minor aged under 15 was found unconstitutional. There was no provision for an honest mistake regarding age because the mental and fault element was wholly absent. It failed the constitutional standard.

In the reference of the Employment Equality Bill 1996, the Supreme Court considered vicarious liability on the part of employers for criminal offences on the part of an employee. This was held to be permissible only in respect of regulatory offences of a relatively minor nature. A provision whereby an employer might be held vicariously liable for breaches of the legislation carrying a fine of up to £15,000 or two years imprisonment was held to be unconstitutional.

Effect on Statute Law

It is a principle that statutes are to be interpreted in a manner that upholds a constitutional interpretation. This principle has the effect of limiting the application of ambiguous and potentially ambiguous and overbroad wording in statutes, which might impact constitutional rights.

An element of the rule of law is the publication of laws and their being made known to the public. A Bill is passed by both Houses of the Oireachtas and is presented to the President for signature. It was then promulgated by notice in Iris Oifigiúil. The definitive text is that enrolled in the office of the Registrar of the Supreme Court.

Formerly, statutes were published by the Stationery Office and sold over-the-counter or by post. Similarly, statutory instruments were required to be published under the Statutory Instruments Act and made available. Statutes and statutory instruments are now available on the Internet through the Irish statutory database and the Oireachtas website.

Offences Must be Clear

The common law principle that penal or criminal statutes are interpreted strictly finds expression in the constitutional protection of liberty. A person should not be held criminally liable unless the action or behaviour is clearly prohibited and criminalised by statute.

An offence must not be overly vague. In King v Attorney General, offences under the Vagrancy Act, including being a suspected person and reputed thief, were found to be insufficiently certain, so to constitute a criminal offence for Constitutional purposes.

Some offences are common law offences. It is questionable whether the common law courts retain the ability to develop new offences or expand existing offences by way of analogy and precedent. In Open Door Counselling v. Attorney General and S.P.U.C. v. Open Door Counselling, the controversial offence of conspiracy to corrupt public morals was recognised as subsisting, continuing to subsist.

A number of Irish cases have held statutory offences and regulatory offences to be invalid on the grounds of being insufficiently certain. See King v. Attorney General, mentioned above in relation to the Vagrancy Acct 1824.

In Dokie v. DPP 2011, it was held that the offence of non-production by a non-national of valid documentation, unless a satisfactory explanation of the circumstances which prevented him so doing, was vague and insufficiently certain.In Dillon v. DPP, begging in public was held to be insufficiently defined as to constitute an offence.

The Proceeds of Crime Act 1996 was challenged in Murphy v. GM on the grounds that the definition of proceeds of crime was overly broad and vague. The Supreme Court rejected the claim and acknowledged that while the act’s definitions were broad in scope, the State was obliged to act in accordance with the requirements of constitutional and natural justice.

No Retrospective Criminality

The principle against retroactive criminalisation is reflected internationally in human rights documents. The Constitution prohibits the retroactive criminalisation of acts and behaviour. Article 15.5 provides that the Oireachtas shall not declare acts to be infringements of the law that were not so at the date of their commission.

The Vagrancy Act criminalise a number of offences including fortune-telling, exposing wounds or deformities while begging, being a suspected person frequenting a street or highway with intent to commit a felony. The intent could be ruled from the accused’s known character.

In King v. Attorney General, the Supreme Court held the offences to be unconstitutional on several grounds, including their retrospective nature, their subjectivity and insufficient certainty.

In Enright v. Ireland, it was held that the requirement of the Sex Offenders Act requiring convicted sex offenders to register was not a penalty for the purpose of retrospective legislation.

Article 15.5 applies not just to criminal law but to penal laws of any type. This may include proceedings that are designated civil but involve the imposition of a penalty. Civil damages would not constitute a penalty for this purpose.

Civil Law and Retroactivity

In Haughey v. Moriarty, it was held that the power to award costs against a witness who had knowingly and falsely mislead the tribunal, should not apply retrospectively prior to the commencement of the legislation.

The principle of retrospectivity does not apply to procedural matters and rules of evidence. It is well established that a change in the law of evidence and procedural rules may apply to matters occurring before the change.

The Proceeds of Crime Act were held in Murphy v. GM to have a retrospective effect on the clear wording of the statute and could apply to the acquisition of property prior to the enactment of the legislation.

There have been instances where the State has retrospectively sought to validate unlawful actions. In the reference of the Health Amendment Bill 2004, the Supreme Court found that an attempt to validate unlawful the taking of social welfare pensions payable to persons in nursing homes (which have been found invalid under earlier provisions) could not be validated.

Such acts, commonly contain a provision that they are to be effective, only insofar as they do not conflict with the Constitution. Provisions of this nature in themselves have been upheld in  Grealish v. DPP.

In a number of cases, it was held that where a District Judge was invalidly appointed while being ineligible (post-retirement), legislation could not retrospectively validate decisions and convictions made by him. The relevant conviction was invalid due to the officeholder not having been qualified to be such and retrospective legislation could not change this.

In Howard v. Commissioner for Public Works, the legislation purported to validate the absence of planning permission by a State authority for an interpretive centre which thereby circumvented an injunction granted before passing of the law. The legislation was by its terms retrospective. A claim that the legislation was contrary to the separation of powers and, impermissively retrospective, was rejected. It simply conferred legality where it had been absent. It did not purport to act retrospectively and did not by its terms affect the earlier court order. There was no right to have the law frozen and unchanged.

Judicial Matters and DIspensing Laws

A notorious source of executive abuse in early modern times were Bills of Attainder, by which Parliament outlawed and confiscated the lands of persons typically large land magnets, who had rebelled. Some of the most notorious instances applied in Ireland. A Bill of Attainder is likely to be contrary to the Constitution, being in the nature of the legislative punishment and as such invalid as a usurpation of the powers of the courts.

In East Donegal Cooperative v. Attorney General, a power for the Minister for Agriculture to exempt marts from the requirements for licensing, if the Minister thought fit, was found to violate the guarantee of equality.

“The constitutional rights of the Oireachtas in legislation to take account of differences of social function and differences of capacity, physical or moral does not extend to delegating that power to members of the executive, to the exclusion of the Oireachtas, in order to decide as between individuals, which of them should be excepted from the act. The power to dispense with requirements may be valid in certain circumstances.

Right of Access to Court

The right of citizens to have recourse to the courts is fundamental. Both private individuals, government departments, agencies and bodies are subject to the law. In Byrne v. Ireland, the Supreme Court held that the common-law concept of sovereign immunity was unconstitutional. The State and State bodies’s immunity from civil liability on the basis of the infallibility of the King was not part of the law of the State under the Constitution.

The right of access to the courts and to enforce rights of fundamental Constitution right, in particular, constitutional rights, may not be restrained from enforcement. The courts will grant a remedy in order to assert a constitutional right.

A wrong that arises from the failure to honour an obligation must be capable of remedy. In a contest between the citizen and the State in the pursuit of such a remedy, is a justiciable controversy cognisable by the courts, save where expressly excluded by a provision of the Constitution, if it is in respect of obligations and rights created by the Constitution.

In the State (Quinn) v. Ryan, it was emphasised, that the State may not act so as to deprive a person of his right to go to court, to challenge the legality of detention. It was held that extradition without the opportunity to apply to court to challenge the legality was impermissible under the Constitution.

The former requirement to have the fiat or consent of the Attorney General before suing a government Minister was held invalid.

Provisions, which seek to oust to the power of judicial review by the courts are likely to be invalid. They will be interpreted strictly. Several pieces of legislation since 1990 has sought to reduce the time limits and criteria and provide stricter criteria for initiating challenges by way of judicial review. The legislation was initially passed in the planning sphere requiring leave on notice, providing special short time limits and was extended into matters, immigration and National Asset Management Agency legislation.

The conferrals of absolute discretion on State authorities may be interpreted as being impliedly subject to rules of reason, and rationality. References to absolute discretion in relation to the refusal of a request for naturalisation were held in Mallak v. Minister for Justice to be subject to challenge on the grounds of reason and rationality, taking into account proper considerations etc.


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