Irish Constitutional Law

All polities struggle with establishing the correct balance between family autonomy and state intervention.  In a liberal world, the family is often seen as being in some ways analogous to the individual, possessed of a zone of freedom in which it is inappropriate for the State to intervene. However, the family is obviously different from an individual insofar as it comprises several individuals – a parent or parents and a child or children. Deference to family autonomy, therefore, amounts to deference to those who are powerful within the family, allowing parents to make decisions on behalf of their children. Nevertheless, there remain good reasons to allow parents make decisions on behalf of their children. At least in the case of young children, they do not have the capacity to make decisions on their own behalf. Most people would accept that – in general – parents are better placed than the State to make decisions for their children. Conversely, most people would also accept that parents' authority over their children cannot be absolute. The State retains a residual concern for children who are abused, neglected or failed by their parents, whether through misconduct or personal inadequacy. The difficult question lies in establishing the threshold for state intervention.

In February 2018, the Supreme Court prepared to step into the abortion debate. The country was preparing for an abortion referendum, the sixth in 35 years. A somewhat obscure immigration case raised the question of whether the unborn child had any constitutionally protected rights, other than the right to life in Article 40.3.3°. The Court’s answer to this question could have significant implications for the imminent referendum campaign, influencing the legal meaning of the change that the people would be asked to make. In this paper, I analyse the Court’s judgment with a view to assessing its implications for the referendum campaign, implications that were—in my view—overstated by both pro-life and pro-choice campaigners. Even on its own terms, the Court’s decision would have limited, if any, relevance for future cases. The significance of the decision is further undermined, however, by an unpersuasive account of the amending people as a constitutional interpreter, an anachronistic approach to constitutional interpretation, and a dubious doctrine of constitutional precedent. As a result, the precise wording of Article 40.3.3° should play a far greater role in future cases than the Court’s judgment in M v Minister for Justice and Equality.

The European Convention on Human Rights Act 2003 can be understood as an attempt to achieve the protection of rights in this way. An obligation is imposed on public authorities to carry out their functions in accordance with Ireland’s obligations under the Convention. A procedure is provided for establishing inconsistency between legislation and the Convention. An obligation is imposed on the courts to interpret legislation in accordance with the provisions of the Constitution. However, certain gaps arise in this scheme of protection: some of these gaps arise from constitutional necessity or legislative choice; others arise from contestable judicial interpretations of the 2003 Act. Under section 5 of the 2003 Act, legislation can be declared incompatible with the Convention but, for constitutional reasons, this does not affect the continued operation of the legislation. A legislative choice has been taken to qualify the interpretative obligation in section 2 by reference to existing canons of constructions. Each of these positions limits the force of human rights protection. However, two further limitations have arisen by way of judicial interpretation. The Supreme Court has adopted a narrow view of what rules of law can be the subject of the interpretative obligation. The High Court has taken a narrow view of the remedies that can be granted for a breach of Convention rights on the part of a public authority.
This Article seeks to explore the limitations on human rights protection effected by the 2003 Act. It takes issue with a number of the more restrictive approaches adopted by the courts. Ultimately, the current situation may be thought to bear out the prediction of Keane CJ, writing extra-judicially, that the substantive rights issues presented for the judiciary by the 2003 Act might be less daunting than a casual acquaintance with the legislation would suggest. That this situation has been realised partly through contestable judicial interpretations is a matter of some regret.

The Good Friday Agreement 1998 provides for a pathway to Irish unity, should it come about. The advent of Brexit has brought with it numerous constitutional issues, not least the complication of the border between Northern Ireland and the Republic. This analysis sketches out Northern Ireland’s constitutional history, the current governmental systems in place in both Northern Ireland and the Republic, and offers three possible models of government in the event of Irish unification. These models are (1) Full Absorption of Northern Ireland into the Republic; (2) Unification with Retention of the Good Friday Agreement; and (3) Federation under a new Constitution. These models are considered with reference to three constitutional areas – state structure, parliamentary make-up and electoral systems – in the context of their ability to deal with the problems that unification may bring. Model 2 (Retention of the Good Friday Agreement) is recommended as the most appropriate to follow, closely followed by Model 3 (Federation). Model 2 is considered most appropriate due to its incorporation of a system of governance that has been moderately functional up until this point (Stormont), while incorporating representation for the now-minority Unionist population in the Oireachtas. Model 3 is somewhat recommended due to its necessary writing of a new Constitution, which would allow the opportunity for the creation of a new constitutional culture alongside the substantive changes made to the state’s structure.

This article considers Angela Kerins v John McGuinness, a 2019 case decided by the Irish Supreme Court concerning the justiciability of parliamentary proceedings. It is in four parts. The first two are descriptive: one presents the important facts of Kerins (including facts outlined in Kerins' submissions to the Court but not in the judgment); the other, the relevant constitutional text and precedents. Part III assesses how, in light of the text and precedents, the judges approached the question of justiciability in the case. It gives some consideration to the approach taken to the same question in Denis O’Brien v Clerk of Dáil Éireann, a related case decided in the same period, and in tandem, by the same seven judges. The concluding part offers analysis of the coherence and implications of this jurisprudence.

Austerity and economic hardship are common themes in the narratives about the causes of contemporary populism. Ireland, having endured a decade of austerity and a very severe EU-IMF bailout, might therefore seem to be a fertile bed for populism. But Ireland has (so far) seen the effects of populism only in a limited and unusual form. There has been neither a great left-wing populist rise, nor a new nationalist, populist right. Populism manifested chiefly in a movement – powerful and influential in its limited way – to resist payment of water charges.
 
The introduction of domestic water charges with the aim of reducing water waste and improving water infrastructure resulted in massive backlash, far greater than those from more severe consequences of austerity such as tax hikes, sweeping cuts in expenditure, a colossal bank bailout, and very high unemployment. It spawned a populist political movement, rallying and uniting left-wing political parties and creating a major lobby and protest group. Massive demonstrations were held. Workers installing water meters were obstructed and harassed. A senior government official was trapped in her car by water protesters, leading to prosecutions of a number of water protesters for false imprisonment along with considerable public controversy around accusations of political policing. Many Irish people refused to pay water bills sent to them.
 
This has been the major issue championed by anti-austerity and left-wing populist parties, with calls for wide-scale boycotts and protests and even suggestions that a right to water should be inserted into the Irish Constitution. It has been the focal point of Irish politics for the last half decade, affecting the outcome of both local and general elections.
 
This is a strange story of populism. On the one hand, many of the risks often associated with populism – government capitulation to populist demands, creep of mainstream parties towards populist causes, a splintering of the parliament – actualised in Ireland. On the other hand, they actualised in an unusual way that has left the political establishment largely intact: the party that led the imposition of austerity remains in power; political and structural reforms have been minor; concessions to populism have been largely limited to the issue of water. It seems as though populism was contained.  
 
I have two goals in this paper. First, I wish to map the idiosyncratic Irish experience, so that it can be considered in discussions of populism; and secondly, I wish to use this example to make a broader point about the local nature of populism.
 
Certainly, Ireland’s experience of populism can only be properly understood in light of its public law and conventions: its electoral system, executive dominated government, centrist political culture, and particular economic circumstances all played a role. From this, it might be thought that generalisable lessons could be learned from the Irish experience about avoiding the worst effects of populism, but I wish to argue that the opposite is true: Ireland’s unique experience shows the irreducible complexity and locality of populism. Populism is always contingent and local, reacting the peculiarities of political culture and circumstance. The best way to study populism is not through theory and search for similarity, but through observation of diversity. While we might see some similarity, pattern, and convergence in populism around the world, this is largely happenstance, and populism will always be recast and remade in each and each place to produce distinct and often unpredictable results. It is, even if while it seems to sweep the world, fundamentally a local phenomenon. The surprising and peculiar characteristics of the Irish case help illustrate the local nature of populism, which should inform any analysis of contemporary populist movements.

The background to the High Court case of Doherty v Ireland  was as follows. In the 2007 General Election the constituents of Donegal South West elected Mary Coughlan, Pat Gallagher, and Dinny McGinley to the 30th Dáil Éireann. Mr Gallagher’s seat became vacant on 6 June 2009 when he was elected to the European Parliament. The vacancy Mr Gallagher left in the Dáil would become the longest lasting in the history of the State. The Fianna Fáil led Government was deeply unpopular during the 2009-2010 period  as the true extent of the public cost of the 2008 banking crisis became increasingly apparent. The Government parties suffered two by-election defeats at the same time Mr Gallagher, a Fianna Fáil TD, vacated his seat.  As a result, the Government held a very narrow majority in Dáil Éireann,  which would almost certainly reduce further with another by-election. Accordingly, the Government had strong incentive to avoid holding a by-election in Donegal South West and in two other constituencies where seats had become vacant.
In the summer of 2010 Pearse Doherty, then a member of Seanad Éireann, sought a declaration from the High Court that the Government was under a constitutional obligation “at least not to oppose a motion” in Dáil Éireann to move a writ to hold a by-election to fill the vacancy. The applicant also sought an order compelling the Government not to oppose or otherwise obstruct a motion to hold the by-election.  At the substantive hearing of the case, by consent of the parties, a new relief  was added, that of a declaration simply that there had been excessive delay in filling the Dáil vacancy. It was this relief – formulated as: “there has been unreasonable delay in moving the writ for the by-election in Donegal South West” – that Kearns P granted on 3 November 2010.  The Government promptly reacted to Kearns P’s judgment; within three weeks the Donegal South West by-election had been held and won by the applicant himself.
In the context of identifying the applicant’s case as justiciable Kearns P made clear his understanding of the Constitution’s requirements for filling vacancies arising in the Dáil. He cited Article 5’s description of the state as democratic and the provisions in Article 16 on the right to vote in Dáil elections and the permissible parameters for the ratio of Dáil members to population, which much be equal around the country. He remarked that these provisions were not merely aspirational, but “set out the citizens’ rights in clear and unambiguous terms.” The judge emphasised that Article 16.7 envisaged “the filling of casual vacancies.” 
On the statutory interpretation question, Kearns P read section 39(2) of the Electoral Act 1992 Act (the 1992 Act) to include a requirement that the process for holding a by-election to fill a Dáil vacancy must take place within a reasonable time of a vacancy occurring. This subsection omits reference to an overall temporal requirement, distinct from the Chairman of the Dáil having to act “as soon as he is directed by the Dáil,” and the respondents argued the correct interpretation was that the provision leaves it entirely at the discretion of the Dáil when to hold a by-election. For Kearns P, however, the subsection, on the respondents’ reading, would be unconstitutional. He outlined how the presumption of constitutionality requires that “a statute must, where possible, be construed in a fashion which best protects constitutional rights” and stated:

To read section 39(2) of the Electoral Act, 1992 as being subject to the requirement that the writ be moved within a reasonable time does no violence to the express wording of the sub-section. Rather it gives effect to the sub-section in a manner which honours the Constitutional provisions in question.

The judge also stated that on ordinary statutory interpretation principles he could arrive at this reading of the subsection since it would otherwise fail to rule out a casual Dáil vacancy going unfilled for anything up to five years (that is, the entire life of a Dáil, if the vacancy arose shortly after a general election). Statutes are not to be interpreted such that they could produce, in Kearns P’s view, an absurd result such as this.
Additionally on the statutory interpretation question, Kearns P made reference to the court’s obligation under section 2 of the European Convention on Human Rights Act 2003 (the 2003 Act) to interpret and apply rules so far as is possible in a manner compatible with the State’s obligations under the European Convention on Human Rights (the Convention). He identified the obligation on states under Article 3 of the Protocol 1 of the Convention to hold free elections by secret ballot at “reasonable intervals.” Kearns P acknowledged the absence of authority on this substantive requirement for elections other than general elections. The judge did, however, conclude that the principles at issue – democratic representation and the ascertainment of public opinion – are the same and that it would be “absurd to apply a requirement of reasonable time to the holding of a general election and then to flout or altogether ignore the same principle at the micro level of a by-election.” Thus, Kearns P concluded that section 2 of the 2003 Act requires the reading of section 39(2) of the 1992 Act to include an expedition requirement for the by-election to be held in order to fill the Dáil vacancy to be held within a reasonable time. It is clear that for Kearns P any one of these three routes – the constitutional double construction rule, ordinary principles of statutory interpretation, and the obligation to read statutory rules in a Convention compliant manner –  would lead to the conclusion that section 39(2) is to be read as imposing an expedition requirement on the Dáil in moving to have its vacancies filled.
Kearns P’s conclusion of excessive delay in this instance was easily arrived at. At the time of the hearing, over 17 months had passed since the vacancy in Donegal South West arose and still there had been no writ issued for the by-election to be held, though there was evidence admitted that the Government intended for the by-election to be held in the first quarter of 2011. In concluding that this constituted inordinate delay, Kearns P made reference to the Constitution Review Group’s recommendation in 1996 that the Constitution’s text should be amended to include a specific requirement for a by-election to be held within 90 days of a vacancy occurring.  Kearns P also noted equivalent procedures in other jurisdictions specifying parliamentary vacancies to be filled in much shorter time periods than the length of time the Donegal South West seat had been left unfilled.

Poltcs s a messy affar, full of wheelng-and-dealng where commtments and deals are reneged on n the nterests of expedency. As lawyers, we lke to thnk of law as beng rather dfferent from poltcs -as havng brghter lnes and a more prncpled approach to the resoluton of problems. However, the lne between consttutonal law and poltcs s a thn one, 1 partcularly n those landmark controverses that consttutonal courts are called on to resolve from tme to tme. When socety s dvded on the scope or even the exstence of a rght, judges called upon to adjudcate on the controversy need to be more than good lawyers; they need to have a keen poltcal awareness as well.

This paper explores the similar obligation on Irish and UK courts under their respective legislative regimes to ‘take into account’ the jurisprudence of the ECtHR when interpreting what the Convention obligates. Irish Courts were keen to follow the UK courts’ pronouncements that domestic courts should do ‘no more but certainly no less’ than what the ECtHR has decided; however, UK Courts have in recent cases indicated a shift away from this rigid approach to a more flexible attitude towards Strasbourg jurisprudence and a resurgence of common law rights. This paper shall argue that Ireland should follow suit and adopt a form of judicial interpretation of rights that creates a more synergistic relation between the Constitution and the ECHR.

The introduction of divorce legislation in 1996 represented a pivotal moment in the context of Irish family law and the nature of marriage in this jurisdiction – departing from what it was previously known – as a contract for life – ‘til death do us part’. More profoundly, it signified a radical challenge for the lawmakers in terms of developing a regulatory framework to support this new piece of legislation. The statement attached to this question describes how certain aspects of the current regulatory framework were largely influenced and administered by the need to secure victory in what had been a controversial pre-referendum period in Irish legal history. In this context, this essay shall examine firstly the laws concurrent to the 1996 Act, which enable the judiciary to exercise wide-ranging powers of discretion in divorce proceedings. Judicial discretion can be characterized as ‘a judge's power to make decisions based on fairness or a weighing of the facts and circumstances, particularly in cases where a party requesting relief or a benefit has no automatic or clear-cut legal right to it. ’ Bearing this in mind, it is necessary to investigate how the lack of substantive policy aims have created a grey area with regard to divorce proceedings and how the judiciary may benefit from more solid, articulated guidance in their highly important decisions surrounding the outcomes of marital breakdown. Additionally, this essay shall consider the absence of clean break from the provisions governing ancillary reliefs. This is another aspect of the 1996 Act which was arguably overlooked by its drafters, due to its individualistic nature, running the risk of presenting a non-traditional approach to ancillary reliefs post-divorce. In this regard, this essay shall also briefly examine the potential merits of incorporating the option of clean break orders in light of the current Irish legal context.

Despite the promulgation of the European Convention on Human Rights Act (ECHR Act) in 2003, the highest courts in Ireland seem to still spend an inordinate amount of time grappling with misconceptions about the status of the European Convention on Human Rights (ECHR) in Irish law. From the presumption that the position of European Court of Human Rights (ECtHR) is basically similar to that of the Court of Justice of the European Union (CJEU), to the assumption that the Convention has direct effect; from the suggestion that s. 2 ECHR Act gives the judges the power to re-write legislation, to the argument that the organs of state must uphold Convention rights irrespective of Irish law, and the hypothesis that the courts can issue declarations that Irish law is inconsistent with the Convention outside of the terms of the 2003 Act. These five misconceptions are repudiated by the terms of the Constitution and the ECHR Act, and therefore the fact that the courts have dispelled these Convention myths is not unexpected – to endorse them would be to disregard both the Constitution and the position of the legislature. Nonetheless, these misconceptions persist because of a background presupposition that the rule of rights trumps the rule of law – that the rhetorical and political power supporting a legal claim for the protection of a fundamental right is sufficient to mandate a kind of high-minded imprecision or benign carelessness in relation to the interpretation of other rules. This short chapter will discuss each of these five misconceptions in turn, showing how the courts have consistently and convincingly refuted them, maintaining throughout that the rule of law is not disposable even in the context of fundamental rights’ protection.

This chapter considers the record of the Irish Supreme Court in its constitutional policing of the two political “organs of State.” It outlines the basis upon which the judicial organ enjoys the authority to determine the limits of the powers of the Oireachtas and Government. It explores the various approaches taken by judges and courts in a selection of the main cases in the period 1970-2020. On the powers of Government – and the power of the judicial organ with respect to those powers – it considers the famous case of Crotty v An Taoiseach. Here, a five-judge Supreme Court split on a fundamental question of constitutional principle: whether Government had the authority to enter the State into a particular treaty. Two of the five saw no basis for judicial intervention, whereas three, and thus a majority, were satisfied that there was such a basis. As for the powers of the Oireachtas – and the power of the judicial organ with respect to those powers – the chapter looks at In re Haughey, Abbeylara and Angela Kerins. Like Crotty, these cases go to the heart of the separation of powers in Irish constitutional law and politics. Overall, the analysis suggests that Irish judges have not been at all meek in their constitutional regulation of the political organs of State. They have happily stepped in, though generally seeking to limit their interventions to particular cases and contexts.

This article re-evaluates the operation of the declaration of unconstitutionality in the Irish courts. The jurisprudence on this topic has evolved in a way that is complicated and that is often seen as inconsistent. The case of Murphy v Attorney General set down a standard that, at least apparently, was subsequently tacitly abandoned by the Irish courts in A v Governor of Arbour Hill Prison and Damache v Director of Public Prosecutions. This article argues that the use of legal validity as the cornerstone concept in considering the effects of unconstitutional law is at the root of this supposed inconsistency. Although legal validity is relevant to unconstitutionality, it operates in conjunction with logically separate properties of legal norms such as existence and applicability. The differences between these properties are often poorly understood and contribute to conceptual confusion in this area. This article points out how these properties might be extricated from one another and how, by understanding parts of the holding in Murphy as being directed to applicability rather than validity, the courts' jurisprudence can be made more coherent.

This paper considers the prospect of using the Constitution of Ireland as the basis for a iunited Ireland Constitution. It is perhaps assumed by some political commentators in the South that this approach – similar to the German unification experience – is an obvious starting point. But it is far from clear that this is a workable model. It might have an advantage in giving us a default, a starting point and some sense of continuity that might make agreement on a constitutional arrangement less likely to break down. But at the same time, defaulting to the Irish Constitution’s positions could itself be so divisive as to cause such a breakdown in consensus.

If the Irish Constitution could fill this role, it would have to be overhauled in a major way, leaving a document that might look almost unrecognisable. The practicality of this should be carefully considered, but so too should the risk that unwritten or conventional aspects of the original constitutional order might remain in spite of radical change. This raises the philosophical quandary of the ship of Theseus: is a ship, with all its planks gradually replaced, still the same ship? The paper considers whether the protean nature of this radically amended constitution’s identity – simultaneously the same and vastly different – could offer a road to a successful compromise.

The supreme and constitutional courts of many Member States of the European Union – most notably, of course, the German Bundesverfassungsgericht – have consistently maintained that their role as final arbiter of all laws applicable in the national territory necessarily qualifies the claims made by the ECJ that European law is directly effective in the national legal order and supreme over national law. In contrast, the Irish Supreme Court, has in all but a single case, accepted the claims of ECJ and, in fact, effectively allowed the ECJ to control the terms of the legal relationship between Irish and European law. This has been understood as the inevitable consequence of the insertion of a ‘constitutional exclusion clause’, namely Article 29.4.6, in to the Irish Constitution. After examining the comparative examples of constitutional exclusion clauses, the historical context of Article 29.4.6, as well as the conflicting interpretations that have been pronounced in the courts in relation to Article 29.4.6, the article concludes that, far from allowing the Supreme Court to capitulate its responsibility to maintain a reviewing authority over the entry of European law into the Irish legal order, Article 29.4.6 actually provides the basis for the Irish Supreme Court to take the same strong stance as its European partners.

This paper focuses on the various references to natural law within the Irish Constitution and the use of natural law theory as an interpretative tool within Irish constitutional jurisprudence. In Part I, the background to the drafting of the Irish Constitution will be discussed, followed by an account of the various canons of constitutional review and modes of constitutional interpretation. In Part II, the conflicting constitutional jurisprudence on the relationship between the Constitution and natural law will be dissected.

Abstract: 29 countries in the world have introduced same-sex marriage. 22 have done so by legislation, four by judicial decision, two by a combination of judicial decision and legislation, and one by popular referendum. The Irish same-sex marriage referendum of 2015 has been criticised for putting minority rights to a popular vote. This criticism largely misunderstands the legal and social context of the Irish referendum, however. A necessary component of constitutional amendment, the referendum required campaigners to build a robust democratic consensus in favour of same-sex marriage, strongly entrenching minority rights. These benefits would likely not have arisen, however, if a referendum had been a choice on the part of political actors rather than a legal necessity. It is therefore unlikely that the Irish experience, whatever its merits, can be straightforwardly translated to other jurisdictions. Nevertheless, the Irish referendum campaign yields some lessons for other activist campaigns for same-sex marriage. In particular, the story-telling of gay people—and the responses of their fellow citizens—may have been more significant than the articulation of more public values, such as equality.

Although its precise normative content is famously elusive, the role that is played by the principle of human dignity in international human rights law is relatively clear: it is consistently stated to be the principle from which the human rights of the individual derive. However, in the realm of national constitutional law, the principle can sometimes be used in a rather more haphazard fashion, such that it can be difficult to pin down even its role in the constitutional order, not to mention its normative content. Ireland is a case in point. The Irish Constitution of 1937 was one of the earliest to invoke human dignity as a foundational principle, but case law interpreting and applying that principle has cast dignity in a variety of roles, and as a result has failed to develop in a coherent fashion. This paper will examine the various guises in which human dignity has appeared in Irish constitutional case law,and consider which examples demonstrate the added value that human dignity can bring to constitutional adjudication.

Perhaps the most distinctive feature of Irish constitutional culture is the strength of elite consensus that exists concerning the legitimacy and the merits of strong-form judicial review (i.e. judicial review of legislation on constitutional grounds). In this light, this chapter will consider whether or not, and how some of the well-known theoretical arguments against strong-form judicial review are borne out in certain aspects of the Irish experience. It argues that while there is a comparatively strong consensus in Ireland as to the benefits of strong-form judicial review in rights terms, these benefits have been broadly overstated and its political costs generally ignored. In particular, it will argue that the main effect of strong-form judicial review under the 1937 Constitution has been to stultify political discourse about rights during the legislative process.

forthcoming in Giuseppe Ferrari (ed), The Use of Foreign Law by Constitutional Courts (Brill Publishers, 2019)

Irish Supreme Court – the exclusionary rule – Justices Brian Walsh and William Brennan – Quinn’s  Supermarkets – retrospective application of declarations of unconstitutionality – Defrenne v. Sabena – A v. Governor of Arbour Hill – Justice Gerard Hogan – suspended declarations of invalidity – proportionality and the application of R v. Oakes – the ‘right to die’ in Ireland and Canada – ‘comparative localist’ analysis in constitutional adjudication – foreign law and ‘theoretical authority’

This academic opinion assesses the constitutionality of the contemporary application of the "money message" procedure under Article 17.2 of the Constitution. It begins by outlining the procedure's basis in the Constitution and the Standing Orders. It goes on to examine current use of the procedure, looking at the treatment of certain pieces of legislation from the current Dáil term to illuminate the practice, and noting that the procedure is used very expansively, much more so than the very similar Westminster procedure around "money resolutions". It continues by assessing the compatibility of the procedure as currently practiced and instantiated in the standing orders with the Constitution, and concludes that there are several potential constitutional problems that arise. First, the broad interpretation of the procedure seems to place unjustified limits on the capacity of the legislature to pass any legislation independently of the executive organ of the State, in contravention of the separation of powers and the exclusive lawmaking power of the Oireachtas contained in Article 15.2. Secondly, there are judicially-established constitutional limitations on the ability of the legislature to delegate lawmaking power to the executive (the principles and policies test); the logic that underlies this test should mean that Article 17.2 is not read to vest a veto over lawmaking in the executive, and that the legislature's power must be respected and protected. Thirdly, the government's power under Article 17.2 is not entirely discretionary; it must be exercised responsibly for a purpose related to finances and not for any other purpose, such as purely political opposition to a Bill. We conclude that, based on the overall framework set down by the Constitution with regard to the separation of powers, the use of the money message procedure must be at least in some way limited to ensure that the legislature can, in some real sense, make law, which is its exclusive constitutional responsibility under Article 15. 2

It is widely assumed that a constitutional principle of legislative supremacy confines judges, in interpreting statutes, to the modest role of effectuating legislative intention. In this article, however, we argue that statutory meaning is inevitably determined by constitutional and normative desiderata which are irreducible to legislative intention. Moreover, the prevailing account of statutory interpretation masks this by positing literal meaning as the default expression of legislative intent. The public values which inevitably inform statutory interpretation cannot be imputed to legislative intent. Constitutional principles cannot be conceived of solely as a "trump" on legislative intent in "frontier" cases where legislation is invalidated; they are also constitutive of statutory meaning across a much wider range of cases, independently of legislative intent. We argue that since the principle of legislative supremacy is so strongly qualified in the Irish context, it cannot support a theory of intentionalism in statutory interpretation.

Constitutional challenges have to be grounded in reality, focusing on actual or apprehended application of laws rather than words alone. This is achieved by two sets of procedural rules in constitutional law: standing rules, deciding who can take constitutional challenges to laws and what arguments they can make; and remedial rules, deciding what the consequence of a finding of unconstitutionality will be. This article argues that though Irish courts have successfully focused constitutional challenges on the application of law with standing rules, they have not done so in respect of remedies, which are far too sweeping, and stretch far beyond the particular unconstitutional applications that create constitutional problems. It suggests that constitutional challenges in Ireland should be radically overhauled, replacing the primary constitutional remedy of outright invalidity of laws with the invalidity of applicationsas-applied constitutional challenges. These challenges, which are the core remedial tool of US constitutional law, are totally unknown to Irish law. The article suggests, however, that they are fully compatible with the text and structure of the Irish Constitution, and would bring about several positive changes in Irish constitutional law.

In Irish constitutional law, popular sovereignty has been interpreted as guaranteeing the people an unfettered power of constitutional amendment. This article argues that the Irish jurisprudence of popular sovereignty appeals interchangeably to two rather disparate and contradictory historical concepts of sovereignty-one which understands the sovereign as a supreme political authority, and another as a more passive, abstract entity that approximates to " constituent power ". Accordingly, it argues that the doctrine of unfettered constitutional amendability relies on an account of sovereignty that is theoretically and historically incoherent.

In Gorry v Minister for Justice [2020], the natural rights phrases in Art 41 of the Irish Constitution - the provision protecting "the Family" - were at the heart of a fervent judicial disagreement. In O'Donnell J's view, the case stood "at a junction in the development of the caselaw on Art 41" and the "route chosen" - whether his own or that preferred by McKechnie J - would be of "longer-term significance." This article considers their disagreement and its implications, including for "the Family," and for the interpretation of Ireland's constitutional rights provisions generally.

Article is free to access online at: For my short article on this judgment in the Journal of Social Welfare & Family Law [2021], "Interpreting Natural Rights: Gorry and 'the Family' under Article 41, 
See, https://www.tandfonline.com/doi/full/10.1080/09649069.2021.1953854

The rule of law is a political ideal that legal systems can instantiate and against which they can be judged. On the one hand, those to whom the laws are addressed should be capable of following the laws. On the other hand, those in positions of power must implement the laws according to their terms. Only in such a legal system, the ideal holds, can the subjects of state power meaningfully make plans for their lives. Although it is not explicitly mentioned in the Constitution, the courts have frequently referred to the rule of law as an important constitutional value.  The textual prohibition on retroactive penal sanction and the judicially created rule against vague criminal offences both instantiate the ideal. In this chapter, I argue that more needs to be done to instantiate the rule of law ideal: administrative action potentially undermines the rule of law, since individuals may have no opportunity to tailor their activities to legally binding directives before they are issued. There are tentative indications in the case law that the courts may recognise a new constitutional doctrine constraining legislative grants of administrative power. I critically assess the emergence of this doctrine and seek to influence its development, disentangling it from a confusing association with the rule against the delegation of legislative power. Notwithstanding the absence of any clear textual basis, I argue that recognition of this doctrine would be a legitimate exercise of judicial power.

According to some, we are now living in the ‘Age of the Referendum’. But the rise of the referendum is fraught with worry it will usher in a crude populism which will obliterate constitutional constraints and lead – ironically - to executive dominance, authoritarianism and deep forms of democratic decay. Therefore, whilst referendums hold out the promise of constitutional self-government, we need to be mindful of the pitfalls and problems they bring in their wake.

In exploring the potential—and the pitfalls—of a democratic constitutionalist vision, Ireland offers a promising testing ground. On the surface, one might think that Ireland’s referendum process would fall victim to many of the common concerns about referendums. In initiation and formulation, the process is open to elite capture because the government gets to propose and formulate the referendum proposal which is put to the people. The process is purely majoritarian; 50% plus one of the voters on referendum day can approve any change. Any change can be proposed, however radical. Minority rights have been put to referendum vote. Ireland’s rules and regulation of campaign advertising and debate are loose and scant and seem unlikely to combat disinformation.

Yet, when examined closely, Ireland stands as a counterpoint to many of the criticisms and fears which surround referendums. Elite dominance, though formally prevalent, is offset by a substantial role for civil society in initiation and campaigning. Bare majority vote is supplemented by widespread participation and deliberation, which appears to be nuanced and robust, whilst minority rights have been vindicated when voted on. The process has not been subject to political exploitation for sweeping or abusive constitutional change. Though the record is far from perfect, referendums work reasonably well in Ireland, commanding high levels of popular participation and engagement, which go well beyond the mere act of ratifying or rejecting a referendum proposal at the ballot box and extend to widespread, relatively well-informed and committed popular deliberation. During a constitutional referendum in Ireland, a national conversation takes place about what people want their Constitution to mean. As such, Ireland is a crucial case-study in exploring the promise - and perils - of constitutional referendums.

Judges share conventional understandings about what the Constitution requires, both of themselves and of other constitutional actors. These informal conventions lead to formal decisions, which are then centrally enforced by the state in the same manner as all other judicial decisions. This recognition of conventional constitutional law has three critical implications for our understanding, critique and reform of constitutional law. First, it is unlikely that judges will refer explicitly to their own conventions in their decision-making; however, scholars cannot provide an accurate explanation of constitutional law if they do not account for the possible role of conventional constitutional law. Second, although there is nothing inherently objectionable in conventional law, it is problematic that the interaction of conventional and written constitutional law allows the conventions of a judicial and legal elite attain the force of law for other people.
Third, in some circumstances, it may be more effective to change constitutional law by changing how we select judges than by formally amending the text of the Constitution.

The failure of the Irish High Court to find that the practice of slopping out was inhumane and degrading was an opportunity missed. The Supreme Court of Ireland now has an opportunity to rectify this unjustifiable lacunae in Irish and European law.

The article examines provisions governing reciprocal maintenance obligations in Ireland both from a historical perspective and in comparison with contemporary provisions in the EU28. Ireland is in a minority among EU states in lacking any provision in law for the maintenance of elderly, infirm or indigent parents by adult children. Part I of the article, after some preliminary discussion of filial responsibility laws and select comparisons with other international jurisdictions, sets out first in summary form and then with select commentary the presence or absence of statutory or constitutional provisions for reciprocal maintenance of ascendants in the EU28. Part II examines the case of Ireland in depth, and shows that, historically, some form of such provision was the norm. Examination of indigenous archaic legal traditions, up to the pre-independence Poor Relief Act of 1838, outlines the scope and character of such provision. It further provides an account of the traditional philosophical, historical or religious bases for such claims. Considering the contemporary absence of maintenance obligations to ascendants from statute and the Constitution, it is argued that they could only be derived as an unenumerated right; it is further argued however that there is no stable basis for such derivation, and such obligations would never be compellable by a court. It is noted that, while the state commitment to support of the aged is constitutionally enshrined, correspondence shows that the obligations of descendants were assumed by the framers of the relevant Article. Given the choice not to enshrine these obligations, and the fact that no subsequent entity (most recently the Constitution Review Group) suggested their enshrinement, it is concluded that the Irish view has historically been and remains that filial obligations are a natural societal expectation but ought not to require enshrinement in law. In conclusion, it is suggested that such extralegal regulation may in some areas be more efficacious than formalised law and, on that basis, that Ireland has no pressing need to legislate for obligations to ascendants.