Irish Constitutional Law

In November 2012, the Irish electorate approved a new provision in the Constitution dedicated to children’s rights. The popular portrayal of the referendum campaign was that it was largely uncontroversial, albeit with a sting in the tail. However, this over-simplifies the reality of a political struggle that was vigorously contested for almost a decade before the actual referendum campaign. While the idea of a children’s rights amendment was never far from the political agenda during this period, the political appetite for ambitious reform ebbed and flowed. The campaign itself was successful in passing the amendment, but the outcome was nonetheless seen as a disappointing one. This paper will explore two questions regarding the genesis and evolution of the children amendment, from initial public consultations through to the referendum campaign. First, what were the political forces that sought to influence the wording of the amendment, and which side had more reason to be pleased with the final product? Second, what were the factors that caused the referendum campaign to play out in such an unsatisfactory way for the Government?

The principle of proportionality is held out as a truly international tool of constitutional law – a uniform process for assessing the legitimacy of restrictions of rights around the world. This article critiques that viewpoint, using what the author terms a comparative localist approach: looking at the detail how proportionality is used in two broadly similar jurisdictions – Canada and Ireland – that use a linguistically identical version of the principle. It examines differences in the application of the individual elements of the test in both places, and broader differences not related to any one individual part of the test. The analysis reveals that the countries apply the principle in drastically different ways. The article argues that despite the supposed constituency and uniformity that the proportionality test’s language and structure suggest, the application of the test is fundamentally and entirely contingent on local, contextual considerations and influences that will always change the way it applies. The test itself has very little fixed content. It suggests that both the international and domestic, local scholarship about proportionality underestimates the fundamentality of this problem, thinking variability not to compromise the integrity of the concept of proportionality. This is because international scholarship is too general to see the extent of these specific problems at the local level, while local scholarship attributes these problems to national misapplication rather than problems with the test in general. Only with a comparative localist analysis can these problems be laid bare. The article concludes by asking what we can make of proportionality in light of these observations, arguing that proportionality is no more than a rhetoric that stitches together divergent practices, and considering whether it should be retained in light of that reality.

This article examines the ``hidden'' ideological appeal which the 1937 Irish Constitution attempted to make by the invocation of the rural ideal, a hybrid of Irish nationalism, Catholicism and, most importantly, Gaelic romanticism. In this move, the historical legitimacy of the new state could be defined through the constitution by an appropriation of diverse symbols from an imagined past, a golden age of Gaelic unity and moral certainties. Particular attention will be paid to the image of woman as a representation of the nation in the 1937 Constitution, and to the context of Irish nationalist discourse generally, where she repeatedly appears in the archetypal forms of either mother or virgin. The predominance of the image of woman as mother in the Constitution, in contrast to her appearance in pre-independence nationalist discourse (where she regularly figured as a combination of mother, helpless maiden, seductress and destroyer) will be examined in terms of the Lacanian themes of Lack and jouissance (or enjoyment). This cultural (and legal) shift will be examined in terms of the renunciation of enjoyment inherent in this new national imagery, and in relation to the redemptive potential of the image of woman as mother; themes which appear significant in relation to post-colonial political formations generally, and to post-independence Irish political discourse in particular.

This paper, presented at the Constitution at 80 Conference at the University of Limerick in November 2017, discusses recent remedial innovations in the cases of NHV, Persona, and PC, and its implications for Irish constitutional law. It also discusses the meaning of these developments for Ireland's constitutional culture, and explores the unusual position we find ourselves in as we reach the Constitution's 80th anniversary.

For some of those who support the Lisbon Treaty, it is difficult to accept that a 53% majority of the 53% voting electorate of a country of a population of 4.4 million should, by voting to reject ratification of the Treaty, single-handedly bring to a halt a process which involves 27 countries with a combined population of almost 500 million. Fundamentally, this objection misses the distinction between the use of direct democracy or popular referendum as a stand-alone procedure for political decision-making, and the use of direct democracy or popular referendum as a constitutional amendability procedure in a functioning constitutional democracy. This blindness to the significance of the referendum is perhaps most obvious after the treaty rejection, when the political emphasis is firmly focussed on the reasons for the ‘no’ vote and on what can be done to satisfy or to mitigate the concerns raised by those reasons in order to solve the political crisis that the referendum rejection has created. This analysis often seems to miss the fact that this is not just a political crisis, but rather a constitutional crisis in which both the constitutional credibility of the Irish constitutional order and the constitutional credibility of the (putative) European constitutional order are at stake. What is needed, instead, is a deeper understanding not only of the reasons for and the significance of the ‘no’ vote, but a deeper understanding of the reasons for and the significance of the referendum itself. It is the decision to hold the referendum, rather than the decision to reject the Treaty, which needs to be defended and vindicated with greater urgency because when we truly get to grips with the constitutional significance of the referendum itself we realise that the implications of this latest ‘referendum rejection crisis’ will endure long after something is done to ‘fix’ the Irish result.

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.

This paper examines the recent Irish High Court case of Zappone and Gilligan v. Revenue Commissioners and others, a challenge to the constitutionality of the state’s interpretation of the Irish Tax Code vis-à-vis the foreign marriage of a same-sex couple and their right to marry each other under Irish law. The right to marry and the nature of marriage are undefined in the Irish Constitution. Thus, a progressive interpretation may take into account contemporary knowledge of sexuality and sexual orientation and norms of equality and non-discrimination. This paper also discusses the ‘living document’ approach to constitutional interpretation and argues that the High Court misapplied the methodology of Supreme Court Justice Murray in Sinnott v. Minister for Education, which may offer the means to interpreting the Irish Constitution as protecting the right to marry another person of the same sex.

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

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.

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.

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.

Constitutions present the opportunity to set out, in a clear and lasting way, social compromises that attempt to mediate between conflicting social groups and political goals. It is my case in this paper that, when making constitution, we should be willing to be unprincipled: that the compromises made in constitutions should be made purely pragmatically, not guided by any set of general or generalisable theories or principles, but by local, contingent, functional considerations. Their merit lies in their practical ability to temper and defuse disagreement, rather than in any abstract or principled assessment of their quality or conceptual consistency. The best approaches in practice may be inconsistent and unprincipled.

Part I argues against principled accounts of constitutionalism. Far from this being a problem, unprincipled inconsistency is a strength in allowing flexibility and adaptability. Accommodating deep disagreement may require recognising divergent values, and obfuscating (and thus deferring decision about) how they will interact. Church-state arrangements are one good example of this.

Part II explores the inconsistencies of the Irish constitutional position on religion. Despite a common view that it is either bad or incoherent, I argue that that the Irish Constitution was in fact a good and successful pragmatic compromise to mediate between two deeply divided religious groups: an overwhelmingly Catholic and very pious population would not ratify any constitution that gave insufficient respect to religion and would obstruct the pursuit of Catholic values; and a population of Protestants, north and south of the Irish-UK border, that would threaten religious peace and cooperation in the new state and frustrate unification of the island if they felt the Constitution did not protect them to some degree from Catholic majoritarianism.

The paper concludes with a call to embrace unprincipled compromises in constitutions to mediate disagreement, and write, apply, judge and reform constitutions on this basis.

Referendums, in the aftermath of Brexit and with the rise of populist movements worldwide, are viewed with great skepticism, seen as a means for populist leaders and elites to manipulate or mislead voters rather than any positive exercise in democracy. Ireland tells a somewhat different story. In Ireland, referendums to change the constitution are, increasingly, regularly held and, surveys suggests, extremely popular. They also do not display many of the worst traits that critics fear. Experts are generally respected and their views are embraced. There have not been widespread problems of fake news and manipulation of the referendum process. Prominent roles have been given to civil society groups and, more recently, citizens’ assemblies in initiation of referendums and, in the former case, in campaigning. There is evidence of voters adopting very nuanced views of the issues they are voting on. There is evidence of people being wary of uncertain and unclear proposals, even if they favor the change in principle. These are remarkably positive features, by and large avoiding the major problems suggested by critics of referendums

This is probably in spite of, not because of, Ireland’s formal referendum regulation, which is skeletal at best. It is, I suggest, primarily a function of a “referendum culture” which has developed over time and from experience, and exists and a set of unspoken cultural assumptions that guide people, politicians and campaigners and seemingly produce positive results. In this paper, I seek to illustrate certain aspects of this culture that are apparent from recent referendum campaigns, and also to point out its limitations and drawbacks. The Irish experience may suggest that some of the core critique of referendums are contingent, not fundamental: that you can have a functional referendum process with the development of a culture of referendums. But it also suggests that it might be difficult to achieve, probably requires long experience and development of culture, and is always a precarious achievement. The efficacy of this culture in Ireland may be threatened by the rise of social media, where there is, as yet, no formal rules and no effective culture around it. In this, Ireland affirms one of the core critiques of referendums: that they are poor mechanisms for occasional or ad hoc use, and should only be deployed where there is time and opportunity for distinctive political cultures around referendums to develop. Even then, there is no guaranteed recipe for success.

This article argues that, in The Barracks, John McGahern's literary production of the domestic familial space charts the fractures and partitions within that supposed unified space to reveal the anaemic passivity and alienating nausea that overcomes individuals within a prescriptive and totalising hegemony. It will discuss McGahern's decision to withdraw his first novel from publication, and the reformation of the unpublished text into The Barracks. It expressly considers McGahern's shifting of the spatial setting from the recognisable trope of the country kitchen to a Garda barracks and the impact this has on Elizabeth's position within the family home, and therefore society. This article argues that the novel's form addresses the dislocation of non-hegemonic or alternative family structures. McGahern's staging of the narrative in the unfit and fractured domestic space of the barracks subverts traditional conceptions of 'home'. This undermines the supposed impenetrable primacy of the family unit and highlights the bad faith and comely delusion of mid-century Ireland.

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.

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.

Die Ablehnung des Vertrages von Lissabon seitens der irischen
Bevölkerung am 12. 6. 2008 hat viele Fragen aufgeworfen:
nicht nur in Bezug auf die politischen Gründe der
Ablehnung, sondern auch die juristischen Gründe, weshalb
überhaupt Irland als einziger EU-Mitgliedsstaat den Vertrag
von Lissabon einem Volksentscheid unterworfen hat. Die
Antwort liegt im nationalen Verfassungsrecht, in Unterschieden,
die die juristischen Ansätze Irlands und Deutschlands
zur Übertragung von Hoheitsrechten aufweisen und im Verständnis
von Demokratie in beiden Staaten. Die unterschiedliche
Rolle des Individuums in diesem Zusammenhang kommt
in zwei Aspekten zum Ausdruck: zum einen in der Stellung,
die die Verfassung dem einzelnen Bürger bei der Entscheidung
über Fragen der supranationalen Integration einräumt,
und zum anderen in den Befugnissen, die obersten Gerichte
mit Rechtsfragen anzurufen, die die supranationale Integration
betreffen.

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 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.

This article examines the right of children to accommodation in Irish law. The legal framework regarding children's accommodation has developed mainly on foot of public interest litigation taken on behalf of children in need. Such litigation challenged an often -dysfunctional system of provision operating on inadequate and outdated legislation. Faced with this, lawyers and judges fell back on children's constitutional rights to bridge the gaps in protection. Since the coming into force of the European Convention on Human Rights Act 2003, the jurisprudence of the European Court of Human Rights  on art.3 and art.8 of the European Convention on Human Rights has also been cited in Ireland to promote children's rights to housing.

This first part of the article will focus on legislation, while the second part will deal with the Constitution and the Convention.

Alongside the unprecedented political and economic crises which hit Ireland with the collapse of its economy in 2008, were legal confrontations which tested the boundaries of its Constitution. Ireland's dualist constitutional heritage was confronted by unique challenges, borne of unprecedented forms of international legal agreement: 'Troika' conditionality, the intergovernmental European Stability Mechanism and the Treaty on Stability, Coordination and Governance in the Eurozone. For Ireland, whose Constitution is undergirded by a long established republican conception of national sovereignty, these instruments were to highlight the simplifications of traditional understandings, the unanticipated nature of many new international structures and above all, the need to renew existing understandings of constitutional sovereignty to meet the realities of 'pooled sovereignty'. This culminated in the landmark case of Thomas Pringle v Government of Ireland, where the Irish Supreme Court was forced to reflect upon the Irish Constitution's conception of sovereignty and the possibility of its alienation. In reflecting on Irish experiences of the past decade, this article argues that even in circumstances of sovereign insolvency, national constitutional orders can retain an interrogative ability to reconnect international institutions with an attentiveness to rule of law protections and democratic legitimation.

[(2015) 31(81) Utrecht Journal of International and European Law 33]

This submission traces the scope of the religious exemptions for religious organisations both under the Irish Employment Equality Acts 1998–2011 at national level and under the EU Framework Directive on Employment and Occupation, Directive 2000/78/EC of November 2000, at EU level. It will be demonstrated that the Irish religious exemptions are broader in scope than those at EU level and therefore constitute a severe limitation on the equality rights of Irish citizens falling within protected grounds of non-discrimination other than religion or belief under the EU Employment Equality Directive. Special regard is had to the limitation of the rights of Irish citizens falling within the protected ground of non-discrimination on the basis of sexual orientation. It is considered whether, by allowing overly broad exemptions to subsist beyond the exigencies of a strict proportionality test, the Irish State is in effect giving efficacy to the typified intolerance between religions organisations and the LGBT community and in so doing, contributing to the perpetuation of these intolerances in Irish society rather than their erosion.

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.

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.