Law of the Republic of Ireland: Difference between revisions
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[[File:Statutes at large ireland.jpg|thumb|right|The law now in force in Ireland dates back in excess of 800 years]] |
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The '''law of the Republic of Ireland''' consists of constitutional, statute and common law. The highest law in the Republic is the [[Constitution of Ireland]], from which all other law derives its authority. The Republic has a [[common law|common-law]] [[legal system]] with a written constitution that provides for a parliamentary democracy based on the [[Westminster system|British parliamentary system]],<ref>{{cite book |title=Ireland at the polls, 1981, 1982, and 1987: a study of four general elections |first1=Howard Rae |last1=Penniman |first2=Brian |last2=Farrell |publisher=American Enterprise Institute for Public Policy Research |year=1987 |page=219 |url=http://books.google.com/books?id=PaS-PdCzF_4C&pg=PA219&dq=ireland+%22british+parliamentary+system%22&lr=&cd=11#v=onepage&q=&f=false |accessdate=29 January 2010 |quote=The Irish adopted the British parliamentary system at time when...}}</ref> albeit with a popularly elected president, a [[separation of powers]], a developed system of constitutional rights and [[judicial review]] of primary legislation.<ref>{{cite book |title=Politics in the Republic of Ireland |editor1-first=John |editor1-last=Coakley |editor2-first=Michael |editor2-last=Gallagher |publisher=Routledge |edition=4th |year=2005 |place=Oxon |page=84}}</ref> |
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The sources of Irish law reflect [[History of Ireland|Irish history]] and the various parliaments whose law affected the country down through the ages. Notable omissions from the list include laws passed by the [[First Dáil]] and [[Second Dáil]], and the [[Brehon Laws]] which were traditional Celtic laws, the practice of which was only finally wiped out during the [[Cromwellian conquest of Ireland]]. These latter laws are void of legal significance and are of historical interest only. |
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==Constitutional law== |
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{{Life in the Republic of Ireland}} |
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{{Main|Constitution of Ireland}} |
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The Irish Constitution was enacted by a popular [[plebiscite]] held on 1 July 1937, and came into force on 29 December of the same year.<ref>{{cite journal |title=Personal Rights under the Irish Constitution |last1=Heuston |first1=Robert F. |volume=11 |journal=U. Brit. Colum. L. Rev. |page=294 |year=1977 |url=http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/ubclr11&div=21 |accessdate=19 February 2011}}</ref> The Constitution is the cornerstone of the Irish legal system and is held to be the source of power exercised by the legislative, judicial and executive branches of government. The Irish [[Supreme Court of Ireland|Supreme Court]] and [[High Court (Ireland)|High Court]] exercise judicial review over all legislation and may strike down laws if they are inconsistent with the constitution.<ref>McCutcheon (2008, p. 649)</ref> As such the Republic's written constitution is the truly distinguishing characteristic of the Irish legal system when compared to its English cousin. |
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The Constitution can only be amended by referendum. A proposal to amend the Constitution is introduced into [[Dáil Éireann]] (the lower house of parliament) as a bill and if passed by the Dáil, and passed or deemed to have been passed by the [[Seanad Éireann|Senate]] (the upper house), is put to the people. Only [[Irish nationality law|Irish citizens]] resident in the state may vote. There is no threshold for such referendums and a simple majority of voters is sufficient for a proposal to be passed. Once passed by the people the [[President of Ireland|President]] signs the referendum bill into law. As of November 2011, there have been 33 such referendums: 23 of which were approved by the people and 10 of which were rejected. The constitution was also amended twice during an initial transitional period of three years following the election of the first President of Ireland, when amendments could be made without recourse to the people. |
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conor is a poo |
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==Secondary legislation== |
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Notwithstanding the declaration in the 1937 constitution that the Oireachtas is to be "the sole and exclusive" legislature, it has long been held that it is permissible for the Oireachtas to delegate it law-making power to other bodies as long as such delegated legislation does not exceed the "principles and policies" set out in the relevant authorising statute.<ref>Cityview Press v An Chomhairle Oiliúna [1980] IR 381: "In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself."</ref> |
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All instances of delegated legislation in the Republic are known as statutory instruments,<ref>See section 1 of the ''[http://www.irishstatutebook.ie/1947/en/act/pub/0044/print.html Statutory Instruments Act, 1947]'' which defines a "statutory instrument" as any "order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute."</ref> although only a small sub-set of these are numbered as statutory instruments and published by the Stationery Office.<ref>These being the ones to which—in the language of the ''Statutory Instruments Act''—the Act "primarily applies".</ref> This latter subset is composed of statutory instruments which are required to be laid before the Oireachtas or which are of general application. |
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In addition, a body of charters, statutory rules and orders and other secondary legislation made prior to independence in 1922 continues to be in force in Ireland insofar as such legislation has not been revoked or otherwise ceased to be in force. |
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==Common law== |
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[[image:fourcourtsquays.JPG|thumb|right|The [[Supreme Court of Ireland]] sits in the [[Four Courts]] building in Dublin.]] |
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[[Ireland]] was the subject of the first extension of England's [[common law]] legal system outside [[Great Britain]]. While in England the creation of the common law was largely the result of the assimilation of existing customary law, in Ireland the common law was imported from England supplanting the customary law of the Irish.<ref>{{cite book |title=English law in Ireland, 1290-1324 |first1=Geoffrey Joseph |last1=Hand |publisher=Cambridge University Press |year=1967 |place=Dublin |page=1}}</ref> This, however, was a gradual process which went hand-in-hand with English (then British) influence in Ireland. |
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As with any common-law system, the Irish courts are bound by the doctrine of ''[[stare decisis]]'' to apply clear precedents set by higher courts and courts of co-ordinate jurisdiction. The main exception to this rule being that the Supreme Court has declared itself not to be bound by its own previous decisions.<ref>Attorney General v Ryan's Car Hire Ltd. [1965] IR 642.</ref> |
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While the doctrine clearly means that the present High Court is bound by decision of the present Supreme Court,<ref>Director of Public Prosecutions (Walsh) v Cash [2007] IEHC 108.</ref> it is not altogether clear whether the decisions of courts which previously performed the function of courts of last final appeal in Ireland — such as the British House of Lords — bind the present High Court. It has, however, been stated by McCarthy J in ''Irish Shell v. Elm Motors'' that "[i]n no sense are our Courts a continuation of, or successors to, the British courts."<ref>Irish Shell v. Elm Motors [1984] IR 200</ref> |
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Post-independence judgments of the British courts, and all judgments of the American and Commonwealth courts are of persuasive value only and do not bind the Irish courts. |
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==European Union law== |
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{{Main|European Communities Act 1972 (Ireland)|l1=European Communities Act 1972}} |
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The ''European Communities Act 1972'', as amended, provides that [[treaties of the European Union]] are part of Irish law, along with directly effective measures adopted under those treaties. It also provides that government ministers may adopt statutory instruments in order to implement European Union law and that as an exception to the general rule such statutory instruments have effect as if they were primary legislation. |
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==International law== |
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Ireland is a [[dualist]] state and [[treaties]] are not part of Irish domestic law unless [[incorporation (international law)|incorporated]] by the [[Oireachtas]].<ref>{{cite book |title=Dualism, Domestic Courts, and the Rule of International Law |last1=de Londras |first1=Fiona |work=The Rule of Law in Comparative Perspective |first1-editor=Mortimer |editor1-last=Sellers |publisher=Springer Sciences+Business Media B.V. |year=2010 |isbn=978-90-481-3748-0 |page=228}}</ref> An exception to this rule might well be the provision in the constitution which says that "Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States." However while this provision has been held to assimilate the doctrine of sovereign immunity into domestic law,<ref>See: ''Canada v. Employment Appeals Tribunal'' [1992] 2 IR 485.</ref> the Supreme Court have held that the provision is not capable of conferring rights on individuals.<ref>See: In ''Re Ó Laighléis'' [1960] IR 93 and ''Kavanagh v. Governor of Mountjoy Prison'' [2002] 3 IR 123.</ref> |
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The dualist approach in international law contained in the Irish Constitution allows the state to sign and ratify treaties without incorporating them into domestic law. Thus while Ireland was one of the first states in Europe to ratify the [[European Convention on Human Rights]]<ref>It was in fact the fifth to do so on the 25 February 1953 [http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=27/02/2011&CL=ENG].</ref> it was one of the last to incorporate the Convention into domestic law.<ref>{{cite web |title=European Convention on Human Rights Act 2003 |publisher=Irish Human Rights Commission |url=http://www.ihrc.ie/enquiriesandlegal/europeanconvent/ |accessdate=27 February 2011}}</ref> And when done it was not directly incorporated into Irish law but given indirect, sub-constitutional, interpretative incorporation.<ref>{{cite book |title=ECHR Act 2003: A Preliminary Assessment of Impact |first1=Donncha |last1=O'Connell |first2=Siobhan |last2=Cummiskey |first3=Emer |last3=Meeneghan |first4=Paul |last4=O'Connell |publisher=Dublin Solicitors Bar Association and Law Society of Ireland |place=Dublin |year=2006 |isbn=978-0-902027-37-4 |page=10 |url=http://www.nuigalway.ie/law/documents/publications/ECHR%20report%2018%20Oct%2006.pdf |accessdate=27 February 2011}}</ref> |
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In ''[[Crotty v. An Taoiseach]]'', the Irish Supreme Court asserted a power to review the constitutionality of treaties signed by the state, such that the government could be prevented from signing up to international agreements which would be contrary to the constitution. A ruling which has resulted in ''ad hoc'' amendments to the constitution in order to permit the state to ratify treaties that might otherwise have been contrary to the constitution. |
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==See also== |
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* [[Legal systems of the world]] |
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* [[List of Acts of the Oireachtas]] |
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* [[Courts of the Republic of Ireland]] |
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** [[Supreme Court (Ireland)|Supreme Court]] |
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** [[High Court (Ireland)|High Court]] |
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** [[Special Criminal Court]] |
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* [[Northern Ireland law]] |
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==Further reading== |
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* {{cite book |title=McCutcheon on the Irish Legal System |first1=Raymond |last1=Byrne |first2=J. Paul |last2=McCutcheon |first3=Claire |last3=Bruton |first4=Gerard |last4=Coffey |edition=5th |publisher=Bloomsbury Professional |year=2008}} |
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==References== |
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{{Reflist}} |
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==External links== |
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===Government=== |
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* [http://www.irishstatutebook.ie Irish Statute Book] |
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* [http://acts.oireachtas.ie/index.html Acts of the Oireachtas in Irish and English] |
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* [http://www.attorneygeneral.ie Office of the Attorney General of Ireland] |
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===Other=== |
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* [http://www.irishlaw.org Irish Law Site at UCC] |
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* [http://www.nyulawglobal.org/globalex/ireland1.htm GlobaLex - Guide to Irish Law, 2010] |
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* [http://www.llrx.com/features/irish.htm LLRX.com - Guide to Irish Law, 2001] |
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* [http://www.ucc.ie/law/irlii/index.php The Irish Legal Information Institute] |
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* [http://www.bailii.org The British and Irish Legal Information Institute] |
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{{Europe topic|Law of}} |
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{{DEFAULTSORT:Law Of The Republic Of Ireland}} |
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[[Category:Law in the Republic of Ireland| ]] |
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[[Category:Republic of Ireland]] |
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[[fr:Droit irlandais]] |
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Revision as of 10:43, 18 February 2013
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