The Five Main Sources of Law in Ireland - Essay Example

?Topic:  "discuss the sources of irish law and show how they relate to each other". This essay will examine the five main sources of law in Ireland as well as the hierarchy within them. The Irish Constitution ( Bunreacht na hEireann) case law, statutes/legislation, EU and international law are the main sources of law in Ireland. They are important in the resolution of legal disputes. Lawyers must grasp the principles of the rule of law and the hierarchical system in which these sources are classified in order to ascertain which rule prevails when there is a conflict between these sources. These shall be discussed. Bunreacht na hEireann 1937 The Irish Constitution is the supreme source of law of Ireland although it is, arguably, not the main source in terms of quantity. The Constitution is the backbone of the Irish legal system consisting of the source of power exercised by the legislative, judicial and executive branches of government. The Irish Supreme Court and High Court are empowered to review all legislation and may strike down laws if they are inconsistent with the Irish constitution (McCutcheon et al 2008, p. 649) All laws passed by the legislature must comply with the provisions of the Constitution. Specifically, the Constitution provides that the Oireachtas must not enact any law which is repugnant to the Constitution or any provisions thereof (Article15.4.1-2) 4.1 The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof. 4.2 Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid This means legislation ranks lower than the Constitution. The Constitution provides that the institution which can interpret both the Constitution itself and all the other sources of law are the Courts of law. (Articles 34-37) As the primary source of law as well as having a higher status within the jurisdiction, all other laws must be in conformity with it. Any law that does not comply with the Constitution is invalid. The Constitution regulates the relationship between the organs of government and the citizens and those living in Ireland. (Article 6) The Constitution also guarantees certain fundamental rights and freedoms such as equality before the law, personal liberty, property rights, and freedom of religion and the importance of the family. (Articles 40-44) The Constitution is in both official languages but in the case of incompatibility it is the Irish version which will prevail as it is the first official language. (Articles 8 and 25) Legislation This is law produced through the Oireachtas. This is, arguably, the most important source of law in the modern day Ireland. Firstly, in terms of quantity, the Oireachtas produces far more legal rules than any other source. Secondly, under Article 15 of the Constitution, the Oireachtas has‘sole and exclusive’ law making power. The Irish Constitution assigns to the Oireachtas the sole law making power within the State. (Article 15.2) Every year a large number of pieces of legislation known as statutes are brought into operation as Acts of the Oireachtas. The procedure for the creation of Acts is provided for in the Constitution. Acts of the Oireachtas are known as primary legislation and must follow a particular procedure to be legitimate including going through both houses of the Oireachtas, the Dail and the Seanad. Each piece of legislation must be compatible with the Irish Constitution and the Supreme Court of Ireland may strike down legislation if it is not compliant with the Constitution. Statutes are divided into sections and parts, depending on their length. Article 25 of the Irish Constitution states that all acts must be in both official languages, Irish and English and in the case of contradiction it is the Irish version which will prevail. Each act or statute must be compatible with the Constitution, and may be referred to the Supreme Court by the President to decide whether the Bill is compatible. Legislation is categorised in a number of ways. Public Acts relate to matters affecting the general public, whereas Private Acts relate to particular individuals or institutions. In other words, Acts of the Oireachtas can be distinguished on the basis of their function. Some create new laws, but others are aimed at rationalising or amending existing legislative provisions. Consolidating legislation is designed to bring together provisions previously contained in a number of different Acts, without actually altering them. The Safety, Health and Welfare at Work Act 1989 was an example of a consolidation Act. Codifying legislation, on the other hand, seeks not just to bring existing statutory provisions under one Act but also looks to give statutory expression to common law rules. The Partnership Act 1890 and the Sale of Goods Act 1893, are good examples of this. Regulatory orders or statutory instruments are otherwise known as secondary legislation. Unlike primary legislation, these are introduced by Government ministers. The Statutory Instruments Act 1947 defines these as an “order, regulation, rule scheme or bye-law, made in the exercise of a statutory power.” They may for instance give effect to primary legislation which has already been passed and it is also how European directives become part of Irish law. This is not an unfettered power for government ministers. To ensure that they remain within the remit of the law, statutory instruments are “laid before” one or both Houses of the Oireachtas, and after a certain time if no objections are raised it becomes law. Delegated legislation is a particularly important aspect of the legislative process. As mentioned earlier own, it is law made by some person or body, usually a government minister or local authority, to whom the Oireachtas has delegated its general law making power. A validly enacted piece of delegated legislation has the same legal force and effect as the Act of the Oireachtas under which it is enacted. Also referred to as secondary or subordinate legislation, most delegated legislation is enacted by way of statutory instrument Orders are generally made in respect of a single exercise of a delegated power and are of an administrative nature. For example, a section of an Act of the Oireachtas might provide that it shall not have legal force until the relevant Minister makes a commencement order stating the date on which the Act shall become operative. Regulations are of a legislative nature and usually flesh out the matters contained in the parent statute. For example, a huge volume of Regulations have been made under the Freedom of Information Act, 1997. Rules are also legislative in nature but are usually of a procedural type. For example, the Rules of the Superior Courts, 1986, regulate the practice and procedure of the High Court and the Supreme Court. By-laws are also legislative in nature but are generally confined to the area of a local authority. For example, they are used to impose charges for refuse collection. Schemes are like orders in that they are generally of an administrative nature. They are often used where the instrument involves figures such as details of fees or charges payable for services provided by a statutory body. Common Law The Common law consists of decisions delivered by the courts over many centuries and through the doctrine of precedent these decisions have binding force. The principle of stare decisis allows lawyers to decipher the law from the vast amount of cases that have been decided. Under the doctrine of stare decisis decisions of earlier cases in superior courts will be followed by lower courts. This creates a hierarchy among the courts and also limits the amount of discretion open to judges and aids in the development of a consistent body of law. The doctrine of binding precedent is based on the notion that a decision made by a court in a case involving a particular set of conditions is binding on other courts in the same jurisdiction in later cases, where the facts are materially the same. Clearly no two set of circumstances are the same and sometimes different decisions are made when the facts are quite similar. In these situations the court can distinguish a case as having a different set of facts and therefore not applicable to the decision before it. The common law or the use of previous cases to decide the case before the court dates back to the Norman invasion of England in 1066. This was spread to Ireland in 1167 following the Norman invasion in Ireland. (H. Geoffrey Joseph 1967.p.1) The coherent system recognised today was introduced in the 19th Century. An increasingly rigid system of binding precedents was introduced after a system of hierarchy was introduced into the court system under the Supreme Court of Judicature (Ireland) Act 1877. Precedents fall generally into two categories; they may be binding or persuasive. Generally, decisions of higher courts are mandatory precedent on lower courts within that system. Within the Irish system this means that the decisions of the Supreme Court are binding on all lower courts, but decisions of the High Court are not binding on the Supreme Court. (Director of Public Prosecutions (Walsh) v. Cash) A decision of an earlier court at the same level, for example the High Court, is binding on the High Court in later decisions unless the court has good reason not to follow it. An exception to this rule is that the Supreme Court is not bound by its own previous decisions. (Attorney General v. Ryan's Car Hire Ltd) Thus, the Supreme Court can now overrule its own previous decisions in certain circumstances. In Attorney General v. Ryan’s Car Hire, supra, and State (Quinn) v. Ryan , the Supreme Court held that, although normal practice would henceforth be, as previously, that decisions of the Court would continue to be binding on itself, the Court could now depart from an earlier decision where it appeared right to do so. As an example, the Supreme Court in Carron v. McMahon overruled the earlier Supreme Court decision in Russell v Fanning. European Law Ireland became a member of the European Union as it is now known in 1973. Since that time the law of the European Union has had direct application in major parts of Irish law. This required a change in the Irish Constitution to incorporate the Treaty of Accession. Article 29 of Bunreacht na hEireann incorporates the various European Treaties into Irish law. This created a new source of law in Ireland. Article 29.4.3 facilitated European Union laws that sought to enable the internal market to function by ensuring the free movement of goods, persons, services and capital had primary legislative force in Ireland. European Union Law takes precedence in Ireland over domestic law. However this only occurs in areas that the EU has competence. Importantly this applies even when it is incompatible with Irish constitutional provisions. The EU Treaty and EU legislation, other than directives, have direct application in Ireland. This means that Irish and EU citizens can rely on Community law in their own and each other’s national legal systems. The European Community has its own sources of law. These are the Treaties, followed by secondary legislation (regulations, directives and decisions, recommendations and opinions), and case law. International Law International law comes under Article 29 of the Irish Constitution. Article 29.6 establishes that no international agreement may form part of the domestic law of the State, unless the Oireachtas has made it part of Irish law. This excludes European Union Law. Though Article 29.3 states that Ireland does accept the generally recognised principles of international law, this is generally not enforceable before Irish Courts. 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. Ireland has become party to a large number of international treaties including importantly the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR). This permits any person residing in any of the ratifying States (including Ireland) to appeal directly to the European Court of Human Rights at Strasbourg, after exhausting the national remedies. This procedure has been availed of on quite a number of occasions. Conclusively, there are five main sources of Irish law. Whereas the Constitution of Ireland is the supreme law of the land, EU law takes precedence over the Irish Constitution in its area of competence. The general principles of International law are recognised in Ireland but only when the parliament makes it part of its domestic law. Legislation alters common law but it is subordinate to the Constitution of Ireland. It is not possible to say which source is the most important. The only feasible thing to do is to explain the hierarchy of laws in Ireland. References Cases Attorney General v Ryan's Car Hire Ltd. [1965] IR 642. Carron v McMahon [1990] 1 IR239 Director of Public Prosecutions (Walsh) v Cash [2007] IEHC 108 Raymond Crotty v An Taoiseach and Others [1987] IESC 4 Russell v. Fanning [1988] I.R. 505 State (Quinn) v Ryan [1965] IR 70 Texts Byrne, Raymond; McCutcheon, J. Paul; Bruton, Claire; Coffey, Gerard (2008). McCutcheon on the Irish Legal System (5th ed.). Bloomsbury Professional. Hand, Geoffrey Joseph (1967). English law in Ireland, 1290-1324. Dublin: Cambridge University Press. Statutes (Ireland) Constitution of Ireland 1937 Freedom of Information Act, 1997 Partnership Act 1890 Rules of the Superior Courts, 1986 Safety, Health and Welfare At Work Act, 1989 Sale of Goods Act 1893 Statutory Instruments Act 1947 Supreme Court of Judicature (Ireland) Act 1877 EU European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR). Read More