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Challenging constitutionality of an act - Coggle Diagram
Challenging constitutionality of an act
locus standi
AG has relator capacity
Companies
public interest standing
Irish Penal Reform v Gorvernor of Mountjoy
poor conditions in prison, 2 prisoners with psychiatric illness and one company tried to challenge- court held - prisoners could make broad arguments otherwise system deficiencies unchallenged, company could bring challenge-
bona fide interest and other prisoners vulnerable and couldn't mount a challenge
Friends of Irish Environment v An Bord Pleanala
challenge to climate act on 2 separate issues, not granted standing on either first was rights based issue and second was ultra vires -
indivdiuals could bring claims themselves
SPUC v Coogan
attempt to restrain publication of abortion material - court held anyone with bona fide interest and concern in protecting unborn had standing
unincorporated bodies
unlikely to be granted standing
Construction Industry Federation v Dublin City Council
an unincorporated trade association- held no reason members couldn't bring case themselves, in some case could though
Garda Representative
no standing as need real person to assess damages
protecting own rights
Digital Rights Ireland
challenged retention of data claiming breach of privacy and marital privacy - held - not entitled to argue on breach of marital privacy could argue breach of privacy
Iarnrod Eireann v Ireland
challenged act, had standing as had property rights to protect
individuals
Mohan v Ireland
legislation requiring gender quotas for parites or lose funding- SC - had standing - more than one person can have standing - act impacted his non selection - FF better but not only ones who can challenge
Zalewski
challenged constitutionality of the
WRC
- SC had standing - had a hearing pending and was challenging framework of WRC
Cahill v Sutton
challenged statute of limitation (3 years even if didn't know within the 3 years) - held - not such a person always aware - court
doesnt want to deal with hypotheticals
- exceptions if litigant part of a group and others can't speak for themselves
reasons
don't want 1 litigious person being an obstructionist
exceptions arise if in interest of justice
don't want to run theoretical or abstract cases
don't want to unnecessarily strike down legislation
when can you take action
uncommenced legislation
*O'Cleighigh v Ministe
r* challenged act passed but not commenced - allowed challenge due to already being passed by the Dail (Kelly also its irrervisible effects
Wireless Dealers Association v Fair Trade Association
no ability to challenge a bill
apprehended injury
don't have to wait for rights to be breached
East Donegal Co-op
rights are intended to be protected and that includes prevention and redress - in this case favoured constitutional interpretation over non-constitutional interpretation
(double construction rule
)
Osmanovic v DPP
being charged is sufficient
don't have to wait for conviction
Douglas
act of being charged gives standing
exception
Constitutional imperative
Crotty
SC held could bring case as no other litigant more affected but
would affect everybod
y
McKenna 2
challenged government spending money on one side of a referendum
Riordan
challenging if Taoiseach and Tanaiste could leave the country at the same time - held - had standing effected everyone equally
Grace v An Bord Pleanala
challenge to wind farm - had standing due to
proxmity to area and bona fide interest
in the matter
Waxy O'Connor v Judge Riordan
pub convicted due to lack of due diligence - SC heard case
important beyond its own facts
presumption that statute is constitutional
double construction rule
McDonald v Bord na gCon
Greyhound act didn't expressly require fair procedures - court held - must act as if fair procedures implied -
inquiry done with fair procedures in mind
if can be read more than one way go with constitutiona
East Donegal Co-op
power to minsiter to issue licence at his discretion and attach conditions as thinks proper - constitutionality presumed
State (Sheehin) v Kennedy
laws passed pre 1937 presumed compliant with old constitution not against current one
ESB v Gormely
if passed pre 1937 but sufficient amendments made presumption could arise
Pigs Marketing Board v Donnelly
court has to presume act constitutional unless contrary established
rule of avoidance
Murphy v Roche
should restrain on engaging with constitutional question
if not necessary and avoid commenting
M v An Bord Uchtala
challenged adoption order on failure to comply with statutory requirements and constitutionality of the act - court - r
esovle on non-constitutional grounds don't put to test unnecessarily
courts prefer to not deal with questions of constitutionality
Grace v Ireland
no locus standi as hadn't exhausted all non-constitutional remedies
acts presumed constitutional up to challenger to prove likewise
O'Doherty & Waters v Minister for Health
-challenging legislation responding to Covid - their assertion that Covid was no real threat required a lot of evidence - applicants hadn't put forward any evidence that states response was unconstitutional - would evidence always be required - court said no - never argued that state acted disproportionally, always argued Covid not serious (court can't get involved there) on the case they made couldn't be successful -
burden of proof always on challenger
Donnelly
presumption that it is constiutional
remedies
Declare unconstitutionality
Effect of declaration of unconstitutionaly
Murphy v AG
act meant married couple paid more tax, never constitutional but only
entitled to recover from year first objected and for other couples if they brought a challenge
A v Governor of Harbour Hill
offence of statutory rape struck down due to no defence of honest belief - HC said continued detention unlawful - SC - had pleaded guilty, even if had challenged at time had no standing - no honest belief of persons age -
overriding interests of common good also relavent
NHV
State (Byrne) v Frawley
- jury selection system found to be unconstitutional, not everyone had right to be retrialled - held - consented to it at the time not able to take advantage of it now
Damache
if garda issues search warrant has to be an independent decision maker
DPP v Cunningham and DPP v Kavanagh
if
challenged warrant at trial
even if not on same grounds as Damache entitled to rely on Damache
DPP v Hughes
hadn't raised anything on Damache grounds and pleaded guilty
DPP v Liam Bolger
contested the case but not the warrant, have to engage on the issue
if declared unconstitutional, than unconstitutional from date of enactment
always unconstitutional since 1937
Blacke v AG
could be unconstitutional due to change in circumstances
PP v Judges of Dublin Circuit Court
2019 case- school teacher sex with student, charged under 1885 act, repealed in 1993, offences occured in 1970, - SC permitted appeal on some grounds - also said constitution living document can change in different eras to reflect societal values
Murphy v AG
void ab initiio never had force of law
deferred or suspended declaration
PC v Minister
concerned
removal of social welfare entitlements
, court declaration could cause problems, allowed time for Oireachtas to change it - not for court to change legislation
Agha
struck down act but deferred declaration although SC overturned strike down
NHV
struck down act, but
deferred making declaration to state to allow state put a more proportioante restriction in
- adjourned 4 months giving time for Oireachtas to make policy decisions
Dr David Kenny
- allows dialogue, not simply invalidating law and leave it to legislator to clean up mess - invite legislator to rewrite law so it is constitutional
Persona Digital Telephony v Minister
if court strikes down could lead to
power vacumn,
gave time for Oireachtas to fix it
judicial review
non-justiciability - Oireacthas and committees
articles 15.10, 15.12, 15.13
executive
non-justiciability
Jus Tertii
Reilly v Judge Patwell
challenge strict liability of litter act, no defence of reasonable care provided, court held, you did not exercise reasonable care and under
Jus tertii
do not have standing
Kennedy v DPP
convicted failure to provide breath test, challenged constitutionality as no defence of inability or incapacity - couldn't raise those arguments even if were available
Mootness
Lofinmackin v Minister for Justice
decision to deport a father, revoked after ECJ decision - held now moot court
should not consider moot points -
no actual effect - even if costs still to be determined not sufficient to sustain proceedings
PV v Court Services
brought claim in DC initially, succeeded in HC quicker - case in DC now moot
Goold v Collins
husband had protection order against wife, later reconciled - held -
no longer any legal dispute - judicial resources scares,
legal system adversaria, court senstivie to effectiveness of judicial intervention
Conlon v Legal Aid
choose not to proceed with claim meant his argument with legal aid over denial of aid now moot
issue affecting litigant can be determined on non-constitutional issue or has ceased
exceptions (flexible approach)
in public interest
Okunade v Minister
judicial review decision to refuse refugee status and deport -
likely to arise again
so despite being moot listened to it
likely to arise again
if escape review
Condon v Minister for Labour
such as
temporary legislation
Test case
If HC declared it unconstitutional
O'Brien v PIAB
statutory function likely to arise again
deference
some matters not for courts to review
hands off approach and often defers to legisaltor
Madigan v AG
legislature has
significant latitutde in organising and directing the affairs of the state
moral questions
MD
challenge to different tretment of offenders based on genders for legislature
Fleming
not for court to get involved in
euthanasia
don't want to impose personal views on important questions
policy decisions
O'Doherty & Waters
response to covid up legislature and executive
Constitutional Lacunae
if court strikes down act won't benefit applicant
Somjee
would receive no benefit if declared unconstitutional - this is fatal to it
Byrne
oberstown case, even if struck down act wwouldn't carry any benefitp went with remedy to treat applicant as if prison rules applied to him