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Executive, guidance on what executive power, standard of what counts as…
Executive
scope of executive power
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Barlow - case - that recognised could be blurred because executive sits in legislative and normally controls it
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Burke recent case - challenge to minister introducing calculated grades - court found breached right to home school - minister did have the power to inroduce calculated grades - the clear disregard test didn't apply when individuals personal rights infringed - apply test if ingringed by legislative branch
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remission of sentences
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Caffey 2 prisoners sought non-executive reivew of life sentences, not allowed as executive funciton
Brennan can't have fixed approach, done on a case by case basis and with consideration of judges decision
international relations
ECHR
pre 2003 act
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DPP v Gormley and White (after 2003) - ECHR - no special status but could be used as persuasive authority
post 2003 act
McD v L - when constitution clasbes with ECHR, ECHR applies at a sub-constitutional level
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organs of state perform function in matter compatible with ECHR (doesn't apply to legislature or courts)
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Clare County Council v McDonagh - 2022 case- trespass on land, injunction sought - lower courts focused on ECHR - SC - should have focused on constiution article 40.8 instead of article 8 of ECHR
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supremacy of EU law
challenging EU law
Pringle challenge to ESM, every country had to contribute to it - not every decision involving it required unanimous vote held - no requirement to have a veto, exercise of sovereignty rather than abdication - clearly defined policy any additional funds required Dail Approval
Crotty challenge SEA - introduce court of first instance and change EU council voting from unamity held - dont always need a referendum but if change is big enough required - issue 1 was fine as long as didn't change objectives of constitution - issue 2 too far - unlawful delgation of executive power (giving other foreign states ability to set foreign policies)
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primacy of EU law
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Danuqa EU law no formal jursidction to anul or invalidte national practices - although effectively does that
SPUC v Grogan any reference from ECJ interpreted in light of constitutional provisions (Kelly likely isolated to this case and won't be followed area of great sensitivty)
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war and emergency powers
Re Article 26 and emergency powers bill 1976 bill introduced allowing for 7 days detention without trial - SC presume constitutional - court able to examine if genuine emergency
Horgan v An Shannon US military refuelling at shannon airport en route to Iraq - deferential approach - for executive and oireachtas to define what involvement in war is - same approach in Dubsky for Afghanistan
O'Doherty and Waters hogan, dissenting can have emergencies outside of war but wouldn't have same constitutional privilege
constitution provisions
article 29.5.2
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StatE(Gilligland) v Governor of Mountjoy extradition treaty where ireland bore cost of extradition invalid as not laid before and approved by the Dail (if just inicidental or consequential costs would have just need to be laid before Dail)
article 29.6
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Kavanagh convicted before special criminal court, complained no reasons given why trialed there - held no individual right - Government could give affect to agreement if laid before Oireachtas
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non-reviewable
Boland sunningdale agreement court held - wouldn't interfere in international arena unless clear disregard by government of powers and duties conferred by constitution - no conflict with constitution
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cabinet confidentiality
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pre ammendment recognised in AG v Hamilton beef tribunal wanted to question former member of government - 3 to 2- cabinet meetins confidential - absolute - purpose to protect proper functioning government
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guidance on what executive power, standard of what counts as executive power
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