Law of the Republic of Ireland
Encyclopedia
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
legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system
, albeit with a popularly elected president, a separation of powers
, a developed system of constitutional rights and judicial review
of primary legislation.
The sources of Irish law reflect 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 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.
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 Senate
(the upper house), is put to the people. Only 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
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.
. Acts of the Oireachtas are split into sequentially numbered sections and may be cited by using a short title which gives the act a title roughly based on its subject matter and the year in which it was enacted. While the Oireachtas is bicameral, the upper house, the Senate, has little power which at most allows the Senate to delay rather than veto legislation.
Article 50 of the Constitution of Ireland
carried over all laws that had been in force in the Irish Free State
prior to its coming into force on 29 December 1937. A similar function had been been fulfilled by Article 73 of the Constitution of the Irish Free State
, which carried over all legislation that had in force in Southern Ireland
. As a result, while the Irish state has been in existence for less than one hundred years, the statute book stretches back in excess of 700 years and includes law passed by the following:
All instances of delegated legislation in the Republic are known as statutory instruments, although only a small sub-set of these are numbered as statutory instruments and published by the Stationery Office. This latter subset is composed of statutory instruments which are required to be laid before the Oireachtas or which are of general application.
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. This, however, was a gradual process which went hand-in-hand with English (then British) influence in Ireland.
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.
While the doctrine clearly means that the present High Court is bound by decision of the present Supreme Court, 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."
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.
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.
. 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, the Supreme Court have held that the provision is not capable of conferring rights on individuals.
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
it was one of the last to incorporate the Convention into domestic law. And when done it was not directly incorporated into Irish law but given indirect, sub-constitutional, interpretative incorporation.
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.
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
, from which all other law derives its authority. The Republic has a common-law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
, albeit with a popularly elected president, a separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, a developed system of constitutional rights and judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of primary legislation.
The sources of Irish law reflect Irish history
History of Ireland
The first known settlement in Ireland began around 8000 BC, when hunter-gatherers arrived from continental Europe, probably via a land bridge. Few archaeological traces remain of this group, but their descendants and later Neolithic arrivals, particularly from the Iberian Peninsula, were...
and the various parliaments whose law affected the country down through the ages. Notable omissions from the list include laws passed by the first and second Dáil, and the Brehon Laws
Brehon Laws
Early Irish law refers to the statutes that governed everyday life and politics in Early Medieval Ireland. They were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence in the 13th century, and survived into Early Modern Ireland in parallel with English law over the...
which were traditional Celtic laws, the practice of which was only finally wiped out during the Cromwellian conquest of Ireland
Cromwellian conquest of Ireland
The Cromwellian conquest of Ireland refers to the conquest of Ireland by the forces of the English Parliament, led by Oliver Cromwell during the Wars of the Three Kingdoms. Cromwell landed in Ireland with his New Model Army on behalf of England's Rump Parliament in 1649...
. These latter laws are void of legal significance and are of historical interest only.
Constitutional law
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. 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 and High Court exercise judicial review over all legislation and may strike down laws if they are inconsistent with the constitution. As such the Republic's written constitution is the truly distinguishing characteristic of the Irish legal system when compared to its English cousin.The Constitution can only be amended by referendum. A proposal to amend the Constitution is introduced into Dáil Éireann
Dáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
(the lower house of parliament) as a bill and if passed by the Dáil, and passed or deemed to have been passed by the Senate
Seanad Éireann
Seanad Éireann is the upper house of the Oireachtas , which also comprises the President of Ireland and Dáil Éireann . It is commonly called the Seanad or Senate and its members Senators or Seanadóirí . Unlike Dáil Éireann, it is not directly elected but consists of a mixture of members chosen by...
(the upper house), is put to the people. Only Irish citizens
Irish nationality law
Irish nationality law is the law of the Republic of Ireland governing citizenship. A person may be an Irish citizen through birth, descent, marriage to an Irish citizen or through naturalisation. Irish nationality law is currently contained in the provisions of the Irish Nationality and Citizenship...
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
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
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.
Statute law
Modern-day statute law is made by the bicameral National Parliament — more commonly know by its Irish name, the OireachtasOireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
. Acts of the Oireachtas are split into sequentially numbered sections and may be cited by using a short title which gives the act a title roughly based on its subject matter and the year in which it was enacted. While the Oireachtas is bicameral, the upper house, the Senate, has little power which at most allows the Senate to delay rather than veto legislation.
Article 50 of the Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
carried over all laws that had been in force in the Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
prior to its coming into force on 29 December 1937. A similar function had been been fulfilled by Article 73 of the Constitution of the Irish Free State
Constitution of the Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State Act 1922, of which it formed a part...
, which carried over all legislation that had in force in Southern Ireland
Southern Ireland
Southern Ireland was a short-lived autonomous region of the United Kingdom established on 3 May 1921 and dissolved on 6 December 1922.Southern Ireland was established under the Government of Ireland Act 1920 together with its sister region, Northern Ireland...
. As a result, while the Irish state has been in existence for less than one hundred years, the statute book stretches back in excess of 700 years and includes law passed by the following:
- English and British statutes
- the King of England (1066–1241)
- the Parliament of EnglandParliament of EnglandThe Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...
(1241–1706) - the Parliament of Great BritainParliament of Great BritainThe Parliament of Great Britain was formed in 1707 following the ratification of the Acts of Union by both the Parliament of England and Parliament of Scotland...
(1707–1799)
- Pre-union Irish statutes
- the Parliament of IrelandParliament of IrelandThe Parliament of Ireland was a legislature that existed in Dublin from 1297 until 1800. In its early mediaeval period during the Lordship of Ireland it consisted of either two or three chambers: the House of Commons, elected by a very restricted suffrage, the House of Lords in which the lords...
(until 31 December 1799)
- the Parliament of Ireland
- Statutes of the United Kingdom of Great Britain and Ireland
- the Parliament of the United KingdomParliament of the United KingdomThe Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, limited to those statutes which on their terms applied to Ireland (1 January 1801 to 5 December 1922)
- the Parliament of the United Kingdom
- Statutes of independent Ireland
- the Oireachtas of the Irish Free StateOireachtas of the Irish Free StateThe Oireachtas of the Irish Free State was the legislature of the Irish Free State from 1922 until 1937. It was established by the 1922 Constitution of Ireland which was based from the Anglo-Irish Treaty...
(6 December 1922 to 28 December 1937) - the present Oireachtas (from 29 December)
- the Oireachtas of the Irish Free State
Secondary legislation
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.All instances of delegated legislation in the Republic are known as statutory instruments, although only a small sub-set of these are numbered as statutory instruments and published by the Stationery Office. This latter subset is composed of statutory instruments which are required to be laid before the Oireachtas or which are of general application.
Common law
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
was the subject of the first extension of England's common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal system outside Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
. 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. This, however, was a gradual process which went hand-in-hand with English (then British) influence in Ireland.
As with any common-law system, the Irish courts are bound by the doctrine of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
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.
While the doctrine clearly means that the present High Court is bound by decision of the present Supreme Court, 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."
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.
European Union law
The European Communities Act 1972, as amended, provides that treaties of the European UnionTreaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives...
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.
International law
Ireland is a dualist state and treaties are not part of Irish domestic law unless incorporated by the OireachtasOireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
. 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, the Supreme Court have held that the provision is not capable of conferring rights on individuals.
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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
it was one of the last to incorporate the Convention into domestic law. And when done it was not directly incorporated into Irish law but given indirect, sub-constitutional, interpretative incorporation.
In Crotty v. An Taoiseach
Crotty v. An Taoiseach
Crotty v. An Taoiseach was a legal action taken in 1987 in the High Court of Ireland and in the Supreme Court on appeal by Raymond Crotty, historian and economist against the Irish Government...
, 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.
See also
- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- List of Acts of the Oireachtas
- Courts of the Republic of IrelandCourts of the Republic of IrelandThe Courts of the Republic of Ireland consist of the Supreme Court, the Court of Criminal Appeal, the High Court, the Circuit Court and the District Court. The courts apply the laws of Ireland. Ireland is a common law jurisdiction and trials for serious offences must usually be held before a jury...
- Supreme CourtSupreme Court (Ireland)The Supreme Court of Ireland is the highest judicial authority in the Republic of Ireland. It is a court of final appeal and exercises, in conjunction with the High Court, judicial review over Acts of the Oireachtas . The Court also has jurisdiction to ensure compliance with the Constitution of...
- High Court
- Special Criminal CourtSpecial Criminal CourtThe Special Criminal Court is a juryless criminal court in the Republic of Ireland which tries terrorist and organized crime cases. Article 38 of the Constitution of Ireland empowers the Dáil to establish "special courts" with wide-ranging powers when "the ordinary courts are inadequate to secure...
- Supreme Court
- Northern Ireland lawNorthern Ireland lawNorthern Ireland law refers to the legal system of statute and common law operating in Northern Ireland since Northern Ireland was established as a separate jurisdiction within the United Kingdom in 1921.-Background:...
Government
- Irish Statute Book
- Acts of the Oireachtas in Irish and English
- Office of the Attorney General of Ireland