FE-1 Constitutional Law 2 — Questions and Answers
Question 1: What is the constitutional significance of the Supreme Court decision in A v Governor of Arbour Hill Prison [2006]?
- A declaration that a statute is unconstitutional does not automatically invalidate all past convictions under it — the courts can limit the retrospective effect of constitutional invalidity (Correct answer)
- Every person convicted under an unconstitutional statute must be immediately released
- The Supreme Court cannot grant retrospective relief in constitutional cases
- Constitutional invalidity only applies from the date of judgment forward in all cases
Correct answer: A declaration that a statute is unconstitutional does not automatically invalidate all past convictions under it — the courts can limit the retrospective effect of constitutional invalidity
In A v Governor of Arbour Hill Prison, the Supreme Court held that a declaration of unconstitutionality does not necessarily lead to immediate release of all those previously convicted under the invalid law. The court balanced constitutional rights against the public interest.
Question 2: What does Article 50 of the Irish Constitution provide regarding pre-1937 laws?
- Laws in force immediately before the Constitution came into operation continue to apply to the extent they are not inconsistent with the Constitution (Correct answer)
- All pre-1937 laws were automatically repealed by the Constitution
- Pre-1937 laws can never be challenged on constitutional grounds
- The Oireachtas must re-enact all pre-1937 laws to give them validity
Correct answer: Laws in force immediately before the Constitution came into operation continue to apply to the extent they are not inconsistent with the Constitution
Article 50 ensures continuity by preserving pre-1937 laws (including British statutes applicable to Ireland) subject to their consistency with the Constitution. Inconsistent provisions are deemed to have been repealed.
Question 3: What is the constitutional status of international treaties in Ireland under Article 29.6?
- International agreements do not form part of domestic law unless the Oireachtas passes legislation to incorporate them (Correct answer)
- All treaties automatically become part of Irish law upon ratification
- The President has sole authority to incorporate treaties into domestic law
- EU treaties are automatically incorporated but other treaties are not
Correct answer: International agreements do not form part of domestic law unless the Oireachtas passes legislation to incorporate them
Article 29.6 provides that no international agreement shall be part of domestic law except as determined by the Oireachtas. This is the 'dualist' approach — international law and domestic law are separate systems requiring a bridge.
Question 4: What does the constitutional guarantee of equality under Article 40.1 actually provide?
- All citizens as human persons shall be held equal before the law — but the State may have due regard to differences of capacity, physical and moral, and of social function (Correct answer)
- All citizens must be treated identically in all circumstances without exception
- Equality rights apply only to citizens, not to non-citizens residing in Ireland
- Article 40.1 has been superseded by the Employment Equality Acts
Correct answer: All citizens as human persons shall be held equal before the law — but the State may have due regard to differences of capacity, physical and moral, and of social function
Article 40.1 guarantees equality before the law as human persons while allowing distinctions based on capacity and social function. This is a formal equality guarantee that does not prohibit all differential treatment, as affirmed in Quinn's Supermarket v AG [1972].
Question 5: What is the constitutional basis for judicial review of administrative decisions in Ireland?
- Article 34, which vests judicial power in the courts, and the constitutional obligation of fairness derived from natural justice principles (Correct answer)
- The Administrative Procedures Act 1975
- European Convention on Human Rights Act 2003 only
- Judicial review is a common law concept with no constitutional basis
Correct answer: Article 34, which vests judicial power in the courts, and the constitutional obligation of fairness derived from natural justice principles
Judicial review flows from Article 34's vesting of judicial power in courts and the constitutional requirement for fair procedures. The courts have held that administrative bodies exercising public power must comply with constitutional justice.
Question 6: What is the effect of a declaration of incompatibility under the European Convention on Human Rights Act 2003 in Ireland?
- The court declares the law is incompatible with the ECHR but the law remains in force — it is for the government to decide whether to amend it (Correct answer)
- The law is immediately struck down upon declaration
- The case is automatically referred to the European Court of Human Rights
- Compensation is automatically awarded to the applicant
Correct answer: The court declares the law is incompatible with the ECHR but the law remains in force — it is for the government to decide whether to amend it
Unlike constitutional invalidity, a declaration of incompatibility under section 5 of the ECHR Act 2003 does not invalidate the legislation. It is a formal statement that the law is incompatible, leaving it to the government to decide how to respond.
FE-1 Constitutional Law 2
What is the constitutional significance of the Supreme Court decision in A v Governor of Arbour Hill Prison [2006]?