FE-1 Constitutional Law 1 — Questions and Answers
Question 1: Under the Irish Constitution (Bunreacht na hÉireann 1937), what is the doctrine of constitutional review as established in Byrne v Ireland [1972]?
- The State can be sued in its own courts, abolishing the old prerogative immunity — the Constitution impliedly waived State immunity from suit (Correct answer)
- The Oireachtas has absolute sovereign power that cannot be reviewed by any court
- Constitutional review was first established by the European Convention on Human Rights Act 2003
- The President has final authority to determine the constitutionality of legislation
Correct answer: The State can be sued in its own courts, abolishing the old prerogative immunity — the Constitution impliedly waived State immunity from suit
In Byrne v Ireland, the Supreme Court held that the 1937 Constitution impliedly abolished the prerogative of State immunity from suit and that the State could be vicariously liable for the torts of its servants. This was a landmark in State liability.
Question 2: What is the significance of Article 15.2.1° of the Irish Constitution?
- It vests the sole and exclusive power of making laws for the State in the Oireachtas, preventing delegation of primary legislative power (Correct answer)
- It establishes the President as head of government
- It creates the Supreme Court as the highest court in the land
- It grants citizens the right to vote in referenda
Correct answer: It vests the sole and exclusive power of making laws for the State in the Oireachtas, preventing delegation of primary legislative power
Article 15.2.1° provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. This prevents the delegation of primary legislative power and was central to cases like Cityview Press v An Chomhairle Oiliúna [1980].
Question 3: In constitutional law, what is the 'unenumerated rights' doctrine as developed in Ryan v Attorney General [1965]?
- The Irish courts can identify and enforce personal rights not explicitly listed in the Constitution through Article 40.3, because the Constitution is a living document (Correct answer)
- Only rights explicitly listed in the Constitution are enforceable
- Rights not listed in the Constitution are entirely matters for the Oireachtas
- Unenumerated rights were abolished by the 2019 referendum
Correct answer: The Irish courts can identify and enforce personal rights not explicitly listed in the Constitution through Article 40.3, because the Constitution is a living document
In Ryan v AG, Kenny J held that Article 40.3 protects 'personal rights' including rights not explicitly enumerated in the text. The right to bodily integrity was recognised. This doctrine has been used to recognise privacy, marital rights, and other rights.
Question 4: What is the role of a constitutional referendum under Article 46 of the Irish Constitution?
- Any amendment to the Constitution requires a bill passed by both Houses of the Oireachtas, submitted to the people in a referendum, and signed by the President (Correct answer)
- The Supreme Court can amend the Constitution without a referendum
- A referendum can be initiated by a petition signed by 100,000 citizens
- Amendments can be made by a two-thirds majority of the Oireachtas without a referendum
Correct answer: Any amendment to the Constitution requires a bill passed by both Houses of the Oireachtas, submitted to the people in a referendum, and signed by the President
Article 46 requires that any constitutional amendment bill be passed by both Houses of the Oireachtas, submitted to a referendum of citizens, and if approved, signed by the President. The people, not the courts or parliament alone, are sovereign.
Question 5: What is the principle of proportionality in the context of Irish constitutional rights?
- Where a law restricts a constitutional right, it must be rationally connected to a legitimate objective and restrict the right no more than necessary to achieve that objective (Correct answer)
- All constitutional rights are absolute and cannot be restricted under any circumstances
- Rights can be restricted whenever the Oireachtas deems it necessary without any judicial review
- Proportionality only applies to property rights under Article 43
Correct answer: Where a law restricts a constitutional right, it must be rationally connected to a legitimate objective and restrict the right no more than necessary to achieve that objective
Proportionality, as applied in cases like Heaney v Ireland [1994], requires that restrictions on constitutional rights pursue a legitimate aim, be rationally connected to that aim, impair the right as little as possible, and that effects are proportionate to the objective.
Question 6: Under Article 34 of the Irish Constitution, what courts constitute the courts of first instance?
- The High Court and the Circuit Court and District Court as courts of limited jurisdiction established by law (Correct answer)
- The High Court only
- The Supreme Court and Court of Appeal
- The Special Criminal Court exclusively
Correct answer: The High Court and the Circuit Court and District Court as courts of limited jurisdiction established by law
Article 34 establishes courts of first instance including the High Court (with full original jurisdiction) and courts of limited jurisdiction (the Circuit Court and District Court) established by the Oireachtas.
FE-1 Constitutional Law 1
Under the Irish Constitution (Bunreacht na hÉireann 1937), what is the doctrine of constitutional review as established in Byrne v Ireland [1972]?