Irish Supreme Court – Page 2

In Brown v Allen 344 US 443, 540 (1953), Robert H Jackson, Chief Prosecutor at Nuremburg and Associate Justice of the Supreme Court of the United States said of that Court:

We are not final because we are infallible, but we are infallible only because we are final.

Supreme Courts’ quality of finality, on matters of the gravest import, fascinates observers; and, giving us a chance to go behind that finality closer to home, Ruadhán Mac Cormaic (@RuadhanIT) has an excellent series of articles on the Irish Supreme Court in the Irish Times. Here (with some added links and a few comments) is a flavour of his coverage over the last few days.

Inside Ireland’s Supreme Court: “… Nearly all judges resist labels such as liberal or conservative, pro-State or pro-plaintiff and dismiss attempts to extrapolate from their background a predisposition to decide a case a certain way. …”. Nevertheless, it is a persistent trope amongst watchers of the US Supreme Court (and of the UK courts, though perhaps less so), and it is likely to become so for the Irish Supreme Court as well, if the planned Court of Appeal allows the Supreme Court to become more of a constitutional court in the mo(u)ld of its US counterpart.…

Unconstitutional expenditures – VII – The judgments in McCrystal, Part 2

14 December, 20124 February, 2013

| 1 Comment

| Irish cases, Irish Law, Irish Supreme Court

In McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012), the Supreme Court’s per curiam established that the respondents had expended public moneys on a booklet, website, and advertising campaign in relation to a referendum in a manner which was not fair, equal, impartial or neutral. In judgments handed down on 11 December 2012 by Denham CJ, Murray J, Fennelly J, and O’Donnell J (Hardiman J concurring with all four) the Court gave reasons for the conclusions which had been expressed in the per curiam. My analysis of these judgments is in two parts. The first part, in my previous post, considered some of the issues raised in the judgments. The second part, in this post, considers the impact which those judgments have on the issues raised in my earlier posts (I, II, III, IV, V, VI).

From my previous post, it is clear that, in McCrystal, the Supreme Court made two main findings. First, where the Government acts in clear disregard of the Constitution, then the Courts can intervene. Second, arising from McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), there is an obligation upon the Government, if it wishes to expend money providing information in relation to a referendum, to do so in a manner that is fair, equal, impartial and neutral.…

Unconstitutional expenditures – VI – The judgments in McCrystal, Part 1

13 December, 20124 February, 2013

| 4 Comments

| Irish cases, Irish Law, Irish Supreme Court

CHILDRENSREFERENDUM-300x217 Regular readers of this blog will be familiar with my series of five posts so far (I, II, III, IV, V) on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants’ expenditure of public moneys on a website, booklet and advertisements in relation to the children’s referendum was in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In the per curiam on 8 November last, the Court announced its decision, and said that judgments would be delivered on 11 December 2012. And, indeed, they duly were – judgments were delivered by Denham CJ, Murray J, Fennelly J, and O’Donnell J; Hardiman J concurred with all four. These judgments have already been the subject of a post by Paul McMahon on Ex Tempore blog, as well as a great deal of media comment (98fm | Belfast Telegraph | Irish Examiner | Irish Independent here, here, here and here | Irish Times here, here, here, here and here | RTÉ | TV3).…

Unconstitutional expenditures – V – An update on remedies for breach of the McKenna prohibition

20 November, 20124 February, 2013

| 5 Comments

| Irish cases, Irish Law, Irish Supreme Court

In four previous posts, I looked at the Supreme Court’s per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum, in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In particular, in the fourth, I considered the range of remedies which might be available for breach of that prohibition. I noted in that post that Part IV of the Referendum Act, 1994 (also here) provides for Referendum Petitions to challenge the conduct of a referendum. It comes as no surprise to learn that this procedure has now been invoked against the outcome of the referendum held on 10 November 2012 (Irish Examiner | Irish Independent | Irish Times | RTÉ | TheJournal.ie here and here | TV3). I expect the application to fail, but it has many interesting features which give it a fighting chance.

According to section 40 of the Act (also here), the referendum returning officer must aggregate the returns from all of the local returning officers, prepare and sign a provisional referendum certificate recording the votes and outcome in the referendum, and publish a copy of that provisional certificate in Iris Oifigiúil (the twice-weekly official Irish State gazette).…

Indentured servitude and a power akin to undue influence – contract reasoning in Pringle (ESM) and Sebelius (Obamacare)

15 November, 201228 November, 2012

| 1 Comment

| Contract, Irish Supreme Court, US Supreme Court

Occasionally, Contract Law principles infiltrate into constitutional discourse. Two recent Supreme Court decisions illustrate the point, one from Ireland, the other from the US. Each relates to an issue of major political controversy and constitutional contention; and, in each, contractual reasoning is at the heart of a significant aspect of the judgments.

In the Irish case of Pringle v Government of Ireland [2012] IESC 47 (19 October 2012) (noted here), the Supreme Court upheld the High Court’s decision to refer to the Court of Justice of the European Union various questions of EU law relating to the Treaty establishing the European Stability Mechanism (the ESM Treaty). In considering whether the ESM Treaty abrogated Irish sovereignty (in Articles 5, 6 and 28 of the Constitution) sufficiently to require an amendment to Article 29 of the Constitution to permit its ratification, Clarke J picked up on Hederman J’s dictum in Crotty v An Taoiseach [1987] IR 713, [1987] IESC 4 (9 April 1987):

The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution.

As a consequence, he analysed the sovereignty issue in contractual language:

8.3 … in international relations, as in very many other areas of public and private life, freedom to act will often, as a matter of practicality, involve freedom to make commitments which will, to a greater or lesser extent, limit ones freedom of action in the future.

…

Unconstitutional expenditures – IV – remedies for breach of the McKenna prohibition

13 November, 201223 April, 2016

| 4 Comments

| Irish cases, Irish Law, Irish Supreme Court, Restitution

This is my fourth and final post on the per curiam in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here), which held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). In my first post, I looked at the background to the per curiam. In my second post, I explored exactly what was forbidden by McKenna, and concluded that it prohibits intentional partisan government expenditure. In my third post, I concluded that the precise constitutional basis for that prohibition is that such expenditure is undemocratic, unfair, unbalanced, unequal or partial, and that it may be restrained because it therefore violates the right to an equal franchise (see also the posts here by Paul McMahon and here by Laura Cahalane, and this assessment by Conor O’Mahony). In this post, I want to look at the remedies which might be available to a citizen for breach of that right.…

Unconstitutional expenditures – III – the basis of the McKenna prohibition

12 November, 20124 February, 2013

| 7 Comments

| Irish cases, Irish Law, Irish Supreme Court

In previous posts, I noted that the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here) held that the defendants had acted wrongfully in expending public moneys on a website, booklet and advertisements in relation to the children’s referendum in breach of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995), and I explored exactly what was forbidden by the McKenna prohibition on intentional partisan government expenditure (see also the posts here by Paul McMahon and here by Laura Cahalane). In this post, I want to consider the constitutional basis for the that prohibition.

There is a strong strain of democracy running through the majority judgments both in McKenna and in its companion case Hanafin v Minister for the Environment [1996] 2 IR 321, [1996] 2 ILRM 61 [1996] IESC 6 (12 June 1996). For example, in McKenna, Hamilton CJ held:

The role of the People in amending the Constitution cannot be over-emphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend.

…

Unconstitutional expenditures – II – the ambit of the McKenna prohibition

9 November, 20124 February, 2013

| 6 Comments

| Irish cases, Irish Law, Irish Supreme Court

In yesterday’s post, I looked at the background to the per curiam opinion issued by the Supreme Court in McCrystal v The Minister for Children and Youth Affairs [2012] IESC 53 (8 November 2012) (also here via RTÉ) that passages in a booklet and website published by the Department of Children and Youth Affairs fell foul of the prohibition in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, [1995] IESC 11 (17 November 1995). The reasons for that decision will be handed down on Tuesday, 11 December 2012. However, in advance of those judgments, at least three important questions arise on which the judgments of the Supreme Court in McKenna are not as helpful as they might be. First, which particular expenditure is prohibited by McKenna; second, what is the constitutional basis for this prohibition; and, third, what remedies can a court award when the McKenna prohibition is breached? I will look at the first of these questions in this post, and leave the others for subsequent posts (see also the posts here by Paul McMahon and here by Laura Cahalane).

On the question of what expenditure comes within the McKenna prohibition, Hamilton CJ held that government expenditure on “a publicity campaign designed to influence public opinion in relation to [a] proposed referendum” was undemocratic and unconstitutional.…

cearta.ie

Category: Irish Supreme Court

Some reflections on @RuadhanIT’s excellent @IrishTimes series on the Irish Supreme Court

Unconstitutional expenditures – VII – The judgments in McCrystal, Part 2

Unconstitutional expenditures – VI – The judgments in McCrystal, Part 1

Unconstitutional expenditures – V – An update on remedies for breach of the McKenna prohibition

Indentured servitude and a power akin to undue influence – contract reasoning in Pringle (ESM) and Sebelius (Obamacare)

Unconstitutional expenditures – IV – remedies for breach of the McKenna prohibition

Unconstitutional expenditures – III – the basis of the McKenna prohibition

Unconstitutional expenditures – II – the ambit of the McKenna prohibition