Political questions' and judicial review in ireland

• Author: Paul Daly
• Position: BCL, LLM (Cork), LLM (Penn.), PhD Candidate, Faculty of Law, University of Cambridge
• Pages: 116-146

Judicial Studies Institute Journal [2008:2

116

“POLITICAL QUESTIONS”

AND JUDICIAL REVIEW IN IRELAND

PAUL DALY*

INTRODUCTION: STATEMENT OF PROBLEM

AND THEORETICAL BACKGROUND

The first question to be discussed in this essay is whether

there are areas of Irish law where judicial review by the superior

courts is excluded. Put another way, are there nonjusticiable

matters, or “political questions”, in Irish law? Some decisions or

types of decision might be classified as nonjusticiable because of

their politically sensitive nature, or because they are thought to be

best left to the political branches of government rather than

resolved by the courts, or because the courts are simply not

equipped to review the judgments of the executive, legislature or

delegated decision-makers in technical areas of policy. If it turns

out after close examination that there are no nonjusticiable

decisions or types of decision, then a second question arises: do

special rules and arrangements govern judicial review of some

decisions or types of decision? In other words, do the superior

courts sometimes conduct judicial review with less intensity, and

subject some decisions to less scrutiny than others? The two

questions can be joined as follows: what are the rules of

justiciability in the Irish legal system? To answer the question,

some brief theoretical discussion will be necessary. I will then

analyse the Irish cases under three headings: executive power,

legislative function, and delegated powers. The analysis of the

Irish cases will be split into two, for reasons that will become

clear.

There is a tangle of terminology in the literature, which is

liable to lead to confusion, so I ought to be clear about the way in

which I am using the term “justiciability”. As employed here, it

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* BCL, LLM (Cork), LLM (Penn.), PhD Candidate, Faculty of Law,

University of Cambridge. Any queries can be addressed to

pauldaly06@gmail.com.

2008] Political Questions and Judicial Review 117

has two components: the jurisdiction of a court to hear a case, and

what I initially call the “political question” doctrine. The first

component will not be canvassed here, but some examples may

be helpful: where a litigant fails to establish locus standi; where a

case is not ripe for judicial resolution; or where the remedy is

sought in the incorrect forum. In addition, the Constitution

provides that certain areas shall be immune from review as a

matter of jurisdiction. Under Article 13.8.1°, for example, “[t]he

President shall not be answerable to either House of the

Oireachtas or to any court for the exercise and performance of the

powers and functions of his office or for any act done or

purporting to be done by him in the exercise and performance of

these powers and functions”. Provisions immunising from judicial

review decisions taken by particular actors are not examples of a

“political question” doctrine at work; rather, they simply prevent

a court from having jurisdiction over decisions taken by particular

actors.1 A further provision worth flagging here, because it will

be mentioned below, is the prohibition on reviewing the contents

of a bill. The Constitution expressly vests the power of judicial

review in the courts, but it is a power only to review acts.

Thus review of bills is prohibited: expressio unius est exclusio

alterius.

Of interest for present purposes is the second component.

Courts invoke so-called “political question” doctrines, ostensibly

to avoid considering the merits of a particular case which has

come before them. No definition has common currency,2 which

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1 See also: Article 15.13 (parliamentary privilege); Article 28.3.3° (emergency

powers, though see In Re Article 26 and the Emergency Powers Bill 1976

[1977] I.R. 159); Article 34.3.3° (a Bill referred to the Supreme Court and held

to be constitutional); and Article 45 (Directive Principles of Social Policy).

2 See e.g. Baker v. Carr (1962) 369 U.S. 186 (United States); Council of Civil

Service Unions v. The Minister for the Civil Service [1985] 1 A.C. 374 (House

of Lords) (England); Horgan v. An Taoiseach [2003] I.E.H.C. 64, [2003] 1 I.R.

468; Barkow, “More Supreme than the Court? The Fall of the Political

Question Doctrine and the Rise of Judicial Supremacy”, (2002) 102 Columbia

Law Review 237; Choper, “The Political Question Doctrine: Suggested

Criteria”, (2004) 54 Duke L.J. 1457; Harris, “Judicial Review, Justiciability

and the Prerogative of Mercy”, (2003) 62 C.L.J. 631. Cf. Barak, The Judge in a

Democracy (2006), pp. 177-189; Dyzenhaus, The Constitution of Law:

Legality in a Time of Emergency (2006); Jowell, “The Democratic Necessity of

Administrative Justice”, [2006] Acta Juridica 13, 21-22; Redish, “Judicial