Political questions' and judicial review in ireland

AuthorPaul Daly
PositionBCL, LLM (Cork), LLM (Penn.), PhD Candidate, Faculty of Law, University of Cambridge
Pages116-146
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

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