Unconstitutional Legislation

Information

The High Court in Ireland has a power or "jurisdiction" called "judicial review". Judicial review is a way for the High Court to supervise the Oireachtas (Irish Parliament) to make sure that legislation does not conflict with the Constitution (pdf) (or 'Basic Law' of Ireland).

It is also a way for the High Court to supervise the lower courts, tribunals and other bodies to ensure that they make their decisions properly. You can find out more about this in our document on judicial review - public decisions.

Rules

Judicial Review of Legislation

The High Court has the power or "jurisdiction" to cancel any law or part of any law that is repugnant to the Constitution. This means that if you believe that a law breaches the Constitution or your fundamental rights, you may bring "judicial review" proceedings in the High Court.

In order to bring judicial review proceedings, you must simply show that you have "sufficient interest" in the proceedings, i.e., that the legislation affects you in some real way. You must also show that you have an arguable case, i.e., that your case has grounds. Once you have passed this preliminary test, the High Court will allow you to apply for judicial review.

The High Court will then examine the legislation in question and decide whether or not it conflicts with the Constitution. If it decides that the legislation does conflict with the Constitution, it may annul or cancel the law or the part of it that is unconstitutional.

The Irish President also has the power to start judicial review proceedings. Under the Constitution, if he or she considers that a new Bill might raise constitutional problems, he or she may refer the Bill to the Supreme Court. The Supreme Court will then examine the Bill and hear arguments on both sides to decide whether or not the Bill is constitutional and can be passed as legislation.

How to apply

If you wish to begin judicial review proceedings, you should contact a solicitor who will in turn brief a barrister to draft the papers for the case. It is also possible for you to represent yourself if you wish to keep your legal costs down.

There is no fixed rate of charges for legal fees in Ireland so you should obtain some quotes before deciding on legal representation. Your solicitor must advise you in writing of the fees you will be charged for his/her services. If it is not possible to give you a definite sum, he/she must estimate a sum or at the very least describe the basis upon which charges or fees will be calculated.