Unconstitutional legislation


Under Article 15 of the Constitution of Ireland, the Oireachtas must not enact a law which is incompatible with the Constitution. Also, if a law or part of a law is incompatible with the Constitution, the law or part of it is invalid. A law passed by the Oireachtas is presumed to be constitutional until it is proven not to be.

Presidential power

Legislation starts life as a Bill which is passed by both Houses of the Oireachtas. Every Bill must be signed by the Irish President before it can become law. As soon as a Bill has been passed by both Houses of the Oireachtas, it is presented to the President for signature.

Before signing the Bill, the President has the power under Article 26 of the Constitution to refer the bill to the Supreme Court when there is doubt as to whether it is constitutional. The President must first consult with the Council of State but the decision to refer the Bill is the President's alone.

The Supreme Court must decide whether or not the Bill conflicts with the Constitution. If the Supreme Court holds that the Bill is unconstitutional, the President cannot sign it into law. Under Article 34 of the Constitution, if a Bill has been referred by the President and the Supreme Court decides that the Bill is compatible with the Constitution, the constitutionality of this legislation cannot be challenged subsequently.

Judicial proceedings

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 proceedings in the High Court. The constitutionality of an Act that has not yet commenced may be challenged where an order commencing it could be made at any time. Notice of the proceedings must be served on the Attorney General.

In order to challenge the constitutionality of legislation, you must show that you have "sufficient interest" in the proceedings, that is, that the legislation affects you in some real way. You must also show that you have an arguable case, that is, that your case has grounds.

The High Court will 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 High Court’s decision may be appealed to the Court of Appeal or the Supreme Court.

How to apply

If you wish to begin judicial 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 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 their services. If it is not possible to give you a definite sum, they must estimate a sum or at the very least describe the basis upon which charges or fees will be calculated.

Page edited: 24 January 2023