Constitutional Law 1 Module Handout Module Instructor: Oran Doyle Office: Room 23, The Law School, House

39 Office Hours Michaelmas Term: Tuesday 4-5pm; Wednesday 3-4pm Email: ojdoyle@tcd.ie Module description Constitutional law 1 introduces students to the study of constitutional law and theory, addressing a number of key doctrines and significant points of debate. The module begins with a brief historical account of the development of the Constitution, followed by an outline of the structure of government in Ireland. The module then addresses a number of topics related to fundamental rights including the following: constitutional rights in the criminal process, property rights and the unenumerated rights doctrine. These rights are used as exemplars of all rights-based analysis engaged in by the courts. Further rights are covered in the constitutional law 2 module. The second part of the module addresses in greater detail the separation of powers under the Irish Constitution, focusing on the limits of and interaction between the legislative, judicial and executive powers of government. Finally, the module addresses some general issues including the principles that govern constitutional litigation and constitutional interpretation. Assessment is by way of essay, participation in the modules internet discussion board and exam. Learning outcomes By the end of the module, you should be able to do the following: Competently read a constitutional case, identifying the important points; Identify the legal proposition or propositions that a constitutional case stands for; Analyse problems of constitutional law; Advise hypothetical clients as to how their situation might be affected by constitutional law; Critically analyse contentious issues of constitutional law; Write coherently about issues of constitutional law; Develop your own position on issues of political controversy relevant to the course; 1

Elaborate your own critically aware position of the extent to which judges are, and should be, guided by their own political/moral beliefs in their interpretation of constitutional law.

Substantive topics During the course we will address most of the following topics, in roughly this order: The history of the Constitution; The structure of government; Constitutional rights in the criminal context; Property rights; The unenumerated rights doctrine; The legislative power; The judicial power; The executive power; Principles governing constitutional litigation; Constitutional interpretation.

Lectures and seminars Contact hours for the module consist of lectures given by me and seminars provided by two postgraduate students, Ms Nra N Lionsigh and Mr Andrew Flynn. There are three hours of lectures each week, between 1pm and 2pm on Monday afternoons (MacNeill Theatre in the Hamilton Building) and between 4pm and 6pm on Thursday afternoons (Theatre 2039 in the Arts Building.) I employ a mixture of lecturing and socratic method in my classes. The socratic method involves my asking questions that you must answer. This year, I will be using a panel system. Each week, specified students will be asked questions. Your attendance will be monitored and you cannot miss your assigned week without my prior permission, which will only be granted if there are grave extenuating circumstances. Each week, there will also be scope for general class discussion in which all students may participate. However, if you are on the panel, you will be asked questions. Whether or not you are on the panel, you should read the material in advance of class as the class will be taught on the basis that all students have read the assigned material in advance. The panels for the first four weeks are as follows: 2

Monday 30 September - Thursday 3 October Monday 7 October Thursday 10 October Monday 14 October Thursday 17 October Monday 21 October Thursday 24 October

Law and Business SF Law and Political Science SF Law and French JF Law and German JF

I will notify the panels for the rest of the term in mid-October, once the LLB JF class list has settled down. You will be assigned to small groups for the purposes of the seminars. There will be four cycles of seminars in the term. They commence in the week beginning Monday 14 October. You will be provided with the administrative details for this in due course. I will assign a topic and reading for each seminar. The seminars provide an excellent opportunity for you to explore in more depth issues that we have touched on in lectures. Attendance at seminars is compulsory and all assigned reading must be done in advance. Reading materials I will provide you at the start of the year in hardcopy form and thereafter through the webcourse with reading lists for each topic. This reading list consists of cases, book chapters and journal articles. The core book for the course is Oran Doyle, Constitutional Law: Text, Cases and Materials (Clarus Press, 2008). This book is required reading. Reading from the book will be assigned in advance of each class. You must read the assigned sections and be prepared to answer questions on those sections in class. Some of the cases are marked with asterisks. These are the most important cases and must be read. Of the other material, I strongly recommend that you read some of it, but it would be unrealistic for you to read all of it. There are three general textbooks on constitutional law which you may find a useful complement to Text, Cases and Materials. These are Gerard Hogan and Gerry Whyte eds, Kelly: The Irish Constitution (4th ed, Butterworths LexisNexis, 2003), James Casey, Constitutional Law in Ireland (3rd ed, Round Hall Sweet & Maxwell, 2000) and Michael Forde, Constitutional Law (2nd ed, Firstlaw, 2004). A third edition of Forde is scheduled for publication in 2013. Nutshells are not nearly adequate for the module and in the past have led students to misunderstand material and fail exams. You should avoid them like the plague.

In addition, you should read some of the journal articles for each topic as these will provide you with critical insights and a more in-depth knowledge of particular issues. Broad academic commentary is contained in Eoin Carolan and Oran Doyle eds, The Irish Constitution: Governance and Values (Thomson Round Hall, 2008). Eoin Carolan, The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) is another helpful collection of essays. How much you read is a matter for yourself. Remember that it is more important that you develop your own sense of constitutional law than that you read everything that has ever been written on the subject. Reading what other people have written will help you develop your own understanding of the subject, but dont confuse the means with the end. Webcourse There is a webcourse for Constitutional Law I. As a student registered for this subject, you will have access to this webcourse. You need to go to mymodule.tcd.ie and then log in with your TCD username and password. All module materials (reading lists, announcements, etc) will be posted on this website. In addition, there is an internet discussion board. It is a compulsory aspect of the module that you participate in the discussion board by making (at least) one contribution per week. This will be explained further in class. (See coursework requirements below.) For all these reasons, it is important that you regularly check the webcourse and quickly get accustomed to using it. If you have a difficulty in using the webcourse, please let me know. Examination 75% of your marks for the subject will derive from a 2 hour exam next May. The questions will proportionately reflect material covered during the course of the year. The exam will be open-book, meaning that you can bring any material that you want into the exam. There will be 4 questions on the exam, of which you must answer 2, each question carrying equal marks. The first question will be a compulsory problem question drawing from several topics on the course. The remaining questions will consist of three essay questions. I have lectured this module for several years, apart from last year when it was lectured by David Kenny. Questions in previous exam papers provide a helpful guide as to the style of questions to expect. However, the structure has changed somewhat over the years, so bear in mind that you will have to answer one compulsory problem question. This means that you cannot omit any aspect of the module in your revision. I never give hints as to what topics might be covered on the exam. 4

Course work requirements 25% of your marks for the module will derive from coursework. This is divided in two. As mentioned above, participation in the webcourses discussion board is compulsory. You must make 10 contributions to the webcourse during the term, including at least one each week from the second teaching week onwards. For each contribution that you make, you receive 0.5%. Therefore, you can receive up to 5% of the marks for this module simply by contributing to the discussion board. You must also write an essay for the course. The essay must be submitted by 3pm on Thursday 30 January . I have stipulated this date to allow students work on the essay over the Christmas break and then to allow Schol candidates in the Senior Freshman years complete the essay after the Schol exam. If you are not taking Schol this year, however, my strong recommendation is that you complete the essay before the Hilary term starts so that you will be able to focus on your new modules. Full details of essay titles and submission deadlines are set out below. Plagiarism Plagiarism is a very serious offence in a university. It is fully defined in the College Calendar; broadly speaking, it consists of passing off as your own the work of another, whether a fellow student or another author. If I suspect that any students have engaged in plagiarism I shall refer the matter to their tutors and to the Head of School, Professor Biehler. You should familiarise yourselves with the definition of plagiarism contained in the calendar, reproduced in the course handbook, and with the possible sanctions for this offence. Contact hours I am usually available to talk briefly to students after class at 2pm on Mondays and at 6pm on Thursdays. My student office hours are as notified above and I am generally available to meet students at these times. You can also contact me at the email addresses above.

Topic 1 The Historical Background to the Irish Constitution Reading

The reading for this Topic is optional. It is important that you have some historical sense of how the Constitution was enacted, so it would be helpful for you to read some of the following. Constitutional History Dermot Keogh and Andrew McCarthy, The Making of the Irish Constitution of 1937 (Mercier Press, 2007). Hogan, The Origins of the Irish Constitution, 1928-1941, (RIA, 2012). Forde, 1-15 Casey, 1-21 Hogan, A Desert Island Case set in the Silver Sea: The State (Ryan) v. Lennon in

O'Dell (ed) Leading Cases of the 20th Century (Dublin, 2000), at 80-103. Keogh, The Irish Constitutional Revolution: An Analysis of the Making of the Constitution in Litton (ed), The Constitution of Ireland 1937-1987, at 39. Towey, Hugh Kennedy and the Constitutional Development of the Irish Free State (1977) 12 Irish Jurist 355 Hogan, The Constitution Review Committee of 1934 in O Muircheartaigh ed, Ireland in the Coming Times (IPA, 1997), at 342-369. Keane, Fundamental Rights in Irish Law A Note on the Historical Background in OReilly (ed), Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (Round Hall Press, 1992). Hogan, The Supreme Court and the Reference of the Offences against the State (Amendment) Bill 1940 (2000) 35 Irish Jurist 238 Hogan, DeValera, The Constitution and the Historians (2005) XL IR JUR 291 Doyle, Constitutional Equality Law (Round Hall Thomson 2004), chapter 3 Governance and Values, chapters 1, 2 and 3 Coffey, British, Commonwealth and Irish Responses to the Abdication of King Edward VII (2009) 44 Ir Jur 123 Gallagher, The Irish Constitution Its Unique Nature and the Relevance of International Jurisprudence (2010) 45 Ir Jur 22 Hogan, John Hearne and the Plan for a Constitutional Court (2011) 33 DULJ 75. State (Ryan) v Lennon [1935] IR 170. 6

Topic 2 The Structure of Government: Constitutional Change Articles 12-13: the President Article 15: the Oireachtas Articles 18-19: the Seanad Article 28: the Government Article 14: the Council of State Articles 16-17: the Dil Articles 20-27: the legislative process Articles 34-38: the Courts

Thirty-second Amendment of the Constitution (Abolition of Seanad ireann) Bill 2013 Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013 Richard Sinnott, The Electoral System in John Coakley and Michael Gallagher (eds), Politics in the Republic of Ireland (5th ed, Routledge, 2010) 111 Michael Gallagher, The Oirecahtas: President and Parliament in John Coakley and Michael Gallagher (eds), Politics in the Republic of Ireland (5th ed, Routledge, 2010) 198 Eoin Carolan, Recovering the Republic? Democratic Representation and the Theory of Mixed Government (2012) 47(2) JUR 173 John Coakley, An Ambigious Office? The Position of the Head of State in the Irish Constitution (2012) 47(2) JUR 43 Oran Doyle, The Dynamics of Constitutional Change (2013) 102(2) Studies: An Irish Quarterly Review Jim OCallaghan, Seanad ireann An Opportunity for Real Political Reform in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) Jane Suiter, A Constitutional Moment: Taking Advantage of a Confluence of Events in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) John ODowd, The Constitutional Convention: A Comment in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012)

Topic 3 Criminal Rights in the Constitution 7

Article 38 Text, Cases and Materials, chapter 2 Scope of Article 38 Heaney v Ireland [1994] 3 IR 593 Melling v Mathghamhna [1962] IR 1 *Murphy v GM [2001] 4 IR 113 Unconstitutionally obtained evidence *People (Attorney General) v OBrien [1965] IR 142 People (DPP) v Shaw [1982] IR 1 *People (DPP) v Kenny [1990] 2 IR 110 People (DPP) v Balfe [1998] 4 IR 50 DPP v Mallon [2011] !ECCA 29 Damache v DPP [2012] IESC 11 Walsh v Buachalla [1991] 1 IR 56 People (DPP) v AD [2012] IESC 33 DPP (Walsh) v Cash [2007] IEHC 108, [2010] IESC 1 Moore v Dun Laoghaire Rathdown County Council [2010] IEHC 466 The right to be provided with a lawyer *State (Healy) v Donoghue [1976] IR 325 *Carmody v Minister for Justice, Equality and Law Reform [2005] IEHC 10, [2009] IESC 71 *DPP v Healy [1990] 2 IR 73 People (DPP) v Buck [2002] 2 IR 268 People (DPP) v OBrien [2005] 2 IR 206 The right to silence *Heaney v Ireland [1996] 1 IR 580 Rock v Ireland [1997] 3 IR 484 Sanders v United Kingdom (1997) 23 EHRR 313 Murray v United Kingdom (1996) 22 EHRR 29 *Re National Irish Bank [1999] 3 IR 145 Dunnes Stores Ireland Co Ltd v Ryan [2002] 2 IR 60 8

People (DPP) v Finnerty [1999] 4 IR 364 DPP v Fitzpatrick [2012] IECCA 74 Unfair pre-trial publicity D v DPP [1994] 2 IR 465 Z v DPP [1994] 2 IR 476 Magee v ODea [1994] 1 IR 500 DPP v Haugh (No 2) [2001] 1 IR 162 The duty to seek out and preserve evidence Murphy v DPP [1989] ILRM 71 *Braddish v DPP [2001] 3 IR 127 Dunne v DPP [2002] 2 IR 305 Bowes and McGrath v DPP [2003] 2 IR 25 ODriscoll v DPP [2009] IESC 23 *Savage v DPP [2009] I IR 185 CD v DPP [2009] IESC 70 Byrne v DPP [2010] IESC 54 Rynn v DPP [2011] IEHC 241 The right to an early trial State (OConnell) v Fawsitt [1986] IR 362 *SH v DPP [2006] 3 IR 575 MacFarlane v DPP [2007] 1 IR 134; McFarlane v Ireland ECHR [2010] ECHR 31333/06 People (DPP) v Quilligan (No 3) [1992] 2 IR 305 NC v DPP [2001] IESC 54 OB v DPP [2010] IESC 41 Kennedy v DPP [2012] IESC 34 Repeated retrials AP v DPP [2011] IESC 2 The presumption of innocence *OLeary v Attorney General [1993] 1 IR 102 9

Hardy v Ireland [1994] 2 IR 550 No right to confrontational cross-examination Re Haughey [1971] IR 217 Donnelly v DPP [1998] 1 IR 321 The right to jury trial Article 38.5 Melling v Mathghamhna [1962] IR 1 Conroy v Attorney General [1965] IR 411 People (DPP) v OShea [1982] IR 384 *De Burca v Attorney General {1976] IR 38 (judgment of Henchy J) OCallaghan v Attorney General [1993] 2 IR 17 State (DPP) v Walsh [1981] IR 412 Substantive Protections: Content of the criminal law Article 15.5.1 Doyle v An Taoiseach [1986] ILRM 693 Magee v Culligan [1992] 1 IR 233 *King v Attorney General [1981] IR 233 Re Article 26 and the Employment Equality Bill 1996 [1996] 2 IR 321 *C v Ireland [2006] IESC 33 *Dokie v DPP [2011] IEHC 110 *Douglas v DPP [2013] IEHC 343 Books Kelly, pp1039-1239 Forde, pp404-483 Articles Yvonne Daly, Does the Buck Stop Here: An examination of the Right to Pre-Trial Legal Advice in the Light of OBrien v DPP (2006) 28 DULJ 345 Governance and Values, chapters 12, 15 and 16

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Yvonne Daly, Is Silence Golden: the Legislative and Judicial Treatment of Pre-Trial Silence in Ireland (2009) 31 DULJ 35 Yvonne Daly, Exclusion of Evidence: DPP (Walsh) v Cash International Journal Of Evidence And Proof (2011) 15 62. Yvonne Daly Unconstitutionally Obtained Evidence in Ireland: Protectionism, Deterrence and the Winds of Change. Irish Criminal Law Journal, 19(2) 40. Gerry Whyte, A Tale of Two Case- Divergent Approaches of the Irish Supreme Court to Distributive Justice (2010) 32 DULJ 365 David Prendergast, The Constitutionality of Strict Liability in Criminal Law (2011) 33 DULJ 285. Topic 4 Property Rights Article 40.3 and Article 43 Text, Cases and Materials, chapter 6 Character of property right and early cases *re Article 26 and the Health (Amendment) (No2) Bill 2004 [2005] IESC 7 *Buckley v Attorney General [1950] IR 67 Quinn v Irish Bank Resolution Corporation Ltd [2013] IEHC 116 *Attorney General v Southern Industrial Trust (1961) 109 ILTR 161 Blake v Attorney General [1982] IR 117 Dreher v Irish Land Commission [1984] ILRM 94 Standards of review for property rights: proportionality *Iarnrd ireann v Ireland [1996] 3 IR 321 *Daly v Revenue Commissioners [1995] 3 IR 1 re Article 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321 Courts attitude to property rights restrictions in different contexts Land *Blake v Attorney General [1982] IR 117 11

Shirley v AO Gorman & Company Ltd [2006] IEHC 27; [2012] IESC 5. Central Dublin Development Association v Attorney General (1975) 109 ILTR 69 Taxation *Madigan v Attorney General [1986] ILRM 136 MhicMhathna v Ireland [1995] 1 IR 484 Daly v Revenue Commissioners [1995] 3 IR 1 Factors that affect how courts view property rights restrictions Irrational Restrictions on Rights *Blake v Attorney General [1982] IR 117 *Brennan v Attorney General [1983] ILRM 449 (HC); [1984] ILRM 355 (SC) BUPA Ireland Ltd v Health Insurance Authority 23 November 2006 (HC) Retrospection re Article 26 and the Health (Amendment) (No2) Bill 2004 [2005] IESC 7 Public good at private cost *re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 *re Article 26 and the Health (Amendment) (No2) Bill 2004 re Article 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321 Compensation *Central Dublin Development Association v Attorney General (1975) 109 ILTR 69 re Article 26 and the Health (Amendment) (No2) Bill 2004 [2005] IESC 7 *re Article 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321 OCallaghan v Commissioners of Public Works [1985] ILRM 364 Participation as Protection of Rights Dellway Investments v NAMA [2011] IESC 14 What property is constitutionally protected? Money Buckley v Attorney General [1950] IR 67 Objects Southern Industrial Trust (1961) 109 ILTR 161 Land Central Dublin Development Association v Attorney General (1975) 109 ILTR 69 12

Intellectual property Phonographic Performance (Ireland) Ltd v Cody [1998] 4 IR 50 Running a business re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 Mutual contractual obligations Chestvale Properties Ltd v Glackin [1992] ILRM 221 J & J Haire & Company Ltd v Minister for Health and Children [2009] IEHC 562 Litigation Dellway Investments Ltd v NAMA [2011] IESC 13 and 14 *re Health (Amendment) (No2) Bill 2004 [2005] IESC 7 Tuohy v Courtney [1994] 3 IR 1 Shares Kerry Co-Operative Creameries Ltd v An Bord Bainne [1990] ILRM 664 ONeill v Ryan [1993] ILRM 557 Re Eylewood Ltd [2010] IEHC 57 Value created by regulation intangible property *Lovett v Minister for Education [1997] 1 ILRM 89 State (FPH Properties SA) v An Bord Pleanla [1987] IR 698 *Pine Valley Developments v Minister for the Environment [1987] IR 23 re Article 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321 *Maher v Minister for Agriculture, Food and Rural Development [2001] 2 IR 139 *Hempenstall v Minister for the Environment [1994] 2 IR 20 Standing to invoke property rights Private Motorists Provident Society v Attorney General [1983] IR 339 *Iarnrd ireann v Ireland [1996] 3 IR 321 Books Kelly, 1969-2028 Casey, 662-684 Forde, 727-763 Foley, Deference and the Presumption of Constitutionality (IPA, 2008) [This book is not specifically about property rights but it is about the courts deference to the legislative restriction of rights. We are exploring that topic through the prism of property rights.] 13

Articles McCormack, Blake and its Aftermath (1983) 5 DULJ 205 Kingston, Rich People have Rights Too? The Status of Property as a Fundamental Human Right in Heffernan ed, Human Rights: A European Perspective (Round Hall Press, 1994) 284. Keane, Land Use, Compensation and the Community (1983) 18 Ir Jur. McBride, The Right to Property (1996) 21 European Law Review Human Rights Survey 40 Barrington, Private Property under the Irish Constitution (1973) 8 Ir Jur 1 Hogan, The Constitution, Property Rights and Proportionality (1997) Irish Jurist 373 Rachael Walsh, The Constitution, Property Rights and Proportionality A Re-appraisal (2009) 31 DULJ 1 Rachael Walsh, Private Property Rights in the Drafting of the Irish Constitution: A Communitarian Compromise (2011) 33 DULJ 86 David Kenny, A Dormant Doctrine of Overbreadth: Abstract Review and IUS Tertii in Irish Proportionality Analysis (2010) 32 DULJ 24 Governance and Values, chapters 22, 23 and 24 David Kenny, Fair Procedures in Irish Administrative Law: Towards a Duty to Act Fairly in Dellway Investments Ltd v Nama (2011) 34 DULJ 47 Ailbhe ONeill, Fair Procedures an Inviolable Constitutional Requirement (2011) 33 DULJ 319 Brian Foley, The BUPA Ireland case and Constitutional Litigation (2010) 45 Ir Jur 230 Topic 5 The Unenumerated Rights Doctrine [NB that two articles are required reading for this topic.] Article 40.3 Text, Cases and Materials, chapter 4 *Ryan v Attorney General [1965] IR 294 14

Macauley v Minister for Posts and Telegraphs [1966] IR 345 State (M) v Attorney General [1979] IR 73 Kennedy v Irleand [1987] IR 587 *McGee v Attorney General [1974] IR 284 *Norris v Attorney General [1984] IR 36 State (Nicoloau) v An Bord Uchtla [1966] IR 567 *G v An Bord Uchtla [1980] IR 32 *Re Article 26 and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 *OT v B [1998] 2 IR 321 TD v Minister for Education [2001] 4 IR 259 *Kinsella v Governor of Mountjoy [2011] IEHC 235 *Fleming v Ireland [2013] IEHC 2; [2013] IESC 19 Books Kelly, pp1413-1446 Articles Desmond Clarke, The Role of Natural Law in Irish Constitutional Law (1982) 17 Irish Jurist 187 *Gerard Hogan, Unenumerated Personal Rights: Ryans Case Re-evaluated (1990-1992) 25-27 Irish Jurist 95 *Richard Humphreys, Interpreting Natural Rights (1993-1995) Irish Jurist 221 Roderick OHanlon, Natural Rights and the Irish Constitution [1993] ILT 8 Oran Doyle, Legal Validity: Reflections on the Irish Constitution (2003) 25 DULJ 56 Adrian Twomey, The Death of Natural Law [1995] ILT 270 Mark de Blacam, Justice and Natural Law (1997) 32 Irish Jurist 323 Donal Coffey III, Article 28.3.3, The Natural Law and the Judiciary - Three Easy Pieces (2004) 22 ILT 310 Oran Doyle, Legal Positivism, Natural Law and the Constitution (2009) 31 DULJ 206 Desmond Clarke, Unenumerated Rights in Constitutional Law (2011) 34 DULJ 101 Gerard Hogan, The Judicial Thought and Prose of Mr Justice Seamus Henchy (2011) 46 (1) Ir Jur 96

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Aileen Kavanagh, The Irish Constitution at 75 Years: Natural Law, Christian Values and the Idea of Justice (2012) 47 (2) Ir Jur 71 Eoin Daly, Public philosophy and constitutional interpretation after natural law: republican horizons in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) Declan OKeeffe, God, the Natural Law and the 1937 Constitution in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) Aileen Kavanagh, Unconstitutional Constitutional Amendments from Irish Free State to Irish Republic in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) Yaniv Roznai, The Theory and Practice of Supra-Constitutional Limits on Constitutional Amendments (2013) 62 International and Comparative Law Quarterly 557 Topic 6 The Legislative Power Article 15 Text, Cases and Materials, chapter 11 and 15 General principles and the Rule of Law The State (Walshe) v Murphy [1981] IR 275 Murphy v Attorney General [1982] IR 237 Kennedy v Law Society of Ireland [2002] 2 IR 458 Subordinate legislation *City View Press Ltd v An Comhairle Oilina [1980] IR 381 McDaid v Sheehy [1991] 1 IR 1 *Laurentiu v Minister for Justice [1999] 4 IR 1 *Leontjava v DPP and Chang v DPP [2004] 1 IR 591 re Article 26 and the Health (Amendment) (No2) Bill 2004 [2005] IESC 7 *John Grace Fried Chicken Ltd v Catering JLC [2011] IEHC 277 *McGowan & ors v Labour Court Ireland & anor [2013] IESC 21

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Interaction of non-delegation principle and ultra vires principle *Cooke v Walsh [1984] IR 710 Harvey v Minister for Social Welfare [1990] 2 IR 232 Primary legislation as a deliberative process *Leontjava v DPP and Chang v DPP [2004] 1 IR 591 European Community Measures *Meagher v Minister for Agriculture and Food [1994] 1 IR 329 *Maher v Minister for Agriculture and Food [2001] 2 IR 139 McCauley Chemists (Blackpool) Ltd v Pharmaceutical Society of Ireland The power of inquiry Maguire v Ardagh [2002] 1 IR 385 30th Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 Books Kelly, pp234-251 Forde, pp173-184 David Gwynn Morgan, The Separation of Powers in the Irish Constitution (Round Hall, Sweet & Maxwell, 1997), pp222-263 Annual Review 2004 for discussion of Leontjava and Chang. Articles Neil Maddox, Legislation by Delegation - The Principles and Policies Test in Irish Law (2004) 22 ILT 293 Hogan, The Implementation of EU Law in Ireland: the Meaghar Case and the Democratic Deficit (1994) 3 Irish Journal of European Law 190 Noel Travers, The Reception of Community Legislation into Irish Law and Related Issues Revisited (2003) 38 IR JUR 58 Eoin Carolan, Democratic Control or High-Sounding Hocus-Pocus? A Public Choice Analysis of the Non-Delegation Doctrine (2007) 29 DULJ 111 Governance and Values, chapters 8 and 9

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John ODowd, Knowing how Way Leads on to Way: Some Reflections on the Abbeylara Decision (2003) 38 Ir Jur 162. Eoin Carolan, Democratic Accountability and the Non-Delegation Doctrine (2011) 33 DULJ 220 Maria Cahill, Constitutional Exclusion Clauses, Article 29.4.6, and the Constitutional Reception of European Law (2011) 34 DULJ 74. David Kenny, The Separation of Powers and Remedies: The Legislative Power and Remedies for Unconstitutional Legislation in Comparative Perspective in Eoin Carolan (ed.) The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional, 2012) Topic 7 The Executive Power Articles 28 and 29 of the Constitution Text, Cases and Materials, chapter 12 The executive power of the State, not the executive power in the State Murphy v Dublin Corporation [1972] IR 215 Explicit executive powers Boland v An Taoiseach [1974] IR 338 *Crotty v An Taoiseach [1987] IR 713 *Pringle v An Taoiseach [2012] IESC 47 McGimpsey v Ireland [1990] 1 IR 110 *Horgan v An Taoiseach [2003] 2 ILRM 357 Dubsky v Government of Ireland [2005] IEHC 442 *Pringle v Ireland [2012] IESC 47 Implicit executive powers Haughey v Moriarty [1999] 3 IR 1 Lobe v Minister for Justice [2003] 1 IR 1 *Bode v Minister for Justice [2007] IESC 62 *Laurentiu v Minister for Justice [1999] 4 IR 26 18

Cabinet confidentiality *Attorney General v Hamilton (No1) [1993] 2 IR 251 Ambiorix v Minister for the Environment [1992] 1 IR 277 An Taoiseach v Commissioner of Environmental Information [2010] IEHC 241 Exercise of executive power MacDonncha v Minister for Education and Skills [2013] IEHC 226 Copymoore Ltd v The Commissioner of Public Works in Ireland [2013] IEHC 230 Members of the Government Riordan v An Taoiseach [1997] 3 IR 502 Kelly, pp421-564 Casey, pp189-218 and 230-238 Forde, pp118-139 David Gwynn Morgan, The Separation of Powers in the Irish Constitution (Round Hall, Sweet & Maxwell, 1997), chapter on executive power McDermott, The Separation of Powers and the Doctrine of Non-Justiciability (2000) 35 Irish Jurist 55 Ruane, The Separation of Powers and the Grant of Mandatory Orders to Enforce Constitutional Rights [2000] 5 Bar Review 416 and [2002] 7;4 Bar Review Casey, Crotty v An Taoiseach: A Comparative Perspective in OReilly (ed), Human Rights and Constitutional Law: Essays in Honour of Brian Walsh (Round Hall Press, 1992). Governance and Values, chapters 10, 11, 12 and 13 Gavin Barrett, The Evolving Door To Europe: Reflections on an Eventful Forty Years for Article 29.4 of the Irish Constitution (2012) 47(2) JUR 132 Maria Cahill, Judicial Conceptions of Sovereignty in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012) David Fennelly, Crottys Long Shadow: the European Union, the United Nations and the Changing Framework of Irelands International Relations in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury, 2012)

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Topic 8 The Judicial Power Articles 34-36 of the Constitution Text, Cases and Materials, chapter 13 The character of the judicial power McDonald v Bord na gCon [1965] IR 217 *Goodman International v Hamilton (No1) [1992] 2 IR 542 Croke v Smith (No2) [1998] 1 IR 101 The reservation of the judicial power to the courts *Buckley v Attorney General [1950] IR 67 The limits of the judicial power Boland v An Taoiseach [1974] IR 338 Sinnott v Minister for Education [2001] 2 IR 545 *TD v Minister for Education [2001] 4 IR 247 Judicial impeachment Curtin v Clerk of Dil ireann Judicial salaries OByrne v Minister for Finance [1959] IR 1 29th Amendment of the Constitution Bill 2011 Articles Ronan Keane, Across the Cherokee Frontier of Irish Constitutional Jurisprudence in Eoin ODell ed, Leading Cases of the Twentieth Century 185 Gerard Hogan, The Sinn Fin Funds Judgment Fifty Years on (1997) 2(9) Bar Review 375 David Gwynn Morgan, Judicial-o-centric separation of powers on the wane? (2004) xxxix IR JUR 142

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Alan Keating & Anthony Lowry, The Seperation of Powers - The Supreme Courts Approach to Affirmative Duties - Part 1 and 2 [2003] 21 ILT 103; [2003] 21 ILT 118 Mark De Blacam, Children, constitutional rights and the separation of powers (2002) 37 Ir Jur 113 Ruane, The Separation of Powers and the Grant of Mandatory Orders to Enforce Constitutional Rights [2000] 5 Bar Review 416 and [2002] 7;4 Bar Review McDermott, The Separation of Powers and the Doctrine of Non-Justiciability (2000) 35 Irish Jurist 55 Gerry Whyte, The Role of the Supreme Court in our Democracy: A Response to Mr Justice Hardiman (2006) 28 DULJ 1 Governance and Values, chapter 14 David Gwynn Morgan, The Pension Levy and Judicial Independence (2009) 27 ILT 63 Donal Coffey III, The Judicial Pension Levy: A Reply to Professor Gwynn Morgan (2009) 27 ILT 271 John O' Dowd, Judges In Whose Cause? The Irish Bench After the Judges' Pay Referendum (2012) 47(2) JUR 102 Topic 9 Rules and Principles Governing Constitutional Litigation Text, Cases and Materials, chapter 16 Standing and Ius Tertii *Cahill v Sutton [1980] IR 269 Norris v Attorney General [1984] IR 36 Society for the Protection of the Unborn Child (Ire) Ltd v Coogan [1989] IR 734 *Crotty v An Taoiseach [1987] IR 713 McKenna v An Taoiseach (No2) [1995] 2 IR 10 TD v Minister for Education [2001] 4 IR 259 Cox v Ireland [1992] 2 IR 503 Fleming v Ireland [2013] IEHC 2; [2013] IESC 19 Presumption of constitutionality 21

Pigs Marketing Board v Donnelly [1939] IR 413 Macauley v Minister for Posts and Telegraphs [1966] IR 345 Judicial Restraint M v An Bord Uchtla [1977] IR 287 Murphy v Roche [1987] IR 106 White v Dublin City Council [2004] 1 IR 545 Double construction rule McDonald v Bord na gCon [1965] IR 217 *East Donegal Co-operative Ltd v Attorney General [1970] IR 317 Loftus v Attorney General [1979] IR 211 Re Haughey [1971] IR 217 Kelly v Minister for the Environment [2002] 4 IR 191 *Quinn v Irish Bank Resolution Corporation Ltd [2013] IEHC 116 Severance *Maher v Attorney General [1973] IR 140 Desmond v Glackin (No2) [1993] 3 IR 67 Douglas v DPP [2013] IEHC 343 Effects of finding of unconstitutionality State (Byrne) v Frawley [1978] IR 326 *Murphy v Attorney General [1982] IR 241 Muckley v Ireland. [1985] IR 472 McDonnell v Ireland [1998] 1 IR 134 *A v Governor of Arbour Hill Prison [2006] IESC 45 *Damache v DPP [2012] IESC 11 DPP v Cunningham [2012] IECCA 64 DPP v Kavanagh, Farrelly & Corcoran [2012] IECCA 65 People (DPP) v OBrien [2012] IECCA 68 DPP v Thomas Hughes [2012] IECCA 69 OCallaghan v Governor of Cork Prison [2012] IEHC 325

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Constitutional Lacunae in Acts Somjee v Minister for Justice [1981] ILRM 324 D v Ireland [2009] IEHC 206 *Carmody v DPP [2009] IESC 71 G v District Judge Murphy [2011] IEHC 445 Articles David Kenny, A Dormant Doctrine of Overbreadth: Abstract Review and Ius Tertii in Irish Proportionality Analysis (2010) 32 DULJ 24 David Kenny, The Separation of Powers and Remedies: The Legislative Power and Remedies for Unconstitutional Legislation in Comparative Perspective in Eoin Carolan (ed.) The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional, 2012) Paul Gallagher, The Irish ConstitutionIts Unique Nature And The Relevance Of International Jurisprudence (2010) 45 Ir Jur (ns) 22; Eoin Carolan, The relationship between judicial remedies and the separation of powers: collaborative constitutionalism and the suspended declaration of invalidity, (2011) 46 Ir Jur (ns) 180. Books Kelly, pp 807-911 Casey, pp 332-376 Forde, pp 875-903 Topic 10 Constitutional Interpretation Text, Cases and Materials, chapter 17 Interpreting words Sinnott v Minister for Education [2001] 2 IR 545 Attorney General v Paperlink [1984] ILRM 373 Dillane v Attorney General [1981] ILRM 167 Quinns Supermarket v Attorney General [1972] IR 1 23

People (Director of Public Prosecutions) v OShea [1982] IR 384 Interpreting values McGee v Attorney General [1974] IR 284 re Article 26 and the Health (Amendment) (No2) Bill 2004 [2005] IESC 7 State (Nicoloau) v An Bord Uchtla [1965] IR 567 Conroy v Attorney General [1965] IR 411 Gilligan v Revenue Commissioners [2006] IEHC Leontjava and Chang v DPP [2004] 1 IR 591 C v Ireland [2006] IESC 33 Books Kelly, pp3-38 Forde, pp50-64 Articles Ronald Dworkin, Freedoms Law (Oxford, 1996), introduction Aileen Kavanagh, The quest for legitimacy in constitutional interpretation (1997) 32 Ir Jur 195 Governance and Values, chapters 4 and 6

Constitutional Law 1 Seminar 1 In preparation for this seminar, please read the assigned cases below and then consider this problem. The problem raises a number of legal issues. Start by making a note of each issue. You should be able to spot the issues just through your general knowledge of the area of law, and your notes from class. For example, you should know that the question of unconstitutionally obtained evidence raises legal concerns. This then becomes an issue in the problem question. When you have identified the issues, try to work out the answer to each one. This will involve reading the assigned case law to work out what the law is on a particular issue. When you have done that, you need to apply the law to each issue so that you can come to a conclusion: does Walter have a good ground of objection or not? Do this for 24

each issue. When you have done all this, you will be in a position to provide advice and answer any question that may be put to you in the seminar. Problem: Walter White is at home one morning reading the complete works of Immanuel Kant. This is interrupted when the Garda call by. The Garda go into Walters house, showing him a warrant. As they carry out the search, Walter examines the warrant. It lists the name of the person living in the premises as Walter Whitman, not Walter White. It misdescribes his address; he lives at 21 Moon Court, Terenure, whereas the warrant is made out for 21, The Moon, Rathgar, an address which does not exist. He later points these errors out to the Garda, who apologise, and say they did not realise their error, but the search is already complete. In his spare bedroom, the Garda find a sawn off shotgun and 2 kg of methamphetamine, or crystal meth. Garda Henry Sullivan arrests Walter pursuant to section 4 of the Criminal Law Act 1997. Walter is taken to a local police station where he asks to be provided with a solicitor. The Garda make contact with Ms Goodman, Walters solicitor, and commence questioning Walter at 1pm. At 1.25pm, Ms Goodman arrives and asks to speak to Walter. The station sergeant informs the interviewing team that the solicitor has arrived and then ask Walter if he would like to speak to her. He says that he would like to speak to her, but the Garda continue questioning him anyway. At 1.50pm he states that the shotgun belongs to him. At 2pm, the Garda read over the notes of the interview to that stage and Walter signs them. He is then allowed to speak to his solicitor in private. The interview recommences at 3pm. At 4.30pm, Walter admits that the drugs are his, and that he was going to give them to a Dublin-based criminal called Gus, who sells Meth from his fast food outlet. Walter again signs a note of this portion of the interview. He is then charged with offences in relation to the shotgun and the drugs and is ultimately sent forward for trial in the Circuit Criminal Court. Shortly after Walter is charged, Walters solicitor discovers several things. First, the warrant was issued under a new search power in the Drugs Searches Act, 2012, where a Garda Superintendent who was involved with the case can authorise a search. However, the warrant here was issued by Superintendent Hank Schrader who works in 25

a different garda station. Secondly, when she writes to the Garda to request inspection of the shotgun and the drugs, it emerges that the Garda have misplaced the drugs. Please advise Walter as to whether the prosecution can, at trial, rely on the following evidence: The shotgun; Garda Sullivans recollection of finding the drugs; His confession to possession of the shotgun; His confession to possession of the drugs.

[please assume that the arrest of Walter was lawful regardless of the legality of the search that is, assume the Garda had a basis to arrest him even if they had not found the items in his house.] Please also be prepared to discuss with your seminar tutor whether or not you agree with the Exclusionary Rule in its current form. Relevant reading: Article 38 Doyle, Text, Cases and Materials, chapter 2 People (Attorney General) v OBrien [1965] IR 142 People (DPP) v Shaw [1982] IR 1 People (DPP) v Kenny [1990] 2 IR 110 People (DPP) v Balfe [1998] 4 IR 50 People (DPP) v AD [2012] IESC 33 Damache v DPP [2012] IESC 11 DPP v Mallon [2011] IECCA 29 DPP (Walsh) v Cash [2007] IEHC 108 DPP v Healy [1990] 2 IR 73 People (DPP) v Buck [2002] 2 IR 268 People (DPP) v OBrien [2005] 2 IR 206 Braddish v DPP [2001] 3 IR 127 Bowes and McGrath v DPP [2003] 2 IR 25 26

Savage v DPP [2009] I IR 185 Yvonne Daly, Does the Buck Stop Here: An examination of the Right to Pre-Trial Legal Advice in the Light of OBrien v DPP (2006) 28 DULJ 345 Constitutional Law 1 Seminar 2 The Oireachtas enacts the Rent Review Stabilisation (Dublin) Act 2012 to deal with upwardonly rent review clauses clauses in leases that provide that rent may only be reviewed to increase it, rather than decrease it. Such clauses are despised by many commercial tenants, who signed leases containing such clauses during the property boom, and now feel their rent should be lowered. Section 3 of the Act provides that any upward-only rent review clause in a lease is presumptively invalidated if it relates to a property in certain areas of Dublin designated by the Act. Section 4 provides that such a clause may be upheld, in spite of section 3, if it is approved by the newly founded Rent Review Board. The Act sets up the board in this section, but gives no indication of what procedures the board should follow in making its determinations. Section 5 states that no compensation is to be provided for those leaseholders who would have this clause excised from their lease. Mr Black is a struggling property tycoon. His company, Black Industries, of which he is the majority shareholder, owns the freehold of several properties in the Dublin area, each of which has a long lease in favour of a commercial tenant. Each property falls within one of the designated areas, and has an upward-only rent review clause in the lease. He applied to the Rent Review Board under s 4, asking it to uphold these clauses in Black Industries leases. Without hearing details of the particular leases or his reasons for wishing the clauses to be retained, the Board sent him a letter rejecting the request. Mr Black feels very aggrieved by this law. He says that is already struggling to pay back mortgages on many of the properties, and was relying on these clauses to ensure a stable rental income to service these mortgages. He says that he relied on these contracts, and assumed they would remain valid, and the Oireachtas has now interfered with that. He thinks that, if this were to be necessary, he should be compensated for the reduced value of his leases. He claims that his tenants are very wealthy corporations, such as international 27

restaurant and clothes chains, and they can, for the most part, afford the rent charges. He thinks that many of them complain about the upward rent reviews because they want lower rents so they can make more profit. Moreover, Mr Black complains that the designated by the law are unfairly selected unfair. Most of the areas affected are in South Dublin City, with North Dublin City largely unaffected. Mr Black claims this is unfair to people like him, whose properties are mostly in central southside locations, whereas his friend Mr Grey, who holds property in North Dublin City and similarly had upward-only rent review clauses, is not affected. The government claims that areas were designated based on how prolific upward only rent clauses were, and that they were trying to limit the impact of the measure as much as possible. Mr Black seeks your advice as to whether the Act is constitutional. Please advise him on all relevant issues. Relevant cases: Blake v Attorney General [1982] IR 117 re Article 26 and the Health (Amendment) (No2) Bill 2004 [2005] IESC 7 re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 re Article 26 and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321 Iarnrd ireann v Ireland [1996] 3 IR 321 Dellway Investments v NAMA [2011] IESC 14 Hogan, The Constitution, Property Rights and Proportionality (1997) Irish Jurist 373 Rachael Walsh, The Constitution, Property Rights and Proportionality A Re-appraisal (2009) 31 DULJ 1 Constitutional Law 1 Seminar 3 Consider and be prepared to discuss the following statement: The apparent demise of the unenumerated rights doctrine is a regrettable development in Irish constitutional jurisprudence. 28

Reading: Article 40.3 Ryan v Attorney General [1965] IR 294 McGee v Attorney General [1974] IR 284 Norris v Attorney General [1984] IR 36 G v An Bord Uchtla [1980] IR 32 re Article 26 and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 OT v B [1998] 2 IR 321 Kinsella v Governor of Mountjoy [2011] IEHC 235 Desmond Clarke, The Role of Natural Law in Irish Constitutional Law (1982) 17 Irish Jurist 187 Gerard Hogan, Unenumerated Personal Rights: Ryans Case Re-evaluated (1990-1992) 25-27 Irish Jurist 95 Richard Humphreys, Interpreting Natural Rights (1993-1995) Irish Jurist 221 Roderick OHanlon, Natural Rights and the Irish Constitution [1993] ILT 8 Oran Doyle, Legal Positivism, Natural Law and the Constitution (2009) 31 DULJ 206 Desmond Clarke, Unenumerated Rights in Constitutional Law (2011) 34 DULJ 101 Constitutional Law 1 Seminar 4 For this seminar you need to be prepared to discuss and critically analyse the following statement: The courts can and should have the power to grant mandatory orders so as to enforce constitutional rights. The assigned reading for Topic 8 will be of most assistance to you. 29

Constitutional Law 1 Module Essay You must write an essay for the course. The essay must be submitted by 3pm on Thursday 30 January and can be no more than 8 pages long. You must write your essay on one of the following titles: 1 The courts have fairly balanced the rights of accused people and the interests of society at large in respect of both the Exclusionary Rule of Evidence and the Right to Silence. Critically analyse this statement with reference to Irish case law. 2 The courts, in their protections of property rights, have departed too much from the text of the Constitution, focusing too greatly on external standards of review. Critically analyse this statement with reference to Irish case law. 3 The unenumerated rights doctrine was an appropriate response by the courts to the social situation in Ireland in the 1960s and 1970s, but is no longer necessary or desirable. Critically analyse this statement with reference to Irish case law. 4 The courts interpretation of Article 15.2 of the Constitution adequately protects the powers of the Oireachtas. Critically analyse this statement with reference to case law. 5 The courts ought not to enforce constitutional rights by way of mandatory orders. Critically analyse this statement with reference to case law.

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The courts have made it too easy for citizens to challenge the constitutionality of legislative and governmental actions. Critically analyse this statement with reference to case law.

The courts have provided consistent and compelling interpretations of the Constitution. Critically analyse this statement with reference to case law.

The Government is subject to appropriate checks and balances under the Constitution. Critically analyse this statement with reference to case law.

Detailed rules for length and submission of essay The essay should be written in 12pt font and be 1 spaced. Do not pick an unusally small font in order to fit in more words. If you do, I will estimate how much you have exceeded the page limit and stop reading at an appropriate point. Use a sans-serif font that is normal for documents: eg, Calibri, Trebuchet MS, Arial, or similar. Standard default margins should be used. Within these limiations, it should be no more than 8 pages long, including footnotes but excluding the title page. I shall not read beyond the 8th page. You must include your student ID number (ie your 8 digit number, not your anonymous-marking number) on the front page of the essay. You must also print off, complete and sign the standard plagiarism declaration and attach it to your essay prior to submission. The essay must be handed to the secretary of the Law School on or by 3pm on Thursday 30 January. In addition, students must sign and date the registration book provided. Students must submit their essays only during posted Law School Office hours; submission after such office hours will be deemed late submission, and treated according to the penalties set out below.

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If you require an extension, you must contact the module lecturer on or preferably before the submission date. There is a strong presumption against the granting of extensions. For example, computer failure and the like will not normally be accepted as justifications for the granting of an extension. An extension may be granted on such terms as the lecturer thinks are reasonable in the circumstances. Such terms may include the abatement, in whole or in part, of relevant penalties, and the substitution of a new deadline. If you fail to submit an essay for assessment, you will be returned as non-satisfactory for the module. Late submissions (which have not been granted an extension) will, without exception, be subject to the following scale of penalties: From the mark out of 100 returned by the examiners: 10 marks will be deducted for the first day or part thereof by which the deadline is exceeded, A further 10 marks will be deducted in respect of the next six day period or part thereof by which the deadline is exceeded, and A further 10 marks will be deducted in respect of each subsequent week or part thereof by which the deadline for submission is exceeded. For the avoidance of doubt, submission after Law School Office hours shall be deemed to be submission on the following day, and the penalties will apply accordingly. If you are required, by reason of your examination result, to repeat your Constitutional law 1 module, the following regulations apply. If you either did not submit your essay or did not obtain a pass mark in the original essay, then you shall be required to submit a further essay for the supplemental examination. If you obtained a pass mark in the original essay, the mark will carry forward to the supplemental examination. Any further essay shall be submitted by 3pm on 15 August 2014 in the same manner as set out above. Late submission of an essay for assessment as part of the supplemental examinations will be subject to the same penalties as laid out above.

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