Skip to main content Accessibility help
×
Hostname: page-component-76fb5796d-vfjqv Total loading time: 0 Render date: 2024-04-27T02:27:39.438Z Has data issue: false hasContentIssue false

6 - The Constitutionalisation of English Judicial Review in Ireland

Continuity and Change

from Part III - Origins and Adaptations in the British Isles

Published online by Cambridge University Press:  19 March 2021

Swati Jhaveri
Affiliation:
National University of Singapore
Michael Ramsden
Affiliation:
The Chinese University of Hong Kong
Get access

Summary

The constitutionalisation of Irish public law – first on independence in 1922 and then in 1937 on the adoption of the Irish Constitution – has had a marked effect on the development of Irish administrative law. My two objectives here are, first, to describe the constitutional influences on the development of Irish administrative law and, second, to demonstrate that Ireland has an indigenous administrative law. I begin in Part I with a brief historical introduction before moving in Part II to a discussion of the influence of the Constitution. In some areas, notwithstanding the adoption of the Constitution, legal life has gone on as before. The supervisory role of the superior courts has continued mostly unaltered, despite constitutional language that might be thought to justify a more intrusive judicial review jurisdiction. The law in relation to procedural fairness has been constitutionalised – and has a bespoke term, “constitutional justice” – but is not markedly different in substance from the English equivalent. However, there have been some important changes. With sovereignty residing in the People, rather than the Crown, the prerogative has been held not to have survived the transition to a new constitutional order. The permissible scope of delegation of power by the legislature has also been circumscribed. The constitutionalisation of judicially enforceable fundamental rights, meanwhile, meant that Irish administrative lawyers followed a ‘rights-based’ approach before their counterparts elsewhere in the common law world began to think in such terms. Finally, even though the supervisory role of the superior courts remains intact, it now has constitutional protection, such that limitations on access to judicial review are strictly policed and, potentially, unconstitutional. In Part III, I will tentatively suggest that the existence of the Constitution, and thus of an identifiably indigenous Irish administrative law, has prompted Irish judges to be self-confident enough to refuse to follow settled English law. There are some important areas where Irish administrative law has not tracked English administrative law, most notably in relation to error of law and procedural exclusivity (which has had a particular effect on the development of the law of legitimate expectations). In these areas, the Irish courts have operated in the shadow of English law but have sought to develop an indigenous approach.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×