Open Access
The decline of Article 26 : reforming abstract constitutional review in Ireland
Loading...
Files
Hogan Art. 26 .pdf (171.75 KB)
Full text in Open Access, Published version
License
Attribution 4.0 International
Cadmus Permanent Link
Full-text via DOI
ISBN
ISSN
2565-5558; 0021-1273
Issue Date
Type of Publication
Keyword(s)
LC Subject Heading
Other Topic(s)
EUI Research Cluster(s)
Initial version
Published version
Succeeding version
Preceding version
Published version part
Earlier different version
Initial format
Author(s)
Citation
The Irish jurist, 2022, Vol. 67, p.123
Cite
HOGAN, Hilary Ailbhe, The decline of Article 26 : reforming abstract constitutional review in Ireland, The Irish jurist, 2022, Vol. 67, p.123 - https://hdl.handle.net/1814/76112
Abstract
Ireland’s abstract review mechanism contains a design choice that appears to have had a significant impact on how it is used: under Art. 34.3.3, Bills which are found to be constitutional under the Art.26 procedure are permanently immune from further legal challenge. I suggest that the immunity provision under Art. 34.3.3 be abolished to encourage the President to avail of the Art.26 mechanism, removing one of the design features of Ireland’s form of abstract review linked to its decline. In Part 1, I outline the concept of abstract review and examine how Ireland’s abstract review mechanism has operated in practice. In Part II, I argue that the immunity in in Art. 34.3.3 is theoretically inconsistent with the ‘living Constitution’ approach adopted by the Irish courts and, at a practical level, it appears to have discouraged the President from referring Bills to the Supreme Court. I argue that the decline in Art.26 references has been aided by the weight afforded by the Government to legal advice from the Attorney General. The comparable convenience of sounding out legal advice has meant that the Government is less inclined to use their soft power to encourage the exercise of the Art.26 reference procedure. In Partt III, I propose the abolition of Art 34.3.3 to encourage greater use of the Art.26 mechanism.