Any issue of law, having regard to the Constitution of Ireland 1937 or Order 84 of the Rules of the Superior Courts and also too, the Treaty of the European Union through Article 267, may be challenged as to its legitimacy and legality. To avoid frivolous claims, an applicant must seek first the liberty of the High Court to take proceedings.
Wrongful exercise of public power is litigated by Judicial Review or a private law action by plenary summons. The method of Judicial Review is not exclusive to Public Law. Intervention by the judiciary into government action is limited and strict legal reasons apply. Legislative intent and the rule of law must be expressed with due regard to democracy and legitimacy.
The above may ultimately be referred, with regard to the European Convention on Human Rights Act, 2003, and the Treaty of the European Union, to the European Court of Justice. The rule of law ensures the validity and lawfulness of public power. Abusive or excessive power used may be quashed or prohibited by the courts. It is a constitutional requirement. Persons exercising public functions should act in accordance with law. If they fail to do so the legal phrase used is acting “Ultra Vires”. The law expects that persons should be fairly treated. Legitimate expectation is a reasonable expectation based on promise and the rule of law.
Proportionality is a principle for consideration when the state has admitted the infringement of rights and it is applied where lack of justification is proved. It applies to the exercise of administrative powers, not statutory powers. The exercise of rights permitted by the Constitution is subject to the test of proportionality that minimizes restraint on those rights, keeping in mind the common good in a democratic society. This is supported by the TEU and respected through the rule of subsidiarity. Reason must be adequate in any decision and it cannot be arbitrary or capricious. This reflects morality, the common law and the freedom of individual autonomy. One must be treated with humanity and with respect with regard to the integrity and rationality of decisions which the applicant is affected by.
Fraud, bad faith or misuse of power unravels everything in an affected decision.
Member States are now bound to the Sovereignty of the European Union. European Law now takes precedence over domestic law of Member States. European Law requires for an affected litigant an effective remedy and an effective review mechanism in accordance with the general principles of European Law. In this circumstance, legality, rationality and procedural fairness as a test is overseen with the general principles of European Law and The Constitution of Ireland, 1937. Human Rights are reinforced by effective judicial control in accordance with Article 6 of the Equal Treatment Directive and Article 13 for effective remedy.
Member States are liable in damages for breach of legal obligations imposed by European Law. National courts are required to apply European law within their jurisdiction. Breach of European Law by an Irish or other Member State is a ground for Judicial Review that may be referred to the European Court of Justice. The remedy in judicial review lies in the discretion of the court of the Member State absent a European legal point but in matters that affect rights of European provenance or established European law, a judge has no discretion. A reference to the European Court must be made for guidance under Article 267. A failure by the domestic national court of a Member State to make such reference to the European Court may be appealed to the European Court.
However, a good lawyer will always avoid litigation whenever possible. A good lawyer will seek a fair hearing for a client or a fair executive or administrative determination of the issues to be considered in any case by negotiation. Whoever makes the decision must act fairly and properly. There must be an insistence on a universal sense of fairness and propriety in any decision making and an absence of bias or undue partiality, having due regard to the essential inherent power of the court to uphold the rule of law in all circumstances.
It is important to exhaust all domestic Member State remedies before referring matters to the European Court. The domestic courts may seek a preliminary ruling under Article 267 in the course of a judicial review concerning the interpretation of the provisions of the Treaty of Europe or anything that derives thereof. Article 35 TEU gives the European Court of Justice the jurisdiction to give the preliminary ruling. The power to refer the matter is vested in the domestic court of the Member State concerning the validity and interpretation of acts of community institutions or other bodies established. The cost of this reference is a matter for the court of the Member State.
There is little point in having rights when one cannot afford to enter the door of the courts. The court will cater for the genuine case and assist the impoverish litigant. Speak to us about this!
We at A. C. Pendred and Company, Solicitors will be very happy to discuss these matters with you.