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strong versus weak
JR of Legislation
JR of executive action

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What kind of JR?

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Friends of the Irish Environment -v- The Government of Ireland & Ors

Date Delivered31 July 2020

Neutral Citation[2020] IESC 49

Date Uploaded05 August 2020

Composition of the CourtClarke C.J., Irvine P., O'Donnell J., MacMenamin J., Dunne J., O'Malley J., Baker J.

Associated documents

Below includes the list of documents relevant to the judgment above

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Return to Judgments Search Friends of the Irish Environment -v- The Government of Ireland & Ors Date Delivered31 July 2020 Neutral Citation[2020] IESC 49 Date Uploaded05 August 2020 Composition of the CourtClarke C.J., Irvine P., O'Donnell J., MacMenamin J., Dunne J., O'Malley J., Baker J.

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Conflicts of rights
Zero sum cases
In game theory and economic theory, a zero-sum game is a mathematical representation of a situation in which each participant's gain or loss of utility is exactly balanced by the losses or gains of the utility of the other participants.
Health versus right to protest?

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How Different are Waldron's and Fallon's Core Cases for and Against Judicial Review?

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Richard Fallon

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Ryanair has lost its High Court challenge against travel measures introduced by the Government in the wake of the coronavirus pandemic. The airline had claimed the measures amounted to a legal restriction on travel in and out of the country. The State disputed those claims, arguing the measures are merely advisory and not binding in nature. Mr Justice Garrett Simons ruled on Friday that the Government had not exceeded its executive powers and trespassed upon the legislative power in relation to the measures. Ryanair's action was against An Taoiseach Ireland and the Attorney General, seeking various orders and declarations, including one setting aside the measures announced in late July. This included the advice not to travel outside of Ireland save for essential purposes.

Ryanair also challenged the requirement for those returning to the State from countries not on the designated "green list" to restrict their movements and self-isolate for 14 days. The company claimed the restrictions were unconstitutional and breached various Health Acts, the European Convention of Human Rights and the European Charter of Fundamental Rights. It said the Government's travel measures were outrageous, confusing and a detriment to both the public and its business.

The State had argued Ryanair had no legal basis to bring its challenge against the measures, that the courts could not intervene with this advice and that the airline's proceedings were moot or pointless.

Aer Lingus was a notice party to the proceedings and supported Ryanair's action. In his judgment on Friday, Mr Justice Simons said the Government acted lawfully in providing travel advice and public health advice during the coronavirus pandemic on a non-statutory basis.

The Government was entitled, in the exercise of the executive power, to provide such advice to the public, he said. Its entitlement had not been ousted by the enactment of legislation, such as the Health Acts 1947 and 1970. As of August 2020, the information published on the Government's websites provided an "accurate portrayal" of the legal status of the travel advice and public health advice, the judgment continued.

"The advice to avoid non-essential travel and to restrict movements on entry to the State is just that: advice," Mr Justice Simons said. "The Government merely requests that persons entering the State from a country not on the "green list" restrict their movements for 14 days. As of August 2020, there had been no legal requirement to do so."

Where a failure to observe the advice might result in financial disadvantage for some, for example those on jobseeker's benefit, there was a "specific legal basis for same under the social welfare legislation, which has not been challenged," he said. The Government's websites "do not portray the travel advice or health advice as having a legal status which it does not actually enjoy." Mr Justice Simons said the publication of the travel and public health advice was consistent with EU law and in particular did not breach the right to freedom of movement under the Treaty on the Functioning of the EU. Ryanair had "sensibly" conceded that EU member states were entitled to derogate from EU law rights on public health grounds.

"Ryanair's principal complaint is that, as a matter of domestic and constitutional law, the Government in publishing the impugned travel advice exceeded its executive powers and trespassed upon the legislative power," Mr Justice Simons said. These arguments were rejected. He emphasised that Ryanair had disavowed any attempt to challenge the "underlying merits" of the travel advice, and "this judgment has nothing to say in respect of the wisdom or otherwise of the travel advice".

"In particular, it has nothing to say on the methodology or criteria by which the 'green list' of countries had been prepared," the judge concluded. He also found that the existence of a statutory requirement to complete a passenger locator form "does not have the legal effect of translating the travel advice into mandatory form." Because it applied irrespective of whether a passenger had arrived from "green list" countries, it could not be characterised as intended to enforce compliance with the "green list".

Among Ryanair's other points was an argument that the travel advice was "imprecise" but the judge concluded it was clear. The evidence did not demonstrate there had been "any interference with Ryanair's freedom to conduct its business in accordance with EU law and national laws and practices," Mr Justice Simons said. He acknowledged that the proceedings raised "important issues as to the separation of powers" and that the terms of the travel advice were a matter of "ongoing controversy, even in their revised form". The judge found that as Ryanair had raised arguable legal issues he was formally granted leave to bring the application, but dismissed "the substantive application in its entirety." He proposed a costs order against Ryanair subject to submissions.

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Ryanair loses High Court action over Ireland's travel advice

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Ryanair has lost its High Court challenge against travel measures introduced by the Government in the wake of the coronavirus pandemic. The airline had claimed the measures amounted to a legal restriction on travel in and out of the country. The State disputed those claims, arguing the measures are merely advisory and not binding in nature.

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the international dimension

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Impact of the European Convention on Human Rights

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Avenue de l'Europe
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At age 20, Oxana Rantseva was allegedly trafficked from Russia to Cyprus for sexual exploitation. Two weeks later, she was found dead beneath a balcony after trying to escape. The Strasbourg court found that the authorities had failed to protect her and also failed to properly investigate after her death. Following the events, a series of measures were carried out to fight human trafficking.

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From the age of 14, Henriette Akofa Siliadin was kept in domestic servitude. She worked all day, 7 days a week for over 4 years, for no pay. The people responsible could not be properly brought to justice, because French law had not criminalised their actions. The case helped bring about legal reforms to combat human trafficking.

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Mrs Airey wanted to be legally separated from her husband, who was allegedly a violent alcoholic. However, there was no legal aid and she could not afford the lawyers' fees. The European Court of Human Rights ruled that the lack of legal aid effectively denied Mrs Airey access to a court, breaching her basic rights. Legal aid for such cases was introduced in Ireland in the following year.

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David Norris suffered from anxiety attacks and depression after realising that any open expression of his homosexuality could lead to a criminal prosecution. The Strasbourg court ruled that the criminalisation of his sexuality breached his basic rights. In 1993, this led to the full legalisation of homosexual acts between consenting adults under Irish law.

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Videos | Impact of the European Convention on Human Rights

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Skip to Content Avenue de l'Europe F-67075 Strasbourg Cedex Tel. +33 (0)3 88 41 20 00 www.coe.int At age 20, Oxana Rantseva was allegedly trafficked from Russia to Cyprus for sexual exploitation. Two weeks later, she was found dead beneath a balcony after trying to escape.

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Parliamentary sovereignty versus review of constitutionality of legislation

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Parliamentary sovereignty versus review of constitutionality of legislation

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The Prime Minister's recent announcement that Parliament would be prorogued, thereby severely curtailing the opportunity for parliamentary debate, raises important issues of constitutional principle and law, and also issues concerning fact and causation. They are examined in turn.

Constitutional Principle and Law

We begin with constitutional principle and law. We seek to decide whether the courts should intervene via judicial review, in order to prevent Parliament from being prorogued. We do not, however, begin with a clean slate. We look to case law where the courts have intervened to curtail prerogative power, discern the underlying principles, and then decide whether those are applicable to the case at hand.

Consider then the principal case law concerning constraints on prerogative power dating back to the seventeenth century. The constraints on prerogative power embodied in Proclamations, De Keyser and Miller all protect parliamentary sovereignty. Parliament is the legitimate legislator within the UK and the case law protects that authority from being undermined. If the executive could change the law of its own volition, it could thereby bypass legislation without amendment or repeal, hence the principle in Proclamations. If the executive could use the prerogative where Parliament had already addressed the issue in an existing statute it could then avoid the legislation crafted by Parliament, hence the principle in De Keyser, and its extension to cases where the prerogative would frustrate the legislation. If the executive could render a constitutional statute devoid of effect through recourse to the prerogative, the statute would not be worthy of that appellation, hence the reasoning on this issue in Miller, drawing on that in HS2.

Proclamations protects parliamentary sovereignty directly, by preventing recourse to the prerogative where it would change the law. De Keyser and Miller protect sovereignty indirectly: the former by precluding use of the prerogative where the formal law is left intact, but the executive seeks to circumvent it by use of the prerogative; the latter case by preventing a constitutional statute from being emasculated through executive action, even if it remained formally on the statute book.

The salient issue in relation to prorogation is whether the Prime Minister's discretionary power should be limited pursuant to the principles underlying the case law set out above. The argument for an affirmative answer is compelling. This is so for two related reasons.

First, to contend that there is some difference between the existing case law and the present situation does not withstand normative examination. The reality is to the contrary, the rationale for intervention to protect parliamentary sovereignty is even stronger than in the preceding cases. Consider the following two propositions. Parliament has enacted a statute, the executive seeks to circumvent it by recourse to the prerogative, and the court intervenes to protect parliamentary sovereignty via the De Keyser principle. Parliament wishes to exercise its legitimate authority through enactment of a statute, or in some other way, the executive precludes this through prorogation, and the court is said to be powerless to intervene.

This distinction makes no principled sense, more especially because the latter abuse of discretionary power is more far-reaching and significant than the former. The former impacts only on a particular statute. The latter constitutes a pre-emptive strike that takes Parliament out of the entire game for the crucial period during which it is prorogued. It affects not merely one piece of legislation, but its capacity to exercise the totality of its legislative authority, thereby severely curtailing the opportunity for parliamentary voice on an issue that, whatsoever one's views about Brexit, is of major importance for the UK's future. This is, moreover, the reason why judicial intervention in this instance would not signal some general judicial intrusion in this terrain. The use of prorogation in this instance is singular, and warrants judicial intervention.

Secondly, the case for judicial intervention is also compelling because of the impact of the abuse of power in relation to prorogation on the sovereignty principle itself. The sovereignty of Parliament is the foundational principle underlying the unwritten UK constitution. This sovereignty resides with Parliament, not with the executive. Compare once again the preceding scenarios, and their relative impact on this foundational principle. The De Keyser scenario represents a challenge to sovereignty, since the executive seeks to bypass an existing statute, through recourse to the prerogative. It was for this very reason that the House of Lords intervened to prevent this. The prorogation scenario is more far-reaching in its impact on sovereignty. The reason is not hard to divine. The political discussion of prorogation by the present government was predicated on the assumption that it could be legitimate for the Prime Minister to make use of this power intentionally to bypass what was felt to be a recalcitrant Parliament. This is not and cannot be constitutionally correct. To subscribe to such reasoning per se diminishes parliamentary sovereignty as a foundational principle, and transforms the UK constitutional order such that the cards become stacked in the executive's favour.

Nor can such reasoning be defended on the ground that the Prime Minister believes that this use of prorogation would be justified in order to fulfil the will of the people. Let us leave aside the fact that the Prime Minister presently has the slender legitimacy that comes from a vote of 92,000 Conservative members; let us leave aside also the fact the divination of the will of the people in terms of being content with a no-deal Brexit is fraught with difficulty. The root problem with this reasoning is more serious, and betrays a deeper lack of understanding of our constitutional order. The sovereignty principle inheres in Parliament and the totality of members thereof at any one point in time. The very idea that Parliament can be swept aside because its view does not cohere with the executive is to stand principle on its head. We are constitutionally impoverished if we regard this as the new constitutional norm.

Fact and Causation

There is no doubt that supporters of prorogation will attempt to blunt the preceding argument by repeating the claim that it was not driven by the desire to forestall discussion of Brexit, but because the Prime Minister wished to press ahead with his new agenda, and did not wish to wait until after the presently existing Brexit deadline. This is then coupled with the argument that the present parliamentary session has been very long, and that it is legitimate to signal the new beginning with the Queen's speech scheduled for mid-October.

A response to this argument, voiced by many in the aftermath of the prorogation announcement, is simply to regard it as a veneer that conceals the real reason for the prorogation, which is to limit the time for parliamentary voice on Brexit. Truth to tell, there have been government statements post the prorogation announcement that acknowledge its impact on the domestic Brexit agenda, and that in Brussels.

A second response would be that, even if we assume that the desire to press ahead with a new agenda represented reality, the costs in terms of the impact on parliamentary sovereignty are simply far too great, more especially at this crucial time for Brexit deliberations. Indeed, one could press further in this regard: given that the present parliamentary session has lasted a long time, a few more weeks would hardly make a crucial difference in terms of getting the Prime Minister's new agenda on the road.

The third response is that the preceding argument makes no sense in its own terms. Consider the following. We have a fact, the Prime Minister's statement that he wishes to press ahead with his new agenda. We have assertion of a second fact, prorogation is said to be necessary to enable the first fact to happen. There is assumed to be causation between the two. This assumption is a non-sequitur. If the Prime Minister wishes to kick start his new agenda now, there is nothing legally or politically to prevent him from instructing civil servants in the relevant departments from pressing on to draft the requisite legislation, sort out the finances and the like. They were probably already doing this before prorogation. The reality is not merely that the causation is lacking. It is that prorogation will almost certainly hamper prime ministerial efforts to roll out the new agenda. If prorogation occurs, Parliament does not sit, no legislation is enacted, and there is a danger that some necessary Brexit legislation will be lost or impeded because of prorogation. If Brexit happens there will then be a log-jam of Brexit-related measures that require enactment, thereby pushing into the long grass efforts legislation designed to address non-Brexit issues.
Paul Craig, Professor of English Law, St John's College, Oxford
(Suggested citation: P. Craig, 'Prorogation: Constitutional Principle and Law, Fact and Causation', U.K. Const. L. Blog (2nd Sept. 2019) (available at https://ukconstitutionallaw.org/))

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Paul Craig: Prorogation: Constitutional Principle and Law, Fact and Causation

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The Prime Minister's recent announcement that Parliament would be prorogued, thereby severely curtailing the opportunity for parliamentary debate, raises important issues of constitutional principle and law, and also issues concerning fact and causation. They are examined in turn. Constitutional Principle and Law We begin with constitutional principle and law.

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Arguments against Judicial review of legislation

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Arguments against Judicial review of legislation

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Jeremy Waldron

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If ever there were an episode to fortify the convictions of those of us who advocate undergirding textualism in statutory interpretation with a healthy portion of natural law reasoning, it would be Bostock. We defenders of a natural law-based legal order posit that there exist objective standards of judgment derived from human nature itself about which one can test certain propositions as either plausible or implausible, true or untrue, right or wrong. Natural law informed America's Founders as they sought to justify an "appeal to heaven" for the moral rightness of the American experiment. The Founders tapped natural law as the basis for the axiomatic first principles, such as the inherent equality of all men, upon which to construct a morally legitimate government.

Bostock has revealed the limits of a purely proceduralist method of legal interpretation, shorn of its natural law underpinning. A jurisprudence rooted in natural law would have strained to answer the rudimentary question of what actually constitutes a man and a woman for purposes of unjust discrimination. Gorsuch's majority opinion sidesteps that question by assuming that a mere willful assertion of one's sex suffices for what Title VII calls "sex." The majority opinion thus elides, in a bit of circular reasoning, a central reason for the litigation, in the first instance: clarifying the legal and social status of transgenderism.

A case as wrongly decided as Bostock would, in an earlier era, have immediately triggered the equivalent of constitutional "antibodies." Congress would bring forth bills to limit the scope and reach of the holding, along with denouncing the Court's institutional arrogance in smuggling in a determination of what constitutes a man and a woman on the flimsiest of pretext. The president would explain that his administration would ensure that the case be applied only to the two named litigants to the suit, since the holding did not convince him to widen its application.

That is how a healthy republic would deal with a ruling as brazen as Bostock. Alas, our republic is sick. The president responded, cryptically, that the ruling was "powerful." Leading Republicans on Capitol Hill resigned themselves to acceptance-or, in the case of Sen. Josh Hawley (R-MO), wondering how we got here. Where was a plan, or even just the fire, to counter a decision of a rogue court-and, in so doing, marking off the limits to abhorrent judging? Is this not supposed to be among the most basic responsibilities of governing? To borrow from iconic baseball skipper Casey Stengel, "can't anybody here play this game?"

The sickness that ails our experiment in self-government might be understood as undue deference to the idiosyncratic legal prognostications of the federal judiciary-or what constitutional theorists call " judicial supremacy." We propose to restore the original understanding of constitutionality as an ongoing conversation between all three coordinate branches of the federal government. Abraham Lincoln understood the infamous Dred Scott decision as not strictly binding on him as president. As the Great Emancipator famously said in his First Inaugural Address: "[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln argued he would not be obliged to act upon the principle articulated in Dred Scott on other measures coming before his administration-even on issues quite different from a slave litigating over his freedom. The Lincoln administration granted passports to black students wishing to study abroad and patents to black inventors. Passports and patents had been denied on the basis of the holding in Dred Scott that blacks could not be citizens and, according to that logic, they could not carry American passports or receive patents. Lincoln's determination in defying Dred Scott vindicated the Declaration's principle that all men are created equal and taught that pushing back was a legitimate act of political constitutionalism.

Why are our elected representatives and president thus far so afraid to push back against a ruling that Justice Samuel Alito rightly assailed, in his Bostock dissenting opinion, as "pirate textualism?" We think it has to do with the unfortunate mental association, for many, between procedurally countering decisions of the Court and the substantive segregationist positions of the civil rights era. But this mental association is historically myopic, as Lincoln's statesmanship reminds us; and Brown v. Board of Education's basic proposition of upholding the principle of racial equality is infinitely sounder than the metaphysical sidestep of Bostock, in any event.

Conservatives have become accustomed to treating the decisions of the Supreme Court as final. And in cases of ultimate import, the stakes are so high. But this, at root, is an iatrogenic problem. It is only because so many conservatives mistakenly believe the modest judicial review of Marbury v. Madison means the soft despotism of judicial supremacy that this understanding pervades popular thought about the role of the courts in settling contested legal issues. A ruling is only as strong as the reasoning that supports it.

We ask our conservative brethren to embrace an understanding of the decisions of the Court as final if they are right-not right because they are final. The logic of the separation of powers and constitutionalism entrusts great power to the other branches to push back on questionable determinations made at the highest levels. We are thankful the Founders envisioned a structural "Break Glass In Case of Emergency" provision. Bostock provides an excellent opportunity to show Casey Stengel that indeed there are still some who can play this game.

Garrett Snedeker is the deputy director of the James Wilson Institute on Natural Rights and the American Founding and a J.D. student at the Antonin Scalia Law School. Josh Hammer is Newsweek opinion editor, a syndicated columnist, and of counsel at First Liberty Institute.
The views expressed in this article are the writers' own.

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We need to reject judicial supremacy now more than ever | Opinion

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If ever there were an episode to fortify the convictions of those of us who advocate undergirding textualism in statutory interpretation with a healthy portion of natural law reasoning, it would be Bostock.

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Substantial versus procedural judicial review 

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Substantial versus procedural judicial review 

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what is the difference?
Paul Craig/David Dyzenhaus
para. 6.49 Friends of Irish Environment - Clarke J. judgment

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Formal and substantive conceptions of the rule of law an analytical framework