Supreme Court (Ireland)
Encyclopedia
The Supreme Court of Ireland is the highest judicial authority in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...

. It is a court of final appeal and exercises, in conjunction with the High Court, judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

 over Acts of the Oireachtas
Law of the Republic of Ireland
The law of the Republic of Ireland consists of constitutional, statute and common law. The highest law in the Republic is the Constitution of Ireland, from which all other law derives its authority...

 (Irish parliament). The Court also has jurisdiction to ensure compliance with the Constitution of Ireland
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...

 by governmental bodies and private citizens. The Court sits in the Four Courts
Four Courts
The Four Courts in Dublin is the Republic of Ireland's main courts building. The Four Courts are the location of the Supreme Court, the High Court and the Dublin Circuit Court. The building until 2010 also formerly was the location for the Central Criminal Court.-Gandon's Building:Work based on...

 in Dublin.

Composition

The Supreme Court consists of its president called the Chief Justice
Chief Justice of Ireland
The Chief Justice of Ireland is the president of the Supreme Court of Ireland.Under Constitution of Ireland, the Chief Justice of Ireland also occupies several positions ex officio, these include;* A possible judge of the High Court....

, the President of the High Court who is an ex officio member of the court and normally sits in the High Court, and at least seven ordinary members. The Supreme Court sits in divisions of three, five or seven judges. Two or more divisions may sit at the same time. When determining whether the President is permanently incapacitated within the meaning of Article 12 of the constitution, ruling on the constitutionality of a bill referred to it by the President under Article 26, or ruling on the constitutionality of any law the court must consist of at least five members.

Judges of the Supreme Court are appointed by the President of Ireland
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...

 in accordance with the binding advice
Advice (constitutional)
Advice, in constitutional law, is formal, usually binding, instruction given by one constitutional officer of state to another. Especially in parliamentary systems of government, Heads of state often act on the basis of advice issued by prime ministers or other government ministers...

 of the Government (cabinet), who, since 1995, act in turn on the non-binding advice of a judicial advisory board.

Current members

Name Since Alma mater
Alma mater
Alma mater , pronounced ), was used in ancient Rome as a title for various mother goddesses, especially Ceres or Cybele, and in Christianity for the Virgin Mary.-General term:...

Mandatory retirement Notes
Susan Denham
Susan Denham
Susan Denham is the Chief Justice of the Supreme Court of Ireland. She was appointed by the President of Ireland on 25 July 2011...

Dec 1992 TCD
Trinity College, Dublin
Trinity College, Dublin , formally known as the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin, was founded in 1592 by letters patent from Queen Elizabeth I as the "mother of a university", Extracts from Letters Patent of Elizabeth I, 1592: "...we...found and...

, Columbia University
Columbia University
Columbia University in the City of New York is a private, Ivy League university in Manhattan, New York City. Columbia is the oldest institution of higher learning in the state of New York, the fifth oldest in the United States, and one of the country's nine Colonial Colleges founded before the...

, King's Inns
King's Inns
The Honorable Society of King's Inns , is the institution which controls the entry of barristers-at-law into the justice system of Ireland...

2017 Chief Justice since 2011, First female judge appointed
John L. Murray
John L. Murray
John Loyola Murray is an Irish judge and served as the Chief Justice of Ireland from 2004 to 2011.Murray was born in Limerick in 1943 and educated at Crescent College, Limerick, Rockwell College, County Tipperary, University College Dublin, and the Honorable Society of King's Inns. He was...

1999 UCD
University College Dublin
University College Dublin ) - formally known as University College Dublin - National University of Ireland, Dublin is the Republic of Ireland's largest, and Ireland's second largest, university, with over 1,300 faculty and 17,000 students...

 (B.C.L.
Bachelor of Civil Law
Bachelor of Civil Law is the name of various degrees in law conferred by English-language universities. Historically, it originated as a postgraduate degree in the universities of Oxford and Cambridge, but many universities now offer the BCL as an undergraduate degree...

), King's Inns
2015 Chief Justice 2004–11
Adrian Hardiman
Adrian Hardiman
Adrian Hardiman has been a justice of the Supreme Court of Ireland since 7 February 2000. He received the rare honour of being appointed directly from the Bar to Ireland's highest court. Many commentators were surprised by his appointment as he was a relatively young man making it likely he would...

Feb 2000 UCD (B.A. Hist.), King's Inns 2021
Nial Fennelly
Nial Fennelly
Nial Fennelly has served as a judge of the Supreme Court of Ireland since 2000 and was an Advocate General of the European Court of Justice from 1995 to 2000. He was educated at Clongowes Wood College, took a degree in economics at University College Dublin and completed his Bar studies at King's...

Oct 2000 UCD (B.A. Econ.), King's Inns 2014
Fidelma Macken
Fidelma Macken
Fidelma O'Kelly Macken is a judge of the Supreme Court of Ireland since 2005. She was appointed a High Court judge in 1998. She succeeded John L. Murray, Chief Justice since July 2004, as Ireland's appointee on the European Court of Justice from 5 October 1999 to 22 September 2004...

TCD, King's Inns 2015
Dec 2006 UCD (B.C.L.), Blackhall Place
Law Society of Ireland
The Law Society of Ireland is the educational, representative and regulatory body of the solicitors' profession in the Republic of Ireland...

2012 Ex officio 2001–06
Donal O'Donnell
Donal O'Donnell
Donal O'Donnell is a judge of the Supreme Court of Ireland since 2010.He was born in Belfast, Northern Ireland and was educated at St. Mary's Christian Brothers' Grammar School, Belfast, University College Dublin, King's Inns and the University of Virginia....

Mar 2010 UCD (B.C.L.), UVA
University of Virginia
The University of Virginia is a public research university located in Charlottesville, Virginia, United States, founded by Thomas Jefferson...

 (LL.M), King's Inns
2029
Liam McKechnie
Liam McKechnie
Liam McKechie is a judge of the Supreme Court of Ireland. He was educated at Presentation Brothers College, Cork, University College Cork and the King's Inns. He was called to the bar in 1972 and became a Senior Counsel in 1987. He was elected chairman of the Bar Council in 1999, and was appointed...

Jun 2010 UCC (B.C.L.), King's Inns 2021
Nicholas Kearns
Nicholas Kearns
Nicholas Kearns is the President of the High Court of Ireland, and ex-officio member of the Supreme Court. He was appointed a judge of the High Court in 1998 and was appointed to the Supreme Court in November 2004. He is the most senior Irish judge after Chief Justice Susan Denham. He was...

Oct 2009 UCD (B.C.L.), King's Inns 2016 President of the High Court, Ex officio

Tenure

Under the Courts and Court Officers Act, 1995 the retirement age of ordinary judges of the Supreme Court was reduced from 72 years to 70 years. Judges appointed prior to the coming into operation of that Act may continue in office until aged 72. The Courts (No. 2) Act, 1997 limited the term of office of a person appointed to the post of Chief Justice after the coming into operation of the Act to a period of seven years. A former Chief Justice may continue as a member of the Court until he or she reaches the statutory retirement age.

Jurisdiction

The Supreme Court hears appeals from the High Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court. The Court's power to hear appeals can be severely restricted (as it is from the Court of Criminal Appeal and the Courts-Martial Appeal Court) or excluded altogether, with the exception of appeals concerning the consistency of a law with the constitution. The Supreme Court also hears points of law referred to it from the Circuit Court.

The Supreme Court only has original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...

 in two cases. This is when a Bill is referred to it by the President
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...

 for an opinion on its constitutionality before promulgation
Promulgation
Promulgation is the act of formally proclaiming or declaring a new statutory or administrative law after its enactment. In some jurisdictions this additional step is necessary before the law can take effect....

 under Article 26 of the Constitution or when the court must determine under Article 12 of the Constitution whether the President has become incapacitated.

The Supreme Court has little discretion to determine which cases it hears as requirements to seek the leave of either the trial court or the Supreme Court itself before an appeal may be brought are rare.

Judicial review

The Supreme Court exercises, in conjunction with the High Court, the power to strike down laws which are inconsistent with the constitution. The courts also grant injunctions against public bodies, private bodies and citizens to ensure compliance with the constitution. The Irish constitution explicitly provides for the judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

 of legislation. Acts passed after the coming into force of the constitution, are invalid if "repugnant" to the constitution (Article 15.4.2°), while laws in force prior to the coming into force of the constitution are invalid if "inconsistent" with the constitution (Article 50.1). The constitution also provides, under Article 26, for the judicial review of bills before they are (or would have been) signed into law. The power to refer bills is personally exercised by the President after consulting the Council of State
Council of State (Ireland)
The Council of State is a body established by the Constitution of Ireland to advise the President of Ireland in the exercise of many of his or her discretionary, reserve powers...

. When the Supreme Court upholds the constitutionality of a bill referred to it under Article 26, its constitutionality can never again be questioned in any court whatsoever (Article 34.3.3°).

Supreme Court judges are normally free to deliver their own judgements, whether dissenting and concurring. However when considering the constitutionality of an Act or Bill passed after the coming into force of the constitution, only a single judgement may be delivered by the Court (Articles 34.4.5° and 26.2.2°). Dissenting and concurring are allowed for considering the constitutionality of an Act passed before the coming into force of the constitution (Article 50).

Jurisprudence

After a slow start in its first two decades of the Constitution, the Supreme Court has expounded a significant constitutional jurisprudence. This slow start was partly because, prior to 1922, the whole of Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...

 was a part of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

, and Supreme Court judges had been trained in British jurisprudence, which stresses the sovereignty of parliament
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...

 and deference to the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...

. It was also the case that under the 1922 Constitution there was a right of appeal to the Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...

 which was exercised on a number of occasions. Nonetheless from the 1960s onwards the Court has made a number of significant decisions. It has, for example:
  • Developed a doctrine of unenumerated rights (not entirely unlike its American namesake
    Unenumerated rights
    Unenumerated rights are sometimes defined as legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law. ...

    ) based on an expansive reading of Article 40.3.1°, with elements of natural law and liberal democratic theory.
  • Developed and defended the separation of powers
    Separation of powers
    The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

    .
  • Ruled that major changes to the treaties establishing the European Union
    European Union
    The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

     may not be ratified by the state unless allowed by a previously passed constitutional amendment.
  • Ruled that Articles 2 and 3
    Articles 2 and 3 of the Constitution of Ireland
    Article 2 and Article 3 of the Constitution of Ireland were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment which took effect on 2 December 1999...

     (as they stood before 1999) did not impose obligations upon the state that were enforceable in a court of law.
  • Discovered a broad right to privacy in marital affairs implicit in Article 41.
  • Discovered a right to an abortion where there is a risk to the life of the mother through suicide in Article 40.3.3°.
  • Imported the doctrine of proportionality
    Proportionality (law)
    Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...

     into Irish law.

Significant rulings

  • 1950 – Buckley v. The Attorney General (right to property)
  • 1965 – Ryan v. The Attorney General (doctrine of unenumerated rights)
  • 1966 – The State (Nicolaou) v. An Bord Uchtála (constitutional family only that based on marriage)
  • 1971 – Byrne v. Ireland (unconstitutionality of state immunity in tort)
  • 1974 – McGee v. The Attorney General (marital privacy and contraceptives)
  • 1976 – De Búrca v. The Attorney General (equality)
  • 1979 – East Donegal Co-operative v. The Attorney General (natural justice
    Natural justice
    Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...

    )
  • 1983 – Norris v. The Attorney General (criminalisation of homosexuality upheld)
  • 1987 – Crotty v. An Taoiseach
    Crotty v. An Taoiseach
    Crotty v. An Taoiseach was a legal action taken in 1987 in the High Court of Ireland and in the Supreme Court on appeal by Raymond Crotty, historian and economist against the Irish Government...

    (ratification of European Union
    European Union
    The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

     treaties)
  • 1988 – Attorney General (Society for the Protection of the Unborn Child) v. Open Door Counseling (information relating to abortion)
  • 1988 – Webb v. Ireland (non-survival of crown prerogatives)
  • 1989 – Kennedy v. Ireland (right to privacy)
  • 1992 – Attorney General v. X
    Attorney General v. X
    Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....

    , more commonly the "X case" (abortion and risk of suicide)
  • 1993 – Attorney General v. Hamilton (separation of powers)
  • 1993 – Meagher v. The Minister for Agriculture (European Communities Act)
  • 1994 – Heaney v. Ireland (doctrine of proportionality
    Proportionality (law)
    Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...

    )
  • 1995 – Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill
    Re the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill
    Re the Regulation of Information Bill was a 1995 Irish Supreme Court case which established that positive law is superior to natural law in the Irish constitutional order.-Background:...

    (supremacy of written constitution)
  • 1995 – Re a Ward of court (right to die)
  • 1995 – McKenna
    Patricia McKenna
    Patricia McKenna is an Irish independent politician. She served as a Green Party Member of the European Parliament for the Dublin constituency from 1994 to 2004.-Background:...

     v. An Taoiseach
    (referendum campaign finance)
  • 2001 – Sinnott
    Kathy Sinnott
    Kathy Sinnott is a disability rights campaigner and a former politician. She represented the South constituency in Ireland in the European Parliament from 2004 to 2009....

     v. Minister for Education
    (limitations on right to education)
  • 2003 – Lobe and Osayande v. Minister for Justice (deportation of the parents of citizens)
  • 2006 – Curtin
    Brian Curtin
    Brian Curtin is a former barrister and Irish circuit court judge, who was tried for possessing images of child pornography. After the case collapsed, the question of whether Curtin could continue as a judge became the focus of political and legal dispute. An impeachment motion was launched in the...

     v. Dáil Éireann
    (removal of judges)
  • 2006 – A. v. The Governor of Arbour Hill Prison
    Arbour Hill Prison
    Arbour Hill Prison is a prison and military cemetery located in the Arbour Hill area near Heuston Station in the centre of Dublin, Ireland. The prison is the national centre for male sex offenders.-Architecture:...

    (unconstitutionality of a law does not retrospectively invalidate all actions taken under it)
  • 2009 – McD v. L
    McD v. L
    McD v. L is a ruling by the Supreme Court of Ireland, handed down on 10 December 2009, that granted a sperm donor visitation rights to a child born via artificial insemination...

    (established parental rights for sperm donors)

Sharing of sovereignty

Today the Supreme Court shares its authority with two supra-national courts: the European Court of Justice
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...

 (ECJ) and the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 (ECHR). In matters relating to the correct interpretation of European Union law, decisions of the ECJ take precedence over those of the Irish Supreme Court. The relationship between the Irish Courts and the ECHR is more complicated as the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 only enjoys interpretative, sub-constitutional status in the Republic. Acts of the Oireachtas, when possible, are to be interpreted in line with the Convention, but the Convention must give way both to clear legislative intent and to any countermanding requirement of the Constitution; and convention provisions cannot be relied upon as separate causes of action.

Supreme Court decisions cannot be appealed, as such, to either court. The ECJ hears cases referred to it by the Irish Courts by way of Case Stated
Case Stated
Case stated is an appeal mechanism, a legal function, available in England and Wales to review a magistrates' court decision on a point of law. It is a statement of facts prepared by one court for the opinion of another on a point of law....

 and while unsuccessful litigants before the Supreme Court can apply to the ECHR, the latter court's decision does not have the effect of voiding the Supreme Court's decision. Decisions of the ECHR do not automatically override Irish law and may require legislation or perhaps even a constitutional referendum to be implemented in full.

See also

  • List of Justices of the Supreme Court of Ireland
  • Supreme court
    Supreme court
    A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...

  • Dáil Courts
    Dáil Courts
    During the Irish War of Independence, the Dáil Courts were the judicial branch of government of the short-lived Irish Republic. They were formally established by a decree of the First Dáil Éireann on 29 June 1920, replacing more limited Arbitration Courts that had been authorised a year earlier...

  • Supreme Court of the Irish Free State
    Supreme Court of the Irish Free State
    The Supreme Court of the Irish Free State was the state's Court of Final Appeal. It was created in Article 64 of the Irish Free State Constitution. It was presided over by a Chief Justice...

  • Judiciary
    Judiciary
    The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

  • History of the Republic of Ireland
    History of the Republic of Ireland
    The Irish state originally came into being in 1922 as the Irish Free State, a dominion of the British Commonwealth, having seceded from the United Kingdom under the Anglo-Irish Treaty. It comprises of 26 of Ireland's 32 counties...

  • Abortion in the Republic of Ireland
  • Philip Sheedy Affair
    Philip Sheedy Affair
    The Philip Sheedy affair was an Irish political and judicial controversy which resulted in the resignation of both a Supreme Court and High Court judge.- Background :...


External links

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