How can an Irish law be challenged?

krd

Is their a direct mechanism for a member of the public to directly challenge an Irish law?

hada

krd wrote: »

Is their a direct mechanism for a member of the public to directly challenge an Irish law?

not a direct method. Article 15.2 of the Constitution gives sole law making power to the Oireacthas.

You can't just decide fill out a form and get a law changed. What you can do, if you have valid grounds, is challenge a piece of legislation as unconstitutional and get it changed.

As a by the way, but why did you want to know??

Spike440

Article 34.3.2 gives jurisdiction to the High Court (and Supreme Court) to decide on the constitutional validity of any law. You need locus standi to bring such a challenge. While a law can be challenged directly by application to the Court, it is also possible to take judicial review against a body alleging that it exercised its powers under an unconstitutional law.

walrusgumble

get elected to Dáil Éireann?:o

dermot_sheehan

Irish Statutes can only be challenged for being unconstitutional or contrary to EU Law.

Two main methods, one would be to Judicially Review a Public Authority acting pursuant to the statute you would like to see struck down under Order 84 of the Superior Court rules, this would be much quicker then plenary proceedings though thos costs for judicial review if you lose are quite high.

The other is you can take plenary proceedings by way of a plenary summons against the state seeking a declarartion that such and such statute is void as per the constitution or as per EU Law.

In both cases you would have to have standing, that is you would have to be effected in someway by the law you're seeking to challenge.

krd

Thanks...

It all seems a prohibitive for one single individual, to challenge even a single statute.

The problem with the kind of democracy we have, if particular minorities (and these multivarious minorities add up) are adversely effected by either statute or regulation, it seems we have no fair recourse to challenge.

While powerful minority groups, such as the Vinters association, can have the law changed at the drop of a hat. Even if their interests are greatly to the detriment of other sectors of the population.

I'm not calling for the legalisation of marijuana. My particular concerns, are regulations that are in place that to act as barriers to entry on the basis of keeping an uneven economic playing field for new entrants, or entrants with insufficent capital to pay the troll tax. The protectionism afforded the vinters association, and in the past, the taxi drivers. Effectively made their government issued licences state backed fungible assets. The detrimental effects of protectionist practices, are not readibly apparent, but they are in effect hidden rents on the rest of the population.

What I would like,, is an effective challenge to some government regulations and departmental practices, which are in effect protectionist. I'll have to look, but there should be anti clientelist law covering the activities of the government.

This is not about the vinters association, there are much wider social problems.

krd

Can the government be challenged with the competition act?

Competition Act, 2002

4.—(1) Subject to the provisions of this section, all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which—


(a) directly or indirectly fix purchase or selling prices or any other trading conditions,


(b) limit or control production, markets, technical development or investment,


(c) share markets or sources of supply,


(d) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage,


(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.

Tom Young

A few points about your last two posts:

1. The Government can be challenged under the Competition Act, but evidence is a huge problem, in addition to issues over proportionality and the separation of powers in relation to what the judiciary will intervene in and not;

2. Most of, if not all of the recent legislation is coming from or motivated by the EU and as such you'll find with some research that challenging that will also be problematic;

3. Lobbying is a career in many cases for many people and Brendan Howlin TD has a bill in the Oireachtas on this at present; and

4. Walrusgumble might be right, you may need to be elected to effect change!

Tom

dermot_sheehan

The state in nearly all cases would never constitute an "undertaking" udner competition law, that is offering goods and services for the market. See the European Court of Justice's judgement in Case C-205/03 Federación Nacional de Empresas de Instrumentación Científica, Médica, Técnica y Dental (FENIN)
v Commission of the European Communities where it held that the spanish health service did not constitute an undertaking under Competition law.

Tom Young

Interestingly though the likes of the VHI for the purposes of the recent judgment at the SC does. I know it was not entirely based on the Comp Act but in the judgment the semi-state is classified as same.

Effectively articles 81/82 of the Treaty of Rome and subsequent EU treaties do allow for JR in effect where competition and state aide are in question. So formally under the Comp Act you're right, but the mechanisms are in place to litigate such activity if the proofs can be found.

Tom

Edit: here's the judgment:http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/163e69db2e4a19e880257488002d186b?OpenDocument

Citing reliefs soungh on appeal: "A declaration that the existence of the 2003 scheme and/or any determination on the part of the first named respondent pursuant to the 2003 scheme would constitute a breach of Article 10 and Article 82 of the EC Treaty or a breach of Article 86 of the EC Treaty."

Art 86:

Article 86. Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in:

(a) directly or indirectly imposing unfair purchase or selling prices or unfair trading conditions;

(b) limiting production, markets or technical development to the prejudice of consumers;

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.