help with constitutional law

pons

I'm a first year undergraduate of law and find constitutional law EXTREMELY difficult,would really appreciate if anyone of knowledge could offer me an insight into this question.
would really appreciate any help and the time given!:):)



In 2018, Ireland witnesses deepening political and economic turmoil, including street violence and civil strife. A consensus develops in certain quarters that the Government and Taoiseach need to be awarded greater powers to restore order. In particular, some suggest that the Government should be able to amend the Constitution without having to hold a referendum. The Thirty-fifth Amendment of the Constitution (Referendums) Bill 2018 proposes to add a new Article 46.6 to the Constitution which provides the following: “The President may at the request of the Taoiseach, and at his absolute discretion, dispense with the requirement of holding a referendum under Article 46.2 of the Constitution and determine, where the common good so require, that an amendment of the Constitution may instead be promulgated by order of the Taoiseach”. The thirty-fifth amendment is passed by a majority of 3,000 votes. During the campaign, the Chair of the Referendum Commission commented several times on RTE television that “this amendment will allow the Taoiseach to effectively restore order in Ireland.” State buildings and vehicles are festooned with “Vote Yes for Order!” paraphernalia. The Taoiseach defends the constitutionality of this on the grounds that the posters and banners in fact printed using private funding. Following its passage into law, the President agrees to several requests of the Taoiseach to amend the Constitution by order rather than through the referendum process. A series of amendments curtail, and in some cases, completely remove the freedoms of expression, association and assembly, while Article 15.2 is amended to allow the Oireachtas to delegate broad legislative powers to the Taoiseach.
Comment on whether the thirty-fifth amendment of the Constitution is, in fact, legally valid.

Soriel

Hey I'm probably in your classes.

1. No issue with the Taoiseach proposing the amendment. Nothing in the Constitution is beyond change.
2. Major issue with Ref C'mmr coming out and saying something so clearly biased. This would have been based on McKenna i.e. that an independent board should actually be independent, but under Hanafin it's v. difficult to prove that the infraction MATERIALLY AFFECTED the outcome of the referendum, but with the new McCrystal case things have changed slightly, but Daly said we wouldn't be penalised for that.
3. State buildings is an issue, under McKenna, as although it only referred to public money, public buildings are public property. Ministerial cars can be used under McKenna for going to and from anything they like, but it's a grey area.
4. After that, things that are passed on the basis of this amendment are Constitutional.

Relax would you? Pass is 40% and you probably already have 10% for Tutorials. good luck! You have a while before Friday so take it easy.

pons

Soriel wrote: »

Hey I'm probably in your classes.

1. No issue with the Taoiseach proposing the amendment. Nothing in the Constitution is beyond change.
2. Major issue with Ref C'mmr coming out and saying something so clearly biased. This would have been based on McKenna i.e. that an independent board should actually be independent, but under Hanafin it's v. difficult to prove that the infraction MATERIALLY AFFECTED the outcome of the referendum, but with the new McCrystal case things have changed slightly, but Daly said we wouldn't be penalised for that.
3. State buildings is an issue, under McKenna, as although it only referred to public money, public buildings are public property. Ministerial cars can be used under McKenna for going to and from anything they like, but it's a grey area.
4. After that, things that are passed on the basis of this amendment are Constitutional.

Relax would you? Pass is 40% and you probably already have 10% for Tutorials. good luck! You have a while before Friday so take it easy.

thanks a MILLION for the help!daly not being one of the best lecturers gave me an excuse to skip many of his lectures hence I'm clueless now,I just hope Im fine on friday,all I want is a pass!:)
thanks alot again!

pons

another question if someone could help me;

Is there such a thing as an unconstitutional amendment? and
Are there limits to the content and scope of constitutional amendments? Are certain constitutional principles immutable - or can any constitutional provision be revised?

Rothmans

pons wrote: »

another question if someone could help me;

Is there such a thing as an unconstitutional amendment?

No so long as its passed in referendum, isn't in breach of EU Constitutional law, or European Human Rights Law etc

Are there limits to the content and scope of constitutional amendments? Are certain constitutional principles immutable - or can any constitutional provision be revised?

See above. Also, I believe there's a section in it somewhere that says that any part of this Constitution can be changed by referendum.

Soriel

"Unconstitutional" amendments don't logically exist because frequently an amendment won't be compatible with the Constitution BECAUSE it's changing the constitution. I think the best case for that is Riordan v an Taoiseach (1) because his argument was that an amendment allowing for divorce contradicted art. 41 (off the top of my head, could be wrong) that says that the Gov will protect the family from attack. It was Barrington J.... saying that most amendments will be contradictory to existing articles.

Yes nothing is beyond revision, including the article that says that nothing is beyond revision.

pons

Rothmans wrote: »

No so long as its passed in referendum, isn't in breach of EU Constitutional law, or European Human Rights Law etc



See above. Also, I believe there's a section in it somewhere that says that any part of this Constitution can be changed by referendum.

really appreciate it,thanks!:)

pons

Soriel wrote: »

"Unconstitutional" amendments don't logically exist because frequently an amendment won't be compatible with the Constitution BECAUSE it's changing the constitution. I think the best case for that is Riordan v an Taoiseach (1) because his argument was that an amendment allowing for divorce contradicted art. 41 (off the top of my head, could be wrong) that says that the Gov will protect the family from attack. It was Barrington J.... saying that most amendments will be contradictory to existing articles.

Yes nothing is beyond revision, including the article that says that nothing is beyond revision.

thanks a million,really appreciate it!:)

pons

I am here again with yet another constitutional question,I've answered these questions and given my opinion but I'm looking for further opinions just for the betterment of my own opinion and for an insight as I'm really struggling with constitutional law and freaking out because of the exam!
would really appreciate any sort of an insight or information!:)

In 2013, wild mushrooms become the latest gastronomic craze in Ireland. Thousands of enthusiasts begin to pick species noted for their culinary and medicinal attributes. Parallel to this, there is considerable casual trading of wild mushrooms at farmers’ markets; the rarer and more prized species begin to attract considerable prices. However, rarer species of mushroom are threatened with being picked to extinction. Furthermore, some traders have accidentally sold poisonous varieties, leading to a number of tragic accidents amongst mushroom gourmets.
Therefore, it is thought desirable that both the picking and trading of wild mushrooms should be regulated by law. The Oireachtas passes the Mushrooms Act 2013. The Act sets up two mechanisms for regulating the sale and trade of wild mushrooms. First, s. 4 (1) lists a number of “prohibited species”, which are endangered, and it makes it an offence to pick, sell, purchase or possess these. Species X, Y and Z are prohibited under the Act. These include both poisonous and endangered species. However, s. 4 (2) provides that the Minister for Agriculture, may, by statutory instrument, “vary in any way the register of prohibited species.” Second, the Act creates a Mushrooms Board, which is an advisory body, but also includes a statutory tribunal which is responsible for the licensing of wild mushroom traders. The Board may award trading licenses where it is persuaded of the knowledge, experience and qualifications of applicants, and it is made a criminal offence to sell wild mushrooms without a trading license. Additionally, under s. 5, the Board may institute disciplinary proceedings against licensed traders who are alleged to have breached the provisions of the Mushrooms Act or the regulations made by the Minister for Agriculture pursuant to the Act. It has the power both to fine traders, but also to suspend and remove trading licenses entirely. Provision is made for appeal to the High Court. The Act provides that “only 15 licenses may be granted within each of the geographical regions set out in this Act”, but also provides that “the Board may make regulations varying the number of licenses awarded in each region.”

Following new scientific data on wild mushrooms, the Minister prohibits a further mildly poisonous variety, species M, pursuant to the powers granted to her under s. 4 (2) of the Act. Following pressure from constituents, she also removes Species X from the register of prohibited species in accordance with the same provision.

Mr Portobello is prosecuted for the picking and possession of Species M. He contests the validity of the regulation through which Species M was added to the register of prohibited species.

Ms Buttoncap, a conservationist, claims that the power vested in the Minister under s. 4 (2), pursuant to which he de-listed Species X by regulation, is unconstitutional.

Ms Girolle’s application for a trading license is not heard because the Board has, by regulation, reduced the number of licenses that may be awarded in the North Wicklow region to 12, pursuant to the powers granted to it under the Act.
Mr Porcini, who regards the gathering and sale of mushrooms as his vocation, is struck off the register of licensed traders by the Mushrooms Board following a disciplinary hearing, as he allegedly traded in prohibited species. He claims that the powers conferred on the Board by the Act are unconstitutional.
Consider the merits of each claim with reference to the provisions of the Constitution and any relevant case law.

Soriel

Soz only just noticed this! Hope the exam went well for you and that you're sorted for contract!

pons

lol as much as I was panicking over it it went that well,I think it was the best out of the lot!
no worries,thanks alot for the previous help!:)