Although the bitterness of recent political history might suggest otherwise, there have always been strong ties bonding the islands of Britain and Ireland. There are long standing social, familial and cultural links. Trade and business between the two islands is significant; the United KingdomFootnote 1 is Irelands biggest export market and Ireland is the UK's fifth biggest marketFootnote 2. In other areas, there are initiatives and plans to increase co-operation; the energy supply sector, joint trade missions, communications and tourism being examples of areas in which there is noticeable interaction.
This strong interdependency is emphasised by a shared and sometimes brutal history. The modern political history of the United Kingdom and Ireland – starting with the Act of Union 1800 – has resulted in a significant similarity in legal systems and laws. The parliament of the United Kingdom of Great Britain and Ireland passed a wide range of measures, which generally and specifically affected Ireland. Public health, education, land reform and criminal law were among the areas affected and a substantial amount of the legislation continues in effect today.
The similarity has been further added to by the harmonising elements of European law. Ireland and the United Kingdom are the only two English speaking common law members of the European Union.
With the similarities come also notable differences. The purpose of this article is to identify the key elements and issues within the Irish legal system which are relevant to any comparative research with the laws and systems of the United Kingdom. From time to time, legal research within the United Kingdom may require an informed examination of equivalent Irish measures. This may be for comparative purposes or for precedent or for informing UK business investment and business in IrelandFootnote 3.
Four Courts, Dublin. The main courts system comprises 4 main tier.
THE IRISH POLITICAL SYSTEM
The revolutionaries who founded the Irish Free State following the Anglo Irish Treaty of 1921 had a pragmatic streak. While asserting nationhood and independence, they largely preserved the political, judicial and administrative structures that existed prior to independenceFootnote 4. Thus, Ireland is a common law jurisdiction with a bi-cameral legislature based to some extent on the old Westminster model.
THE CONSTITUTION
One of the most significant differences between the two legal systems is the existence of a written Irish Constitution. Since the founding of the Irish Free State in 1921Footnote 5, Ireland has had a written constitution – the current Constitution being adopted by referendum in 1937Footnote 6. With many amendments since then, it is the primary domestic legislative Act, defining the functions and duties of the State and its agencies, providing for separation of powers and setting out fundamental rights for Irish citizens. All other domestic law is subservient and constitutional challenges are a regular issue before the Irish courts. While the Constitution sets out specific rights for citizens, there has also been an identification and expansion of further additional un-enumerated rights through decisions of the High Court and the Supreme CourtFootnote 7. In the modern era, the supremacy of the constitution has been reduced by the requirements imposed on Ireland through membership of the (now) European Union.
In the interpretation of Irish domestic law or in seeking judicial remedies, Irish lawyers will consider any constitutional implications or arguments that might be raised. This contextualisation of the constitutional dimension has also fed into a notable and developed body of Irish administrative lawFootnote 8.
NAMES AND LANGUAGE
The constitutional name of the jurisdiction is Ireland although there can still be confusion in references and citationsFootnote 9. This is not helped by the Republic of Ireland Act 1948 which introduced a ‘description’ of Republic of Ireland. However, international recognition and treaty participation is afforded to Ireland and a number of testy judicial decisions have also underscored the need to use the correct citation.
Under the constitution, Irish is the first official language while English is recognised as the second official language. In reality, while the Irish language has a significant cultural status, English is the daily language of business, commerce and the law. There are additional legal requirements as to official use and recognition of the Irish languageFootnote 10 and citizens are of course entitled to use Irish in dealing with government, official agencies and the courts. Most official texts including Acts of the Oireachtas are produced bi-lingually. Many state bodies are known by their Irish names.
Government Buildings, Dublin. Ireland is a common law jurisdiction with a bi-cameral legislature based to some extent on the old Westminster model.
THE JUDICIAL SYSTEM
The main courts system comprises 4 main tiers:
• The Supreme Court which is the court of final appeal, guardian of the constitution and a court of unlimited jurisdiction. The Supreme Court will soon be augmented and assisted by a Court of Appeal due to be established in late 2014.
• The High Court has original unlimited jurisdiction in civil matters. The High Court sits in Dublin but also on occasional circuit outside the capital. In civil matters, the High Court sits without a jury except for a number of specified actions including defamation. In criminal matters, it sits as the Central Criminal Court. The High Court also operates a Commercial List (usually referred to as the Commercial Court) which hears high value commercial cases subject to a strict case management protocol.
• The Circuit Court. As its name suggests, the Circuit Court sits in a number of designated areas around the country. These circuits were usually based on county boundaries. The Circuit Court has limited jurisdictionFootnote 11 in criminal and civil matters and can hear specified matters on appeal from the District Court.
• The District Court generally deals with lesser offences and has a limited monetary jurisdiction in civil matters. It is based in specific geographical locations. While the District Court usually deals with summary or non minor offences it can also deal with indictable offences in certain circumstances.
Constitutionally, all members of the judiciary are independent. Administrative, logistical and secretariat support is provided within the court system by the Courts Service. The management of court work is supervised in the Superior Courts and the Circuit Court by Registrars and in the District Court by District Court Clerks.
From a legal research perspective, it is the Courts Service which maintains the primary database of judgments from the Superior Courts (Supreme Court, Court of Criminal Appeal and High Court). The website also provides access to the rules of court for all of the court jurisdictions.Footnote 12
Although not part of the judicial system, there are a number of important related bodies involved in quasi-judicial decision making. These include the Personal Injuries Assessment Board (PIAB)Footnote 13, an official body established to assess claims for compensation for anyone who has been in an accident and suffered an injury. PIAB has produced a useful quantum database in respect of personal injury assessments. The Insolvency Service of Ireland (ISI)Footnote 14 is a statutory body which deals with personal insolvency arrangements outside of the bankruptcy regime.
House of the Oireachtas, Dublin. The makeup of legislation and the procedures for making it are quite similar to the Westminster model and will be familiar to those who deal with UK legislation. Primary legislation is enacted through the House of the Oireachtas (Parliament).
The Irish legal system also provides for the use of different types of tribunal - expert tribunals which have quasi-judicial powers and tribunals of enquiry which are tasked to establish facts. A number of high profile tribunals of enquiry have sat in recent years to investigate various aspects of Irish life and businessFootnote 15.
Where to Find Irish Court Decisions and Judgments Online
The Courts Service websiteFootnote 16 is the primary source of recent judgments for the Superior Courts (Supreme Court, Court of Criminal Appeal and High Court). It contains written judgments made available by the Supreme Court from the year 2001, the Court of Criminal Appeal from the year 2004 and the High Court from the year 2004.
BAILIIFootnote 17 also provides access to recent judgments for the Superior Courts and also includes decisions dating from before the Courts Service database. It holds decisions from 1997/1998 to date. The database also includes a number of landmark decisions from earlier years.
Citation of Unreported Cases:
Older unreported cases are correctly cited by party names followed by details of the court and the date:
Turner v Pilotage Committee of Dublin, Pilotage Authority, (High Court, Barron J, 14 June 1998).
Irish case citations are adapting to a neutral citation model. For example, note the neutral citation for the following Supreme Court case.
Crofter Properties Limited v Genport Limited [2005] IESC 20.
KEY PLAYERS IN THE LEGAL SYSTEM
The Attorney GeneralFootnote 18 is a constitutional officer who sits in cabinet to offer primary legal advice to the Government. The Attorney General advises on the making of legislation and herFootnote 19 office is heavily involved in drafting Bills of the Oireachtas. The Office of the Attorney General maintains the Irish Statute Book online. The Attorney also represents the State in legal proceedings.
The Chief State SolicitorFootnote 20 is a constituent part of the Attorney General's Office. The Chief State Solicitor provides litigation and other legal transaction services to the Attorney General and to government departments and some agencies.
The Director of Public ProsecutionsFootnote 21 is an independent statutory office which enforces the criminal law in the courts. The Director also directs and supervises public prosecutions on indictment and gives general direction and advice to the Garda Síochána (national police force) in relation to summary cases and specific direction in such cases where requested.
The Law Reform CommissionFootnote 22 is a significant player in the development of modern Irish law. The Commission is an independent body tasked to keep the law under review and to conduct research with a view to the reform of the law. Many of the Commission's proposals have resulted in significant reforms of Irish law in recent decades. Its consultation papers provide a rich source of information on current Irish law.
Where to Find Irish Legislation Online
The Irish Statute BookFootnote 28 has electronic texts of all Acts of the Oireachtas from 1922 to date as well as a selection of pre 1922 statutes which are still in effect in the jurisdiction. It hosts pdf format texts of Acts from 1996 onwards. The Irish Statute Book also provides access to the Legislation DirectoryFootnote 29 which allows users to check whether a particular provision has been amended or otherwise affected since its enactment.
The Irish Statute Book also hosts electronic texts of Statutory Instruments from 1922 onwards with Instruments from early 2007 onwards also available in pdf format. Listing is by year and number. For Statutory Instruments, the Legislation Directory provides a limited capability for users to check whether a particular Instrument has been amended or otherwise affected since its making.
The Houses of the OireachtasFootnote 30 website provides access to pdf texts of Acts from 1997 onwards. It also gives access to the parliamentary record of draft legislation or Bills from 1997 including initial and amended drafts and text of relevant parliamentary speeches and debates.
BAILIIFootnote 31 replicates the electronic texts of Acts of the Oireachtas and Statutory Instruments (by year and by title) from 1922 onwards.
International Treaties to which Ireland is a Party
For information on international treaties to which Ireland is a party, the Department of Foreign Affairs and Trade maintains a databaseFootnote 32 giving details of all general treaties and including the text of all treaties published in the Irish Treaty Series since 1998. For double tax treaties, the Revenue Commissioners maintain a databaseFootnote 33 of all current treaties with access to the domestic implementing provisions.
The divided structure for lawyers in Ireland is similar to that in England and WalesFootnote 23. Solicitors form one division of the legal profession; the other being the profession of barrister. Solicitors are currently regulated by the Law Society of IrelandFootnote 24 and barristers are regulated by the Bar Council of Ireland.Footnote 25 This regulatory structure will change substantially with the expected establishment of the Legal Services Regulatory AuthorityFootnote 26. Both the Law Society and the Bar Council provide extensive library and research resources for their respective members.
THE LEGISLATIVE SYSTEM
The makeup of legislation and the procedures for making it are quite similar to the Westminster model and will be familiar to those who deal with UK legislation. Primary legislation is enacted through the House of the Oireachtas (Parliament)Footnote 27 in the form of Acts of the Oireachtas. Draft legislation in the form of Bills goes through a five stage process in each House – the Dail (House of Representatives identified as the lower House) and the Seanad (Senate or Upper House). Under the Constitution, certain types of Bill (for example a Bill to amend the Constitution) must be initiated in the Dail.
General Post Office, Dublin. The revolutionaries who founded the Irish Free State following the Anglo Irish Treaty of 1921 had a pragmatic streak. While asserting nationhood and independence, they largely preserved the political, judicial and administrative structures that existed prior to independence.
Usually between 40 and 50 Public Acts of the Oireachtas are enacted each year. When a Bill has passed all stages in the Oireachtas and completed its parliamentary process, it is forwarded to the President for signature. Certain constitutional arrangements attend the signing by the President and he has a right to consult and refer any Bill to the Supreme Court to adjudge its constitutionality before signing it into law.
Subordinate or secondary legislation in the form of Statutory Instruments is made by Ministers of government or authorised agencies under the authority of a parent statute. Again, the makeup and procedures will be broadly familiar to those who deal with UK law. Usually between 500 and 700 statutory instruments are made each year. The volume of these instruments coupled with a lack of centrality and consolidation can make them difficult to track or identify as to their currency or applicability.
The statutory instrument system has been heavily used to transpose European Directives into Irish law. These transposing instruments are made under the authority of European Communities Acts 1972 to 2012 which allows them to amend or repeal primary legislation (ie Acts of Parliament) to achieve transposition of the relevant European measure. Not surprisingly, this procedure has been the subject of discussion and debate as well as judicial challenge.Footnote 34
KEY ADMINISTRATIVE REGULATORS AND ENFORCERS
In addition to fulfilling a domestic central bank function, the Central Bank of IrelandFootnote 35 is the regulator for a wide range of financial services providers including banks and credit institutions; insurance undertakings; investment firms and bureaux de change. The Bank has extensive regulatory and supervisory powers and produces a wide range of regulatory and guidance material for financial service providers.
Under new legislation, the Competition and Consumer Protection Commission will be established in late 2014. The new Commission will deal with certain consumer protection issues as well as the work of the current Competition AuthorityFootnote 36 in enforcing Irish and European competition law (anti-competitive practices, price-fixing, anti-competitive business mergers, operation of cartels etc.).
The Office of the Director of Corporate EnforcementFootnote 37 is a statutory body established in 2001 to enforce the provisions of the Companies Acts and to improve compliance with company law requirements.
The Commission for Energy RegulationFootnote 38 was established in 1999 and regulates activity across the energy sectors including electricity, gas, water and wastewater. The Commission for Communications Regulation (Comreg)Footnote 39 is the independent regulator for regulation of the electronic communications sector (telecommunications, radio communications and broadcasting transmission) and the postal sector.
THE IMPACT OF FREEDOM OF INFORMATION
The Freedom of Information Act 1997 has had a significant impact on the availability of official information to the public and for use in legal and other research. In broad terms, the legislation provides for access to records held by government departments and other designated bodies. The Act has greatly enhanced access to official information and has to some extent removed much of the official secrecy of the pastFootnote 40. It has informed a more open approach to use of official information in terms of consultation, reference and further use. In addition, bodies designated under the Act are required to produce manuals on the manner in which they carry out their functions providing a useful source of informed commentary and guidance on the application of law and regulation in the public sector.
SOME STARTING POINTS FOR IRISH LEGAL INFORMATION
The longstanding web resource Irishlaw.orgFootnote 41 continues to provide an excellent central and comprehensive directory for Irish legal resources and also includes research guides dealing with the specifics of the Irish legal system.
Citizensinformation.ieFootnote 42 is a government sponsored website which collates material from official sources to provide easily understood information on public services and entitlements. It provides a very useful and easy way to obtain basic information on all aspects of Irish public services usually with links to the supporting primary sources.
MerrionStreet.ieFootnote 43 is the Irish Government News Service providing useful news and current awareness by bringing together in one place, all important press releases and other official announcements. The intention is to provide official information in ‘the language of a news bulletin’. The site interacts with all of the main social media services and includes links to all government RSS feeds.
Iris OifigiuilFootnote 44 published bi-weekly is the official state gazette (broadly similar to the UK's Gazette) and provides a source for publication of official and statutory notices as well as promulgation of statutes and statutory instruments.
SOME STARTING POINTS FOR IRISH BUSINESS INFORMATION
All of the daily broadsheet newspapers – The Irish Independent, The Examiner and The Irish Times provide good business coverage. The Irish TimesFootnote 45 has the best archival database with limited free access. The Sunday Business Post provides excellent coverage of business news on a weekly basis and also provides free- to-access daily news through The Daily Business Post.Footnote 46
COMMERCIAL PROVIDERS ONLINE
This article is concerned with free to use resources for occasional research. It is also worth identifying the key players in the provision of commercial databases on a subscription basis:
Murdochs Irish Legal CompanionFootnote 47 provides a mini encyclopaedia of Irish law including cross reference of related terms and links to relevant legislation, reports and case law;
Better RegulationFootnote 48 provides consolidated texts of legislation with related materials and a current awareness service in certain key areas – tax, company law, financial services and pensions law;
Lexis LibraryFootnote 49 includes The Irish Reports and a range of recent and older unreported Irish case law;
Westlaw IEFootnote 50 provides access to a selection of annotated legislationFootnote 51; selected consolidated texts of legislation; case law including The Irish Law Reports Monthly (ILRM) and full or abstracted texts of selected Irish legal periodicals;
JustisFootnote 52 includes access to selected legislation, case law from 1997 and Employment Appeal Tribunal decisions from 1998 onwards;
BloomsburyFootnote 53 provides two significant commentary services – on Irish property law and on Irish company law.
