Constitutionality and Locus Standi - Lecture Notes

Overview: Core idea

Central principle: separation of powers allows challenges to state conduct in court by those adversely affected by the act/omission.
If a court finds part of an act unconstitutional, that part is declared null and void.
There are multiple pathways to declare legislation unconstitutional (procedural routes, standing rules, and exceptions).

Article 34 deals with which courts can hear constitutional questions.
Article 34.3.2 (2°): Save as otherwise provided by this Article, the jurisdiction of the High Court extends to the question of the validity of any law having regard to the provisions of the Constitution.
No such question shall be raised in any Court other than the High Court, the Court of Appeal, or the Supreme Court (unless Article 34 provides otherwise).
Practical implication: High Court is the primary or exclusive forum for constitutional questions; other courts are constrained from addressing constitutionality unless explicitly allowed.

Legislation passed after 1937 carries a presumption of constitutionality.
Article 15.4 requires that the Oireachtas must not pass laws contrary to the Constitution.
Burden of proof rests on the claimant to show unconstitutionality.
The presumption is especially strict in cases involving tax and social welfare legislation.

M v An Bord Uchtála (1975): High Court held that the Adoption Act 1952, which prevented couples of different religions from adopting, was unconstitutional as it violated freedom of religion.
The presumption applies to bills referred to the Supreme Court under Article 26.
The presumption does not apply to pre-1937 Acts.
Pre-1937 legislation carried over into the new state under Article 50, provided the law was not inconsistent with the Constitution.

Locus standi = a person’s legal standing or right to bring a legal action.
To challenge legislation or state conduct, a litigant must show:
- they are directly and personally affected or will be affected, and
- their rights are directly infringed or threatened.
Cahill v Sutton (1980): Plaintiff argued that the Statute of Limitations 1957 unconstitutionally infringed the right of access to court.
The Supreme Court held that although she was aware of the Statute of Limitations, she had no locus standi to argue this, and she could not argue breach of rights of a third party.

Plaintiff argued that a ban on homosexual activity infringed the right to marital privacy.
Supreme Court held the plaintiff was not married and could not make that argument.
Plaintiff also argued that the ban breached his personal rights as a gay man.
The Court held that he did have locus standi in this respect, despite never being prosecuted or threatened with prosecution.
Principle: a plaintiff need not wait for injury before suing; standing can arise from personal rights or interests, even without a concrete prosecution threat.

Plaintiff: a citizen and taxpayer challenging how the Minister for Finance issued promissory notes to Irish banks during the financial crisis.
High Court: Hall had no locus standi because he had not suffered a distinct or unique loss.
Other potential plaintiffs (e.g., members of the Dáil) existed but were not brought; principle: locus standi requires a direct and personal stake, though broader or transcendent needs may override strict rules in some contexts.

Article 40.4.2 (habeas corpus): any person may complain about unlawful detention of another person.
Irish Human Rights and Equality Commission (IHREC) may take action, including a constitutional challenge, over human rights violations of any person or persons.
If a disputed measure potentially affects the public at large rather than a specific group, the court may allow litigation even if the plaintiff cannot distinguish themselves as a rights holder.
TD v Minister for Education (2001): strict locus standi rules may yield to overriding necessity that acts should not go unchallenged simply because it is difficult or impossible for individuals/groups to show rights affected.

Bona fide interest group: a group may argue they have genuine concern in upholding the Constitution.
Society for Protection of the Unborn Child v Coogan (1989): Supreme Court allowed a pro-life group to argue on behalf of the unborn.
Irish Penal Reform Trust v Governor of Mountjoy Prison (2005): plaintiffs allowed to argue on behalf of prisoners.

Actio popularis allows a case where rights and interests of the public as a whole are affected, though no single person is more affected than others.
Crotty v An Taoiseach (1987): Supreme Court allowed a citizen to argue that the Single European Act undermined sovereignty on foreign policy (though Crotty had no unique injury).
McKenna v An Taoiseach (No. 2) (1995): plaintiff allowed to challenge state funding of a Yes vote in the second referendum on divorce.

Links to separation of powers: access to constitutional review acts as a check on state action by those affected.
Balancing individual rights with the public interest and with the need to avoid overly broad standing rules that would hinder challenge to unconstitutional acts.
Practical implications for litigants: identify direct impact, chain of causation, and potential broader public-interest grounds to pursue a challenge.
Ethical/philosophical dimension: who bears the cost of challenging government action, and how public accountability is maintained when individuals cannot demonstrate direct injury.

Locus standi: legal standing to sue; personal and direct interest required for constitutional challenges.
Presumption of constitutionality: post-1937 legislation is presumed constitutional until proven otherwise; burden on claimant.
Pre-1937 acts: not covered by presumption; may be carried over only if compatible with the Constitution (Art 50).
Art 34: exclusive jurisdiction of High Court on constitutional questions, with limited access via other courts per Article.
Exceptions to standing: habeas corpus, IHREC, public-interest litigation, bona fide groups, actio popularis.

M v An Bord Uchtála (1975): Adoption Act 1952 unconstitutional for religious equality reasons; illustrates presumption and limits of pre-1937 contexts.
Cahill v Sutton (1980): rights of access to court; lack of locus standi due to no direct personal injury.
Norris v AG (1984): personal rights of an unmarried plaintiff can establish standing in privacy-right context.
Hall v Minister for Finance (2013): strict standing rules apply; direct loss required though broader interests might be argued in exceptional cases.
Society for Protection of the Unborn Child v Coogan (1989): pro-life group allowed to argue on behalf of the unborn (bona fide interest group).
Irish Penal Reform Trust v Governor of Mountjoy Prison (2005): prisoners’ rights allowed to be represented by plaintiffs (bona fide interest group).
Crotty v An Taoiseach (1987): actio popularis used to challenge foreign policy sovereignty concerns.
McKenna v An Taoiseach (No. 2) (1995): public funding of a Yes vote in a referendum challenged under public-interest grounds.