Compatibility of Legal System in Ireland with EU Law System after Brexit: Constitutional, Statute And Common Law

Law and legal studies project

In this essay I will be discussing the legal system in Ireland and will be including any observations and changes that I think should be made to this system. I will also be discussing how the Irish legal system will remain part of the European Union after Brexit happens.

The legal system in Ireland is an advanced system that involves formal laws. This means the law is independently existing and neutral and is enforced by the courts, police, and the state (notes). The Irish Legal System has three parts to it:

1. Constitutional Law
2. Statute Law
3. Common Law

Constitutional Law - The Irish Constitution (Bunreacht na hEirinn) contains a set of rules genuine exercise and transmission of political power. It defines the main organs of the State, provides for the rights of the Irish people, and sets out the Separation of Powers. It can also be amended if necessary (stephenwalshsolicitors.ie). The Irish Constitution is quite similar to the British Constitution because Ireland`s Constitution was set up when we were still under British rule. The Doctrine of Separation of Powers is made up of three parts:

I. Legislature - This contains the two houses of the Oireachtas, which are the Seanad and the Dáil. These two houses make the law.

II. Executive - This states that the Government of the Republic of Ireland cannot have less than 7 members and no more than 15 members.

III. Judiciary - The judiciary consists of all the court systems in Ireland. This includes the Supreme Court, Court of Appeal, and the High Court. All of these deal with discipline and breaking of the law.

There are two types of law, that is Civil Law and Common Law. The type of law we use in Ireland is common law.

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Statute Law - Most of the statute laws come from the English statute law because Ireland used to be under English reign and thus when Ireland left English reign, it took some of these laws with them. Statute law is an act of legislation that commands something and is a special law or specific law expressed in writing (thefreedictionary.com).

Common Law - Common law is Judge made law. It is based around society and how common people feel the law should be made (thefreedictionary.com). It is an unwritten source of law. This type of law was brought over by the Normans and the King`s Council. It has grown out of the judges in Common law courts and courts of chancery and has evolved from there. The courts of chancery were seen as too narrow and rigid, which led to equity law. Previously Ireland was ruled by Brehon Law and slowly adapted to the way of the English law system after being under British reign for many centuries (https://www.ucc.ie/academic/law/irishlaw/guide/).

Written sources of law include Legislation, which is Acts passed by a law-making body. Delegated/ Subordinate Legislation is not enacted by Oireachtas itself. The Constitution are rules for legitimate exercise and transfer of political power. It defines the principal organs of Government and how they are controlled. The Constitution can also be amended if needed.

Observations and Recommendations: I think that our current legal system in Ireland is good, but we can definitely stand to make some improvements. Currently the Irish Legal System consists of the elements I have discussed above. I think it can be improved in the following ways.

1. Reducing Legal Costs - Observations: Legal expenses in Ireland are far too high in my opinion. In some cases Barristers earn more than the Taoiseach of Ireland and have considerably less overheads. (Solving problems in the legal system | Eolas Magazine). It is the taxpayers of the country who pay for these bizarre salary packages and it is unfair. Recommendation: To combat this, I suggest lowering the pay for barristers and in turn reducing the fees for legal representation.
2. Delays in Court - Observations: Court rooms can often be very over-crowded, and this will sometimes lead to a backlog in cases. Poor management can very often result in a build up of cases in court and people can get overwhelmed and fed up with the ever-dragging waiting time for their case to be heard. Recommendation: I think this can be fixed by sorting out a proper management system to stop overcrowding and delays in cases being heard (Flaws in the law: fixing the legal system (irishtimes.com).
3. Family Court Cases - Observations: Family court in Ireland is not great for many reasons. One of the reasons is that they never get the same judge each time they visit court and judges often have to rehear evidence multiple times. This wastes a lot of time for the families in court. Recommendation: A solution for this would be to keep the same judge for every one case as it would save time and money (irishtimes.com).
4. Criminal Justice system - Observations: The criminal justice system in Ireland has become very unfair sometimes to both offenders and victims. Often victims of crime do not feel like they are truly heard by the Irish criminal Justice System and this can lead to many victims not reporting crimes such as sexual assault or violence. The system can also be unfair to offenders in these instances as they often don’t get the punishment they deserve and therefore cannot show remorse for their actions (rte.ie). Recommendation: I would recommend that the Criminal Justice system be thoroughly examined in Ireland and give both victims and offenders a fighting chance for justice.

History of Ireland in European Union: In 1951, post-World War 2, France, Germany, Belgium, Netherlands, and Luxembourg ratified the Treaty of Paris. This was done to pool resources and ensure efficient distribution. In 1957 these same countries signed the Treaty of Rome to create development, expansion of economic activities and living standards. In 1972, Ireland, UK and Denmark signed the treaty to become members of the European Union. In 1981, Greece became a member of the EU and in 1986 Spain and Portugal became members as well as the Single European Act dismantling internal borders in the single market.

How the Irish legal system will remain part of the European Union in the future: EU law is above Irish national law. This means that Ireland can`t pass national laws that take away from EU laws. It means also that EU law can over-rule Irish law, even if that Irish law was enacted before EU law came into effect (citizensinformation.ie). EU law also has power over its citizens because even if a national law isn’t in place to protect the public, EU law must be must be obeyed. However, this is only the case if the EU law happens to be binding. After Brexit occurs, Ireland will be the only all English-speaking country in the European Union. This will make Ireland the perfect legal base for trade and communications with the USA. (Ireland as a legal base post Brexit | News & Views | Irish Echo) Conflict often arises when EU law clashes with Irish law because EU law is seen as superior and sometimes this does not reflect Ireland`s true beliefs as a country. This is really the only instance of conflict over EU laws and rules. EU membership has helped to bring peace to Northern Ireland in the troubled times so it is seen as a risk that this peace may be broken if Brexit is left with a no deal. This is something that the EU, the British and Irish governments must all agree on in order to keep peace between the North and South. Many grants and subsidies come from being a member of the EU for example, the Young Farmers Payment. These grants will continue to be provided by the European Union until such a time that Ireland decides to exit the EU (europa.eu).

In conclusion, it is my belief that Ireland and it`s legal system will be quite comfortable in the European Union in the future regardless of Brexit. Many of the laws and legislation in the EU are quite similar to those in the Irish legal system. Very little conflict arises between the two because EU law is a step above the national law in Ireland. The legal system differs in other countries that are part of the European Union and we are lucky as a country that our ethics are mostly the same as that of the EU. I imagine in places such as France that has a civil law legal system, it would be more difficult to get along with EU regulations (employmentrightsireland.com). This would be because it would mean that France may have to change some of its laws to be part of the European Union. This is a major inconvenience for them.

Referencing:

1. EU law, citizensinformation.ie
2. Flaws in the law: fixing the legal system, irishtimes.com
3. https://employmentrightsireland.com/irish-and-uk-employment-law-what-are-the-main-differences/#:~:text=The%20Irish%20legal%20system%2
4. https://www.ucc.ie/academic/law/irishlaw/guide/
5. Ireland as a legal base post Brexit | News & Views | Irish Echo
6. Solving problems in the legal system | Eolas Magazine
7. Statute law legal definition of statute law, thefreedictionary.com
8. Statute law legal definition of statute law, thefreedictionary.com
9. https://stephenwalshsolicitors.ie/2017/11/17/irish-legal-system-explained/https://stephenwalshsolicitors.ie/2017/11/17/irish-legal-system-explained/
10. Ireland in the EU | Ireland, europa.eu
11. How to create a better Irish criminal justice system, rte.ie