How laws are made

The Oireachtas is the only institution in Ireland with power to make laws. The Oireachtas consists of the President, and the two Houses of the Oireachtas: Dáil Eireann and Seanad Eireann.

The start of the law making process is with a Bill. A Bill, is a proposal for legislation which may be commenced in either the Dáil or the Seanad but it must be passed by both Houses to become law. There are a number of stages before the Bill becomes law as follows:

• Before it is introduced to the Dáil, the contents of the Bill are approved by the Government    The Bill is put before the Dáil for a general debate on the principles of the Bill and suggestions for amendments and additions to the Bill
• The Bill is sent to government committees to be examined and more amendments may be made to the Bill
• The Bill is debated in the Dáil and the members of the Dáil vote on whether to pass the Bill
• The Bill is then sent to the Seanad for debate and committee examination again. The Seanad has 90 days (or any longer period agreed by both Houses) to consider to pass the Bill without any amendment or reject the Bill completely or return the Bill to the Dáil with amendments
• If the Seanad rejects the Bill or returns it to the Dáil with amendments that the Dáil does not accept, the Bill will lapse after 180 days. The Dáil may, within those 180 days, pass a resolution declaring that the Bill is deemed to have been passed by both Houses. This means that the Seanad can only delay the introduction of legislation but cannot prevent it
• The President must then sign the Bill in to law. The President may request that the Supreme Court examine the bill if there is a question concerning the constitutionality of pending legislation (a procedure called an Article 26 reference). If the Supreme Court holds that a bill referred by the President is constitutional, that bill may not be challenged again at any time. The President will then refer the Bill back to the government

For further details and access to the text of Irish laws click  here , which is The Government website that contains text of Irish laws or here, which is the Government website that contains information about the Irish government

Sources of Law

Apart from the legislators there are a number of other important sources of law:

1. The Constitution

The Constitution is an important document as it sets out the rules and principles as to how the Irish state should be run. The Constitution also describes the fundamental rights that every Irish citizen is entitled to often referred to as Article 40 rights.

No law can be enacted by the Irish legislator that conflicts with the Irish Constitution. It is a living document which is constantly developing over time as it is regularly being interpreted by the courts on the basis of cases before it and has been amended many times by referendum where the electorate are asked to vote on changes to it.

The Constitution recognises certain fundamental personal rights such as:

• The right to equality before the law such as the right to a fair hearing,
• The right to life
• Freedom of travel
• The right to a trial by jury
• Personal Liberty
• Freedom of expression
• Freedom of Assembly
• The rights of the family
• Religious Liberty
• The right to bodily integrity and health
• Property rights
• The right to earn a livelihood
• Inviolability of dwellings
• The right to fair procedures
• The right to privacy

It is important to note that all rights are subject to limits, qualifications and restrictions so none are absolute. For example the right to freedom of speech, assembly, association may be subject to the interests of public order and morality. Such rights are pleaded in cases before the court.

For further information visit the Irish Government website or OASIS which provides information on government and public services in Ireland

2. European Union Law

The Irish Constitution requires that any EU treaty¹ before it is brought in to Irish law must be approved by the people by way of referendum². The reason that a referendum is needed to ratify treaties is because Ireland is bound by EU treaties which rank higher than Irish law.

Apart from treaties there are other sources of EU law such as Regulations and Directives. Regulations apply to everyone and they become part of national law immediately once they are introduced by the EU.

Directives are orders to implement national legislation to comply with an EU demand. The EU brought in the Race Directive which sets out that persons should be discriminated against on grounds of their ethnic identity. The Irish Government brought in the Equality Act in 2004 to bring this Directive in to effect. However, it is advisable always to refer back to the Directive itself.

3. Conventions

Conventions are documents agreed at EU or international level and are the source of many human rights. For example the United Nations Convention on the Rights of the Child contains many rights for children. These Conventions are not legally binding even if the Irish government has signed up to them.

The European Convention on Human Rights was signed by Ireland in 1949 and it was not until over 50 years later that the European Convention on Human Rights Act was enacted in 2003 to give effect to the Convention. The rights covered by the ECHR are primarily civil and political such as:

• Right to Life
• Freedom from torture
• Right to a Fair trial
• Right to Liberty
• Right to respect for private and family Life
• Freedom of Thought, conscience and religion
• Freedom of expression
• Non-discrimination

Individuals or groups can bring cases to the European Court of Human Rights (Ect.HR) regarding breaches of the Convention provided:

• all national remedies have been exhausted
• it must be brought within 6 months of the date on which the final domestic decision was made.

The Ect.HR is limited in terms of the orders it can make. It cannot strike down a piece of legislation but it can:

• Declare that the violation of the applicant’s ECHR rights has occurred
• Award compensation
• Award costs

For further information visit the European Union website or the European Anti-Poverty Network


Irish Courts System

The Constitution outlines the structure of the court system. The courts hear both civil and criminal cases before it. Civil cases are disputes between private persons such as breach of contract or personal injury actions. These cases are taken by individuals against other individuals or organisations. Criminal cases are taken by the Director of Public Prosecutions on behalf of the state against an individual who has committed an offence such as theft, robbery or assault. The Courts Service is responsible for the administration and management of the courts in Ireland and can be contacted for information regarding the courts.

1. The District Court

The District Court operates locally throughout the country. This court can hear both civil and criminal cases. The District Court has power to award up to €6,348.69 in damages in civil actions. It hears cases regarding family matters and criminal cases such as drunk driving or assault. One judge sits in the court and deals with the cases before him/her.

2. Small Claims

The Small Claims Procedure allows a person to deal with claims in civil cases (cases between private individuals or between individuals and organizations) where there are small claims without involving a solicitor. The procedure can be used when a person is a consumer having bought the goods or service for private use from someone selling them in the course of their business.

The District Court Clerk, called the Small Claims Registrar will process the claim. S/he will try to reach a settlement if this is not possible it will be brought before the District Court. To bring a claim contact you local District Court Office where the Small Claims Registrar will provide you with a form which can also be downloaded from the Courts Service Website. The cost of taking such a claim is €9.


3. The Circuit Court

This court operates on a regional basis. It can hear both criminal and civil cases and can award up to €38,092 in damages in civil cases. In criminal cases the judge sits with a jury. This court can also hear appeals from the District Court.


4. The High Court

The High Court is situated in Dublin and can hear all criminal cases and civil cases, but will not hear civil claims seeking less than €38,000 in damages. The High Court may hear appeals from the lower Circuit and District Courts on points of law. The High Court has authority to determine the constitutionality of a law, although such questions may then be appealed to the Supreme Court. There is no limit on the amount of damages that the High Court can award.

5. The Special Criminal Court

This Court deals with criminal charges relating to terrorist organizations and organized drug activities. It consists of three judges sitting without a jury.


6. The Court of Criminal Appeal

This Court deals with appeals arising from criminal cases from the lower courts.


7. The Supreme Court

The Supreme Court can hear appeals from the High Court as well as from the other, lower courts. A question concerning the constitutionality of pending legislation may be heard by the Supreme Court if the President directly requests such action and the Court grants the request (a procedure called an Article 26 reference. If the Supreme Court holds that a bill referred by the President is constitutional, that bill may not be challenged again at any time.

For further information contact The Court Service Information Office

The Legal Profession

The legal profession is divided into two groups who carry out different functions, these groups are Solicitors and Barristers

Solicitors

A member of the public who has a legal query goes to a solicitor for advice. Solicitors deal with the day to day running of cases, correspondence between the parties, assembling evidence etc. Most

Solicitors work in private practice alone or in firms with several solicitors, but commercial and industrial organisations also employ solicitors, as do the Civil Service and the public sector generally.

Solicitors train in the Law School of the Incorporated Law Society of Ireland, which is also the governing body for the profession and handles complaints about solicitors from members of the public.

If you are not happy with any aspect of the service you are receiving from your solicitor, you should first tell your solicitor about your concerns. If you are unable to resolve your issue with your solicitor and you wish to make a complaint, you should write to the Complaints Section of the Law Society of Ireland. You should outline in reasonable detail the nature and extent of the complaint that you wish to make. You should include copies of any relevant documents such as letters to and from your solicitor.

The Society may investigate complaints against solicitors made by or on behalf of clients alleging:

• Misconduct (defined as the commission of a crime or conduct tending to bring the solicitors’ profession into disrepute)
• Inadequate professional services (must be within the last 5 years)
• Excessive fees (must be within the last 5 years.

For further details contact Law Society of Ireland


Barristers

Often, if a case is legally complex and will involve going to court, the solicitor will decide to get a barrister involved. The barrister will research the legal issues involved and give an opinion on the case based on his/her knowledge of the law and what has happened in similar cases. Many barristers specialise in particular areas of law such as family, criminal or commercial.

It is also usually barristers who speak in higher court. It is possible for solicitors to appear in court themselves but it is still more usual for barristers to appear, particularly in the Circuit, High and Supreme Courts

Barristers are not permitted to deal directly with the public. Where it is necessary for the client to meet the barrister, the solicitor will arrange the meeting and will also be present.

The Bar Council is the governing body for barristers in practice at the Bar. The Bar Council is an independent body which regulates the activities, and represents the interests, of its members. Practicing barristers in Ireland are subject to the Bar Council's strict Code of Conduct. The purpose of the Code of Conduct is to ensure that barristers uphold the highest professional and ethical standards in the conduct of their relations with clients, the court and the public.

If you have concerns about the service you are receiving form a barrister you should first discuss the issue with your solicitor.

Complaints of misconduct from the public, solicitors and other clients are considered by the Barristers' Professional Conduct Tribunal. The Tribunal can impose penalties if it finds that a barrister has been guilty of breaching the Code of Conduct or of breaching proper professional standards.

For more information contact: The Bar Council

Legal Aid System

There are two types of legal aid available these are Civil Legal Aid and Criminal Legal Aid

Civil legal aid

This aid is available for non-criminal cases and has been available since 1979. Legal Aid in non-criminal matters is provided by the Legal Aid Board (LAB). The LAB has centres operating throughout the country. LAB provides legal advice (any oral or written advice given by a solicitor or barrister, including writing letters and negotiations) and legal aid (representation by a solicitor or barrister in court proceedings).

In order to avail of civil legal aid, you must contact one of the Legal Aid Centres. LAB tends to provide civil legal aid and legal advice in the following areas mainly;

• judicial separation
• divorce
• maintenance
• domestic violence
• custody of and access to children
• problems relating to hire-purchase agreements
• landlord and tenant disputes (except where the dispute concerns ownership of land)
• contract disputes

The important thing to remember about civil legal aid is that it is not free legal aid. If you qualify for civil legal aid, you will have to make some contributions to the overall costs of the proceedings.

To qualify for the service your means must be below a certain limit. The means test will be carried out by staff at the Law Centre when you attend to apply for Legal Aid. You must also pay a contribution. The amount depends on your means. The current minimum contribution is €6 for advice and €35 for aid.

Law Centres operate throughout the country a list of the law centres is included in the pack.

Criminal legal aid

Criminal Legal Aid is free and is administered by the courts. Almost all criminal cases commence in the District Court and usually an application will be made at that stage to the District Judge for legal aid.

In Criminal cases the District Judge will grant you free legal aid if:

• your means are not enough to enable you to obtain legal aid from your own resources
• the serious nature of the offence or exceptional circumstances make it essential in the interests of justice that you should have legal aid in the preparation and conduct of your defence and any appeal against conviction.
• In practice, the District Judge will enquire as to the following:
• if you are employed and how much you are earning.
• whether you are single or married
• whether you have any dependants
• if the case is a serious one such as previous convictions for similar offence; if there is a possibility you may face a prison sentence or a substantial fine.

If the District Judge considers that it is appropriate that legal aid is granted, he/she will issue a Legal Aid Certificate. Once a Legal Aid Certificate has been granted a solicitor from a panel of practitioners will be assigned to your case. You may however request a particular solicitor from the panel. If it is a very serious case the certificate will include the services of a barrister(s) as well.


Building up a correspondence file

Correspondence file

It is important to keep records of all correspondence regarding a case. Telephone calls, fax messages, emails, conversation, letters and any other information should be recorded. It is important to develop a practice of writing to the other party regarding matters to do with the case. This will make it easier for a solicitor to advise on the case once it is referred and will provide the vital evidence needed in taking a case to court.

Accessing records

Making a freedom of information request can be an important part of building up a file. Persons are entitled to request information about themselves and/or the reasons for the making a decision regarding their case and/or have inaccurate information about them on file corrected from public bodies such as Health Boards and Local Authorities under the Freedom of Information Act, 1997 (FOI).3

A person can ask for the following records:

• any records relating to you personally, whenever they were created 4
• all other records created after 21 April, 1998

How to make a request for information

There are a number of steps to requesting personal information from public bodies as follows:

• The request should be made by application form or letter in writing to the FOI Unit of the public body. A sample application form for an FOI request is included in this pack.
• The application form/letter should refer to the Freedom of Information Act.
• If information is required in a particular form (e.g. photocopy, computer disk, etc.,) this should be specified in the application.
• Be specific regarding the information that needed and the time period referred to in the request.
• If you are not satisfied with the response of the public body to any aspect of your request for information, (i.e., refusal of information, form of access, charges) or if a reply is not received within 4 weeks of the initial letter, this is deemed a refusal of your request

Right to internal review and appeal:

You can seek to have the decision re-examined by more senior members of staff within the public body. The internal review of an FOI decision must be made within 3 weeks. Applications for review of a decision should be addressed to the FOI Unit of the public body involved.

If you are still unhappy with the decision, you have the right to appeal the decision to the Information Commissioner. The Information Commissioner investigates complaints of non-compliance with Irish FOI legislation and generally promotes a freedom of information culture in the Irish public service.

Charges:

Personal information is free otherwise there is a charge of €15 (reduced fee if you are a medical card holder) for other information. They may charge €20 per hour for a search or for copying of information.

Information for the solicitor:

If a case is being referred to a solicitor the facts surrounding the incident being complained of will be needed in addition to the correspondence file. For example, if it was an incident regarding discrimination the following would be required:

• When it occurred
• Where it occurred
• Who was involved
• What exactly happened
• Did the Gardaí arrive
• Did you report the incident
• If the incident involved an eviction the following information would be needed:
• Name of family members
• Local authority area
• Family circumstances such as education, health issues
• Accommodation history i.e. how long in the area, applied for accommodation, has accommodation been offered within the local authority area, if so what type, what is the first preference i.e. a halting site, house, groups housing scheme
• When was the notice served
• Was alternative accommodation offered

Costs:

As soon as possible after you have given instructions to your solicitor, he/she must advise you in writing of the fees you will be charged for his/her services. If it is not possible to give you a definite sum, he/she must estimate a sum or at the very least describe the basis upon which charges or fees will be calculated.

Usually solicitors will wait until a case is concluded before requiring payment of their fees. However, sometimes fees will be requested in advance, especially in a case where there is a high risk of losing.

Usually if the applicant wins his/her case, most or all of the costs (including legal fees) will be paid for by the other party.

However, if the applicants lose, it is likely he/she will be obliged to pay all the costs and fees of their own legal team and that of the other party.