Can you challenge a law that is unfair?

seamus

OK, hypothetical here.

Imagine that the government tomorrow enacted a law whereby all vehicles capable of travelling in excess of 150km/h must comply with the following rules:

1. They must be mechanically restricted to a maximum of 120km/h
2. The driver must hold a full licence and be over 25
3. The vehicle must be specially registered

This is done on the grounds that these vehicles pose a greater threat to the public than other vehicles. If you are found guilty of non-compliance, the vehicle is seized and may be destroyed.

Now, imagine that I (or whoever) could provide evidence which showed that these vehicles were no more likely to be involved in any accident than any other vehicle, regardless of who was driving and that the above legislation provided no benefit to public safety.

Is there any legal mechanism by which this law could be challenged or "annulled"?

Tom Young

Course there is.

seamus

Care to elaborate?

Would you bring a specific case to the high court (or wherever), setting out your grounds, or would you have to wait until someone was charged with an offence under the legislation, present your defence and have the judge declare the law unfair?

Tom Young

That is generally how most of those cases/matters arise alright, under the banner of Judicial Review or administrative/public law.

Where a law is patently [unfair] EDIT: potentially unconstitutional/against EU law, an action could be brought in a number of ways JR or appeal being the main ones.

The other method would be by full plenary proceedings.

The issue though in both contexts is whether or not the legislation is defective and with the party seeking a review has locus standi or standing to bring the action. In general terms there is a presumption that legislation is constitutional.

Manach

Would there be a European dimension here, in that if that hypothetical law infringed on EU trade restriction agreements the ECJ becomes involved?

Tom Young

It depends on the law and EU Treaty concerned. Generally though EU law is directly effective and supreme. Criminal matters differ of course under Constitutional Article 29.4.10.

dermot_sheehan

Might I add unfairness alone is not enough to challenge a law.

If its an act of the oireachtas. You must show it infringes the Constitution or one of the treaties establkishing the european union, or a directive or regulation under such a treaty.

You can get a declaration from the high court its unenforceable.

If its a ministerial regulation the scope for challenge is wider

Tom Young

Tom Young wrote: »

Where a law is patently unfair, an action could be brought in a number of ways JR being the main one.

Judicial review is a mechanism to challenge decision making bodies and any body which operates a quasi-judicial function. The judiciary have no authority whatsoever to judicially review the internal decision making powers of the Oireachtas so long as they do not infringe upon the judicial power or pass a law which is unconstitutional.

The courts can NEVER review a law because it is "unfair". It can only do so where there is a question as to its constitutionality.

In answer to the hypothetical, this situation actually exists under another guise. People are allowed to buy, sell and use cigarettes and alcohol, but not other drugs such as marijuana. There are innumerable studies which show that alcohol and particularly cigarettes are far more dangerous and pose a far greater public health risk than marijuana but there is no question whatsoever of challenging the Misuse of Drugs Act 1977 and the schedules which list the controlled substances in other acts as being unfair.


One more thing (Columbo style) every car in Ireland is limited to 120 kph on motorways, they are called speed limits and violation of them is a crime. Using mechanical means to achieve the same end certainly would not be unconstitutional, nor would restricting ownership of high performance cars to persons over 25 as, ostensibly, insurance companies do a fine job of this through their premiums.

Tom Young

Deleted User wrote: »

Judicial review is a mechanism to challenge decision making bodies and any body which operates a quasi-judicial function. The judiciary have no authority whatsoever to judicially review the internal decision making powers of the Oireachtas so long as they do not infringe upon the judicial power or pass a law which is unconstitutional.

The courts can NEVER review a law because it is "unfair". It can only do so where there is a question as to its constitutionality.

In answer to the hypothetical, this situation actually exists under another guise. People are allowed to buy, sell and use cigarettes and alcohol, but not other drugs such as marijuana. There are innumerable studies which show that alcohol and particularly cigarettes are far more dangerous and pose a far greater public health risk than marijuana but there is no question whatsoever of challenging the Misuse of Drugs Act 1977 and the schedules which list the controlled substances in other acts as being unfair.


One more thing (Columbo style) every car in Ireland is limited to 120 kph on motorways, they are called speed limits and violation of them is a crime. Using mechanical means to achieve the same end certainly would not be unconstitutional, nor would restricting ownership of high performance cars to persons over 25 as, ostensibly, insurance companies do a fine job of this through their premiums.

Yes, this is indeed the correct answer. In my haste to reply, I ignored the fact that technically it must be a constitutional challenge and JR applies as mentioned above by Kayroo. I would also point out that there is a raft of case law in the area of challenges which failed on the basis of leave to JR which should never have been brought in that fashion.

Humble pie for lunch

dermot_sheehan

Just to further add although a declaration that a piece of legislation is incompatible with the constitution is one of the reliefs that can be granted in judicial review proceedings, the normal way to have a piece of legislation struck down is to issue plenary proceedings against the state seeking a declaration that an act or a section of it is unconstitutional.