'Zalewski' and the Future of Irish public law

Irish judges have tended to 'jealously guard' the judicial power, vested as it is by Article 34.1 of the Constitution in the courts alone. And they have jealously guarded their control over the articulation of public law norms. It is they who get to decide what counts as fair procedure in...

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Bibliographic Details
Published in:Modern law review 2024-03, Vol.87 (2), p.466-483
Main Author: Hickey, Tom
Format: Article
Language:English
Subjects:
Constitutional amendments
Constitutions
Dismissal of
Employees
Industrial relations
Judges & magistrates
Judicial power
Judicial powers
Justice, Administration of
Law
Legal system
Monopolies
Power
Public law
Supreme courts
Workplaces
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Summary:Irish judges have tended to 'jealously guard' the judicial power, vested as it is by Article 34.1 of the Constitution in the courts alone. And they have jealously guarded their control over the articulation of public law norms. It is they who get to decide what counts as fair procedure in this or that non-judicial body - not the non-judicial actors operating at the coalface. But in 'Zalewski v Workplace Relations Commission' a majority of the Supreme Court has signaled a shift away from the rigid judicial 'centralism'that has prevailed for a century in the Irish legal system. The judges have departed from the formulaic approach to assessing what counts as judicial power, preferring instead a purposive approach more in line with comparator countries. They have revived a 'saver' provision of the Constitution (Article 37.1) expressly providing for 'the exercise of limited functions and powers of a judicial nature' by bodies other than courts. And they have indicated that courts and lawyers do not have a monopoly on authority in respect of public law norms. Things remain in flux, however, because there are conflicting messages in the majority judgment in respect of this more 'pluralist' conception of public law.
ISSN:0026-7961
1468-2230
DOI:10.1111/1468-2230.12847