The Constitution Outside the Courts - The Case for Parliamentary Involvement in Constitutional Review
61 Irish Jurist (2019) 36-64.
33 Pages Posted: 12 Jan 2019 Last revised: 29 Apr 2019
Date Written: December 26, 2018
The judiciary is not the only institution capable of assessing the compatibility of legislation with constitutional or statutory-rights based commitments. In many legal systems, this process can also encompass the political branches playing an important role through engaging in pre-enactment review. This involves the political branches of government - the executive and parliament-assessing the compliance of proposed bills with constitutional or statutory commitments. Accounts in public law scholarship argue that pre-enactment review by both political branches promotes several valuable normative benefits, including enhancing government accountability by subjecting their decisions to constitutional or rights-based scrutiny internally through executive assessment, and then externally through parliamentary and public scrutiny. This in turn is said to encourage the political branches to be more rights-conscious in their approach to the law-making process and the public to be more aware of rights issues. Similarly, proponents of political branch review argue that it represents a better means to cohere democratic self-governance with constitutional or rights commitments than relying on judicial review alone, avoiding pitfalls associated with legalistic judicial reasoning. In Ireland, however, the constitutional review process is largely dominated by the executive and judiciary and largely disempowers parliament from any meaningful say over questions concerning constitutional commitments. Although Ireland has a form of pre-enactment review - a highly secretive process heavily dominated by the executive - it is a variant far removed from the ideal-type outlined in theoretical accounts. Consequently, it instantiates very few of the benefits typically associated with pre-enactment review.
Aiming to compensate for a dearth of literature on this issue, this article makes the case for greater parliamentary involvement when assessing the compliance of policy proposals with constitutional commitments. This article proceeds in four parts. Part I outlines the strongest normative justifications for parliamentary involvement in pre-enactment constitutional review in theoretical ideal-type accounts offered by scholars. Part II outlines the Irish constitutional review process. It traces the predominant role played by the executive and judiciary, and how parliament is largely excluded from any substantive participation. Part III gives a comparative account of how several other common-law parliamentary systems implement parliamentary engagement with rights issues. I focus on Canada, New Zealand and the United Kingdom. I suggest practical attempts to realise the benefits associated with the ideal-type have had mixed success. The efficacy of pre-enactment review at promoting them appears contingent on the broader socio-political framework of the system pre-enactment review is embedded. Thus, political party cohesiveness and the extent of institutional fusion between parliament and the executive have impacted realisation of these benefits. However, the form and structure pre-enactment review itself takes also has an impact on efficacy. Systems where the process is heavily executive - dominated, opaque and secretive appear to veer further from the benefits of the ideal-type. In contrast, where the structure of pre-enactment review is more transparent, and carves out institutional space for parliament to scrutinise and contest executive decisions, it offers a closer approximation to those promoted in theoretical accounts. Overall, pre-enactment review generally represents a rough approximation of the account offered by theorists. That said, even though few systems approximate the ideal-type account, a more transparent form of pre-enactment review with a structured role for parliament can nonetheless retain important benefits that the Irish system could similarly gain. In Part IV I distill the various factors considered in Part III to guide potential institutional reforms aimed at facilitating a more pronounced role for parliament over constitutional review. I tentatively suggest that the recent innovation of pre-legislative scrutiny - if accompanied by several additional initiatives - may serve as good starting basis for any conversation concerning reform. These amendments include reforming the extremely secretive and opaque process of executive branch legal review, and promoting greater parliamentary capacity to contest and scrutinize executive determinations through creation of a nonpartisan, specialized and well-resourced constitutional law committee. However, Part V concludes on a note of caution and highlight the obvious barriers which may hamper attempts at cultivating greater parliamentary involvement over constitutional review, notwithstanding any reforms.
Keywords: Constitutional law, Irish politics, Attorney-General, Judicial Review, Constitutional Review
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