What I should have mentioned in my last post...

After reading my last post about the Charter of Fundamental Rights, you're probably asking yourself the following question:

Why shouldn't the Irish Supreme Court be allowed to strike down European Union legislation if it conflicts with the fundamental rights set out in the Irish Constitution?

Here's why.

1. It's not just a question of our Supreme Court. There are twenty-six other member states, most of which have similar courts. Imagine the problem like this.

Suppose we abolished the Supreme Court but continued to let each High Court strike down legislation that they thought was unconstitutional. So far so good, you might think. You'd be wrong! Different judges interpret the law in different ways. Without an appeals mechanism to arbitrate over disagreement, chaos would reign. What was constitutional one day might be unconstitutional the next, or even the same day before a different judge.

For proof of this, just think of the number of majority decisions give by the Supreme Court itself: the X Case, Crotty, Norris, McGee and Re a Ward of Court, are just the ones I can think of, off the top of my head. And this only includes the decisions we allow the Supreme Court judges to give dissenting opinions: for post-1937 statutes, they're prohibited.

This would be how the EU would (not) work if the courts of every member states were allowed overturn EU legislation.

2. Different member states have different kinds of constitutions. French and British judges aren't allowed consider the constitutionality of legislation. The United Kingdom doesn't even have a written constitution. It would be unfair if judges in some countries could strike down European legislation and others couldn't.

3. Some constitutions are easier to amend than others. Member states whose constitutions are easier to amend could opt themselves out — so to speak — of any EU legislation they didn’t like, by amending their constitutions.

4. There would be no way of knowing which European laws applied to which member state. Without the guarantee that other member states have to implement the same legislation that we do, why would anybody ever implement any European legislation?

In my next post I really will deal with the relationship between the Charter and Irish Constitution, and why the former won't replace the latter.