THE CONSTITUTION OUTSIDE THE COURTS-THE CASE FOR PARLIAMENTARY INVOLVEMENT IN CONSTITUTIONAL REVIEW

This article makes the case for greater parliamentary involvement over assessments of the compliance of policy proposals with constitutional commitments. It 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 provides a comparative account of how several other common-law parliamentary systems implement parliamentary engagement with rights issues. Part IV distils the various factors considered in Part III by way of guiding potential institutional reforms aimed at facilitating a more pronounced role for Parliament over constitutional review. It is tentatively suggested that the recent innovation of pre-legislative scrutiny-if accompanied by several additional initiatives-may serve as a good basis for commencing 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 scrutinise executive determinations through the creation of a non-partisan, specialised and well-resourced constitutional law committee. However, Part V concludes on a note of caution and highlights the barriers which may hamper attempts at cultivating greater parliamentary involvement over constitutional review, notwithstanding any reforms.