Republic of Ireland
Where bank employees challenged temporary legislation prohibiting pay increases, which later expired, the Supreme Court proceeded with the review as they were not satisfied that similar legislation would not be reintroduced.
Temporary legislation provided for the prohibition of increases to bank employee salaries. The Plaintiffs were members of an association of bank officials who had concluded a separate wage agreement with their employers when the legislation was being brought into operation. By the time of the Court hearing, the legislation had lapsed and the Defendants argued that the case was moot.
The Supreme Court unanimously refused to consider the case moot.
O'Higgins CJ referred to the Defendants' arguments as "extremely dangerous to constitutional rights". He observed "if access to the Courts is denied or prevented or obstructed, then such encroachment, being unchallenged, may become habitual and therefore, acceptable". Allowing the legislature to escape judicial scrutiny through temporary legislation would permit that arm of government to exercise a "form of legislative intimidation". Kenny J endorsed US jurisprudence, in particular the case of Southern Pacific Terminal Co. -v- Interstate Commerce Co, which applied the test of whether the issue was "capable of repetition, yet evading review". This was also identified as the relevant test in the US case of Honig v. Doe.
Points of note
This reasoning allows for the scrutiny of legislation which has expired where there are concerns that such legislation may be introduced again, on the basis that the Courts are bound to uphold and vindicate the rights guaranteed by the Constitution.