Administrative law is the law relating to government and local authorities, semi-state and other governmental bodies. It deals with the relationship between members of the public and the governmental bodies. A fundamental principle of the Irish Constitution is that the government and its agents are subject to the law. Formerly, the State enjoyed certain immunities. Most of these have been found to be unconstitutional.
Administrative rules themselves are found in statutes, statutory instruments and administrative practice as reflected in circulars and other statements of practice. The extent to which the government and state bodies have discretion depends on the particular rules and the subject matter, with which it deals. In some cases, there will be no scope for discretion and the legislation may provide clear right and entitlements for citizens. In other cases, the position will be more open.
Administrative law, in the sense of the manner in which courts deal with disputes between individuals and the State, is profoundly affected by and subject to the Constitution, the European Convention on Human Rights as well as common law principles shared with the UK. The Courts don’t second-guess the decisions of the administration. However, if decisions are outside the powers of the administrators, on the basis of inconsistency with law, legal principles or the Constitution, the courts may make review the decisions.
Separation of Powers
This principle of “separation of powers” is reflected in the Constitution, and applies in most western democracies. It requires that bodies that make laws and policies, the bodies that administer implement those laws and policies and the bodies that adjudicate on disputes between citizens and citizens and the state, should be separate and independent of each other. The principle of separation of powers is significantly diluted in practice, but it still embodies fundamental broad truths about the functioning of government (in the broadest sense).
The relative extent of separation and independence differs between the three branches of government. The independence of the courts (the judiciary) is strongly upheld by the Constitution. See our separate section in that regards. The legislative branch (the lawmakers) is more closely connected to the administration (the executive) under the Irish and UK systems, than under some systems, such as the US or French system.
The legislators elect the Government (in the sense of the Cabinet) and make the laws under which the administration operates. However, the Government in practice controls the legislature (the Oireachtas / parliament). The administration is also under the general control of the Government, even though the details of it they may or may not do, are determined by law, made by the Oireachtas.
Laws are made by the Oireachtas or by other bodies or persons, such as Ministers, under delegated lawmaking powers. The executive or administration, which consists of government departments and other public bodies implements laws and rules gives effect to decisions at the individual level.
Disputes between the State and private individuals or the state public bodies are determined by the Judges. The Judges are independent of the government. The government may not attempt to influence them in any way.
The Rule of Law
The rule of law is fundamental to the working of the State. Everything which governmental bodies do must have a justification in legal rules, powers or practices. Governmental authorities cannot simply do what they want. The administration is subject to the law in the same way as private individuals and their decisions may be challenged in court.
In principle, the administrator applies existing law and practice to the circumstances in reaching a decision. It is fundamental that the administrator must take account of all relevant factors and not have regard to irrelevant factors. Administrators cannot simply act on discretionary grounds, even where the legislation appears to provide complete discretion. Even in such cases, there is no absolute discretion. They must act in a manner which has regard to the purposes and objectives of the relevant power or legislation.
Every act which affects legal rights or expectations must have a legal basis. The public authorities cannot simply make decisions on a discretionary basis unless there is a legal power granting them authority. They are bound by law and must act in accordance with law. Powers must be exercised under predictable and ascertainable rules.
Law and Rule Making
Laws are made by the Oireachtas. However, a huge quantity of regulation is made under statutory powers. These rules are so-called delegated legislation. The Statutory Instrument Act obliges the State to publish most of these laws consecutively and publicly. Most of these laws are now available online on the Irish Statute database and on www.bailii.ie.
Although public bodies and the Ministers may have power under legislation to make statutory rules, they must be within the terms of the legislation. Any rules, regulations or orders made outside of the scope of the legislation are void. There have been many cases where the Courts have found that particular rules were void because they were outside the terms of the relevant legislation which granted the body power to make the rules concerned.
Under the Constitution, the lawmaking power may not be delegated by the Oireachtas to other bodies. In some cases, where the rulemaking powers granted by legislation have been too extensive, the Courts have decided that there has been an impermissible delegation of lawmaking powers. Legislation which permits the Minister or other rule-making bodies to amend the principal legislation is likely to be invalid.
European Communities Acts
A substantial amount of legislation is made by Ministers under the European Communities Acts. These Acts allow the State, Ministers and other entities to make rules implementing obligations under EU law. See our separate guides on EU law. The State is obliged to translate European Union law Directives into domestic Irish law within specified times limits.
Most Directives are translated into Irish by Statutory Instruments made under the European Communities Acts. Often, these laws are very significant and are equivalent to Acts of the Oireachtas. This procedure is allowed under the special constitutional provision which permits enactment of laws required by European Union legislation in this way.
Delegated Rule Making
Delegated legislation may be labelled in different ways. It may be made by governmental departments or other authorities. In each case, the power will be created by a Statute or Act which authorises the making of the relevant rules or regulations. Most delegated legislation is published as Statutory Instruments. Many rules are designated “regulations”. Others are designated “orders” or “rules”. The expressions are interchangeable to a large extent.
Orders generally relate to one-off matters such as the commencement of legislation or one-off issues. Regulations usually refer to substantive rules. Rules are most commonly encountered in relation to procedures, such as the Court Rules. Schemes tend to refer to a self-contained code dealing with a narrow subject matter, often for the benefit of a limited category of people. By-laws typically refer to rules made by a non-Departmental governmental authority. They are not usually published as statutory instruments. Local publication of bylaws is required under local government legislation.
Many statutory instruments must be laid before the Oireachtas. Legislation commonly allows that they can be annulled by the Oireachtas. This power is rarely used. There are select committees and a Joint Oireachtas committee which deal with delegated legislation. There is a joint Oireachtas committee dealing with European Union affairs. Its brief includes examining and reporting on statutory instruments under European Union legislation referred to above.
Circulars and Practice
Many rules derive from administrative practice. They may be reflected in administrative rules, departmental circulars, codes of practice, guidance notes, instructions and guidelines. There is a broad class of documents which may embody administrative rules. They may set out generally, how discretions and powers should and will be exercised. They may clarify how particular discretions are exercised in practice.
Some rules and codes are published by way of guidance. Bodies such as the Revenue Commissioners, Pensions Board and other bodies publish Guidance Notes. Sometimes rules or guides are published to the public on a non-technical basis. They may summarise the law in their area of operation, in addition to providing guidance on how it will be applied. For example, the code of practice in respect of the Press Council.
Circulars or internals are statements of practice in relation to particular matters. Sometimes rules, including even European Union obligations, are implemented by way of circulars and practices affecting existing administration. A circular does not require any legislative basis, unlike statutory rules or Acts.
The legal status of circulars and statements of practice has not yet been fully explored by the Courts. It is not legislation so that anything contained in it must be subject to and limited by existing legislation and powers granted by it. The legal rights of individuals under legislation must, of necessity, prevail over any inconsistent administrative rules or practices.
Administrative practices or guidelines may create legitimate expectations as to their future exercise. Administrative circulars probably cannot change existing law.
Circulars can be challenged in proceedings by way of judicial review. Some circulars are issued by authorities purporting to be statements of the law. However, they can be interpreted and corrected by the Courts. The courts are in no way bound by them.
Courts have the power to declare administrative practices to be invalid. Circulars setting out administrative practices or procedures are subject to judicial review. Circulars providing for administrative discretion are subject to the same principles as ordinary administrative action.