The Constitution lays down details regarding the administration and organisation of the government and the Courts. The head of the government is the Taoiseach or Prime Minister. In practice, the Irish designation is invariably used.
The Taoiseach is appointed by the President on the nomination of the Dáil. The Taoiseach must be a member of the Dáil. The Taoiseach is the head of government and has overall responsibility for the formulation and making of policy and the execution of the law.
The Taoiseach has certain specific powers and duties under the Constitution. He appoints government Ministers, may request a dissolution of the Dáil (unless he has lost the support of the majority), keeps the President informed generally on national and international matters, nominates the Tánaiste, may fire Ministers, appoints the Attorney General and represents the country in the European Council.
The Taoiseach must resign if he loses the support of the majority of the Dáil. This terminates the appointment of all government Ministers. The government continues in a caretaking role until the new government is appointed.
The government is appointed by the Taoiseach. There must be between seven and fifteen government ministers, including the Taoiseach. Ministers must be members of either the Dáil or Seanad. The Taoiseach, Tánaiste and Minister for Finance must be members of the Dáil. A maximum of two Senators may be government Ministers.
The Taoiseach assigns functions to Ministers. The Ministers and Secretaries Acts define the functions and responsibility of Ministers. There is typically an element of reorganisation and reassignment of departments upon change of government. Responsibilities under specific legislation may be moved from one department to another. Departments may be reorganised.
It is possible for a person to be appointed Minister without having any responsibilities. However, this is extremely rare and unlikely to happen in modern times.
Discussions between members of the government are confidential and privileged. Ministers must act as a collegiate body. Every Minister therefore takes responsibility for the decisions of the government.
Ministers may not be cross-examined in Court on proceedings at Cabinet meetings. Discussions at Cabinet level cannot be disclosed before a Court or Tribunal. Government Ministers may not disclose Cabinet discussions even voluntarily. Courts and Tribunals cannot obtain evidence in relation to matters discussed at Cabinet level.
A constitutional amendment in 1997 provided for the possibility that a Tribunal or Court of law may seek and obtain information on Cabinet discussions if there is an overriding public interest, in the case of Tribunals, or it is shown to be in the interest of the administration of justice in a Court case. Application must be made to a Court or Tribunal for the disclosure to be permissible.
The Constitution sets out the basic details with respect to the system of Courts. The Courts have sole and exclusive power to administer justice. Administration of justice means the determination of legal disputes between individuals.
The High Court and Supreme Court are provided for under the Constitution. The Supreme Court is the highest Court. Its powers are confined almost exclusively to hearing Appeals on point of law. It generally hears cases on the basis of a transcript of evidence from the High Court or lower Courts.
There are exceptional circumstances where Bills may be referred directly to the Supreme Court for an opinion and a review of their constitutionality before they become law.
There are eight Supreme Court Judges; a Chief Justice and seven others. The Court can sit in groups of three, five or, rarely, seven.
The High Court has the power to hear all disputes. It hears both civil and criminal cases. The constitutionality of the law may only be challenged in the High Court or on Appeal to the Supreme Court. Unless legislation otherwise provides, any High Court decision may be appealed to the Supreme Court. All High Court decisions in relation to the Constitution may be appealed to the Supreme Court.
The lower Courts, namely the District and Circuit Courts, are not directly recognised by the Constitution. The Constitution only contemplates the courts below the level of the High Court.
Judges are appointed by the President on the instruction of the government. Since 1995, appointments have been made on the recommendation of the Judicial Appointments Advisory Board.
High Court or Supreme Court Judges must have previously practised as a barrister or solicitor for at least 12 years. A Circuit Court Judge of four years may be appointed to the High Court or Supreme Court. A Circuit or District Court Judge must have practised as a solicitor or barrister for at least ten years.
Judges are obliged to act impartially without fear or favour. If there is a question in which a Judge may appear to have an interest, they will generally excuse themselves.
The Constitution guarantees that Judges are independent in their functions and subject only to the law. The government or Oireachtas may not interfere with ongoing proceedings. Once a case has been decided they may not overturn the decision, although they may change the law in respect of other cases.
Administration of Justice
The administration of justice is exclusively a matter for the Courts. Generally, the administration of justice involves a determination of a dispute in relation to legal rights. This may be a criminal case, civil case or another type of determination. The guilt or innocence of persons is almost invariably a judicial matter.
The matter of imposition of a penalty or punishment is exclusively one for the Courts. However, the government may legitimately cut short existing sentences or deal with matters such as parole and release. The Minister for Justice may remit or commute sentences. The law may designate a range of penalties from which a Judge may choose or impose mandatory penalties.
There has been a good deal of controversy regarding the question of whether disciplinary hearings which have a severe impact on the person concerned are equivalent to judicial functions. Most of the professional disciplinary procedure legislation allows for an ultimate confirmation of the decision by a Court. This is done out of concern that they may otherwise be an unlawful purported judicial function.
It has been held, for example, that internal prison discipline is not judicial. Similarly, disciplinary matters in employment and other equivalent functions are not required to be heard by a Court.
The Constitution allows limited types of judicial functions to be determined by bodies other than Courts. This does not apply to criminal matters. An unlimited power is one that may affect in a profound or far-reaching way the life, liberty, fortune and reputation of the persons concerned.
These limited judicial functions may be exercised by administrative bodies in the public sector under Article 37. Examples include An Bord Pleanála and numerous other administrative appeal bodies. See our sections on administration.