Excessive Delegation

The Separation of Powers

Article 15.2.1 of the Constitution provides that the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas. No other legislative authority has power to make any laws for the State.

Article 28.2 provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government.

Article 34.1 provides that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution.

Delegated Law Making

The Statutory Instruments Acts 1947 to 1955 provides that most classes of delegated legislation must be printed and published. They must be assigned a number. A notice of their making must be placed in Iris Oifigiúil.

Copies are to be provided to certain statutory libraries and other bodies. In practice, the availability of statutory instruments has been changed radically by the advent of the Internet. Most statutory instruments are available on the Irish statute database and other online, legal sources.

Legislation will commonly provide that rules, orders, etc. and other delegated legislation are to be laid before the Oireachtas and may be annulled by resolution of both Houses. Exceptionally, the legislation may provide that the delegated legislation cannot take effect unless a resolution is passed by one or both Houses of the Oireachtas. The procedure for laying delegated legislation before the House is dealt with in the Houses of the Oireachtas (Laying of Documents) Act, 1966.

Decide Constitutional Issue Last

The consideration of any question involving the validity of a statute or section should in appropriate circumstances be postponed to the consideration of any other question, the resolution of which will determine the issues between the parties. It is therefore proper in this case, that the question of ultra vires apart from the question of constitutionality should first be decided.

The validity of legislation must be presumed and it must be interpreted in accordance with the existence of such a presumption. Therefore, if the section is capable of being interpreted in two ways, one which would give him meaning which is consistent and permitted by the Constitution and one which is not, the meaning which is so consistent must be adopted.

Outside of Powers

Many challenges are made on the basis that rules are outside the scope of the governing legislation. Rules made under rulemaking power have been found invalid where they operate in an unfairly discriminatory manner (Purcell v Attorney General 1995).

Similarly, certain social welfare regulations, while ostensibly within the powers conferred have been found to be discriminatory on gender grounds, including by reason of applying only to a particular category, to the exclusion of others in an identical or similar category. If the regulation is demonstrably lacking in logic and unfair, it cannot be sustained within the framework of the scheme and the regulations are invalidated.

Delegated Powers without Sufficient Criteria

If the legislation and power of delegation are in overly broad term and there is insufficient criteria for determining how the power is to be exercised, it may constitute an impermissible delegation. In a case involving the Aliens Order, under which the Minister had very extensive discretion regarding deportation, it was found that the primary legislation, the 1935 Act, did not sufficiently set out the principles and policies with reference to which the rules could be made. This was so, notwithstanding that deportation is traditionally an executive area that was formerly exercised without any statutory basis at all.

The power of Joint Labour Committees to set minimum terms of employment conditions inspectors was found invalid, due to lack of criteria in the Industrial Relations Act 1946.

Extensive, wide discretionary rule-making powers are permissible and may be permissible in order to give effect to particular schemes, where it is necessary to regulate a particular business. It may be that the detailed making power is required to give effect to the objectives of and policies of the legislature, which in some cases of necessity in broader terms.

In effect, an extensive delegation of rulemaking power is required in areas such as social welfare, agricultural animal diseases and health entitlement. It would be burdensome for such systems to function effectively if each rule change was required to be enacted as legislation and piloted through the Dail.

In some cases, the rules are simply giving effect from time to time as circumstances change, to the underlying policy. The legislation may have procedures in relation to the rules, which require consultation in periodic rulemaking from time to time so that it is appropriate to the application of the policy to the prevailing circumstances.

Henry VIII clauses

So-called Henry VIII clauses purport to grant rulemaking power to amend primary legislation. Courts will scrutinise rulemaking powers as they may have the capacity to involve usurpation of the function of the legislature. They are likely to be invalid if they necessarily or inevitably change primary legislation, or they are not necessarily invalid in themselves. They may, in particular, be interpreted, in a manner consistent with the legislation and the constitutional requirements.

The Executive may frustrate the implementation of legislation. In many cases, the power to commence legislation rests with the government. In other cases, the government may cease the legislation.  A further possibility is that the executive simply refuses in practice to implement the legislation.

It was held in Purcell v Attorney General, regarding farm tax, that where the government made a decision to cease to implement it, prospectively and retrospectively that it was ultra vires and invalid.

Legislation not Implemented

The most famous example of a statute that was never been commenced is part of the Civil Liability Act, making road authorities liable for failures to maintain the public road. The Act contemplated that it might be commenced after 1967.

The failure of the government to commence the legislation was unsuccessfully challenged. In that case, the power was vested in the government in recognition of the importance of the law reform involved. In particular, it required the government to be satisfied in financial and resource terms that it could be initiated.

It does appear however that there may be circumstances in which failure to implement the law might be ultra vires, outside the powers of the Executive.