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.

Characteristics of Administration of Justice

The judicial power is clearly involved in determining the guilt or innocence of persons charged with offences. In civil cases, it is exercised in determining in a final manner by definite adjudication according to the law, rights and obligations in dispute between the citizen and citizens or a citizen and the State, (or other parties, whoever they be) and in binding the parties to such determination. The essential element is that it should have power by its determination within jurisdiction to impose rights, impose liabilities and affect rights.

McDonald v Bord na gCon, identified the following as having characteristics of the administration of justice;

  • a dispute or controversy as to the exercise of legal rights or a violation of the law;
  • determination or ascertainment of the rights of the parties or imposition of liabilities or the infliction of a penalty;
  • final determination (albeit subject to appeal) of legal rights or liabilities or the imposition of penalties;
  • enforcement of those rights or liabilities or the imposition of a penalty by the executive power of the State;
  • the making of an order by the court which as a matter of history is an order characteristic of courts of the country.

It has been held that

  • the issue by a Peace Commissioners of warrants,
  • DPP changing or substituting counts,
  • raising of tax assessments by Inspector of Taxes,
  • appointment of investigators,
  • commutation and the remission of sentence,

were not the exercise of judicial power.

Determinaiotn of Criminaily

The application of the separation of powers is more pronounced where a matter is criminal and determines criminal liability, which is reserved exclusively to the courts. The fact that a decision may have serious consequences does not make it a criminal sanction.

The fact that a censor of publications may ban a publication did not involve the indication of criminal liability even though books were confiscated. No body or person suffers punishment, normally the consequence of criminal conviction.

The former power of Peace Commissioners to remand persons in custody and grant or refuse bail was held to be unconstitutional.

The right of pardon and power to commute or remit punishment imposed by any court, exercising criminal jurisdiction is vested in the President and exercisable on the advice of the Minister for Justice.

Limited Funciotns of Judicial Nature

The Constitution specifically provides in Article 37, nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of judicial nature in matters other than criminal matters by any person or body of person duly authorised by law to exercise such function and powers, notwithstanding that such body, person or such body of persons is not a judge or a court-appointed or established as such under the Constitution.

It is not a question of limited jurisdiction, whether the limitation be in regard to persons or subject matter. It is the powers or functions which must be limited, not the ambit of their exercise. Nor is the test of limitation to be sought in the number of powers and functions which are exercised.

The exercise of functions by the Land Commission (historically vested in the judicial commissioners who were judges) was claimed to be an unconstitutional exercise of the judicial power. In Fisher v Land Commission, 1948, it was held that the powers were not judicial in nature but involved matters of policy rather than legal rights.

The powers of the Censorship Board were held to be a limited permissible quasi-judicial function within the meaning of Article 37.

Courts   & Tribunals

A tribunal is not a court in the strict sense, just because it gives a final decision because it hears witnesses on oath nor because two or more contending parties appear before it between whom it has to decide because it gives decisions that affect the rights of subjects nor because there is an appeal to the court.

The fact that the powers entrusted to a tribunal must be exercised judicially does not in itself make their exercise an exercise of the judicial power. Nor does the fact that a tribunal may incidentally have to determine legal questions involve the conclusion that it is exercising judicial power. Nor is it material that the tribunal surrounds itself with the trappings of courts or follows the usual procedure of a trial.

The Tribunal of Inquiry Act, inquiries do not constitute the administration of justice, notwithstanding that they impact on a person’s good name and have much of the trappings of a court. They have been held to be of an inquisitorial nature and not a controversy regarding the violation of law.

The determining of truth or falsity is not necessarily a judicial act, in the sense that it may only be performed by a judge. A variety of tribunals and other bodies routinely decide disputes of facts.

There have been many instances where purported adjudications by executive bodies have been found to be unconstitutional. Re Solicitors Act; the varieties and combinations of powers, with which the legislature may equip a tribunal are wide.

In each case, the particular powers must be considered in their totality and separately to see if the tribunal is invested with powers of such nature and extent that their exercise is in effect administering justice which appertains to the judicial power and which the Constitution provides is to be properly entrusted only to judges.

Professional Discipline

Tribunals having but a few powers and functions but those of far-reaching effect and importance could not properly be regarded as exercising limited powers and functions. The test as to whether power is or is not limited lies in the effect of the assigned power when exercised. If the exercise of the assigned power and function is calculated ordinarily to affect in the most profound and far-reaching way, the life, liberties, fortunes, or reputation of those against whom it has been exercised, they cannot properly be described as limited.

In Re Solicitors Act, the Supreme Court held that the disciplinary functions and in particular, striking off were not the exercise of a limited function or power of judicial nature. This function has been traditionally exercised by judges. The solicitor could be ordered by the committee to make compensation or restitution to clients.

In M v The Medical Council, it was held that the Medical Practitioners Act 1978 was constitutional because the relevant fitness of the practice committee was authorised to make findings as to misconduct followed by application to the High Court for the imposition of a sanction of more serious sanctions.

Provisions in Bord na gCon’s rules which provides power discipline was held not to be either judicial or even judicial in the limited sense of Article 37. Similarly, adjudication by the Institute of Chartered Accountants on disciplinary matters was held to be contractual in nature, and it did not involve the administration of justice.



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