Separation of Powers I

Separation of Powers

The Constitution provides for a separation of powers. This principle is found in the Constitutions of most Western democracies. The lawmaking power, the executive or administrative power and the courts are largely separate.

Each body or organ of the State should not trespass on another. This is a traditional idea dating back many hundreds of years. It is designed to prevent corruption and the abuse of power by a single body.

The separation of powers is a simplification and is subject to limitations in some cases. The separation is far from precise. The Government is elected by and is, in theory, answerable to the Oireachtas. However, in practice, the Government dominates the Oireachtas due to the system of political parties. Similarly, although independent, judges are appointed by the President on nomination by the Government.

Basic Institutions

The main bodies of the State, namely the President, the Oireachtas, the Government and the Courts are given detailed recognition in the Constitution. Much of the mechanics of the four institutions are set out in detail in such a way that cannot be changed other than by referendum.

The following looks at some of the constitutional framework for the institutions of State. See separate section and chapters on government and the various institutions of the State for additional information.

The Constitution requires the existence of the Oireachtas (Parliament). The Oireachtas elects the Government and passes and makes laws. In practice, the Government dominates and controls the Oireachtas. The Government implements policies and administers laws. See separately the guides on Government.

The President is the head of State and is elected directly by the people. He is to be above politics. He represents the State on formal occasions. The President is the so-called “guardian” of the Constitution. The Constitution creates a system of Courts and confers functions on them in relation to the adjudication of individual disputes.

The Courts administer justice. The High Court and Supreme Court have the exclusive jurisdiction or power to interpret the Constitution and to apply it. They hear individual disputes and apply the existing law. The Oireachtas cannot pass a law to affect the outcome of an existing dispute. Once the case is pending, it can only be decided by the Courts. The Oireachtas cannot make a retrospective change in the law.

The power to make laws is vested in the Oireachtas. Although many laws give the Executive (e.g. the relevant Minister) the power to make rules, they may be struck down as constituting lawmaking if they go beyond filling in the gaps in the legislation. In principle, the Courts may not make new laws. They are limited to interpreting the existing laws.

The Government has exclusive executive power. The Oireachtas may not make laws which purport to make individual decisions. It may make general rules only. Similarly, the Courts may not make executive decisions. The Courts may not order the State to provide facilities or undertake particular actions. They make decisions on disputes between parties regarding the application of existing laws to the facts.

Government

The Dáil appoints the Taoiseach. It must approve the members of the government. The Taoiseach can appoint up the two senators as members of the government.

Members of the government must be either ministers, TDs or senators. Up to two senators may be members of the government. However, this rarely happens. This may not be the Taoiseach, Tánaiste or Minister for Finance. The Taoiseach, Tánaiste and Minister for Finance must be members of the Dáil.

The government is answerable to the Dáil in relation to its decisions and actions. A Taoiseach who loses the support of the majority of the Dáil must resign unless the President agrees to dissolve the Dáil. When the Taoiseach resigns the government is deemed to resign.

Oireachtas/Law Making

The Oireachtas is the legislature or law making body. The Oireachtas refers to Dáil Éireann (the lower house) and Seanad Éireann (the upper house/Senate).

The Oireachtas has exclusive power to make laws. Neither the government nor the Courts can purport to make laws.

Where statutory instruments or rules are made by governmental ministers or departments under the legislation they may be held to be void if they go further than allowed. Delegated legislation refers to supplemental rules made under powers in legislation. The rules must follow the law rather than make a new law. The rules must not change the law as set out and passed by the Oireachtas.

The Oireachtas very frequently gives rule making power to Government departments. The Acts may give powers to ministers and others to give effect to principles and policies in legislation. They may fill in the details based on existing legal legislative policy.

In many cases, statutory instruments or rules have been found to be unconstitutional because they go further than implementing rules and principles. This may be the case even if the legislation provides rules and principles and gives specific powers. It is simply not possible for the Oireachtas to delegate its powers of legislation.

The European Union regulations made under EU law necessitated by membership of the EU is not subject to this rule.

If legislation is in force, the government may not choose to fail to implement it. While there is very considerable discretion as to the extent of implementation by the Government and Executive, a policy decision not to implement legislation would constitute an attempt to repeal the law passed by the legislature. However, if the legislation gives the government powers to postpone the commencement of legislation it may effectively do so indefinitely.

Dáil Éireann

There is absolute privilege against prosecution or legal suits for utterances made in either the Dáil or the Seanad. TDs or Senators cannot be forced to reveal their sources of information used in parliamentary debates. Certain media coverage of the same, primarily reports made verbatim or accurate reports of the comments made, are similarly immune.

The Constitution lays down the basic rules in relation to elections of the Dáil and Seanad. Citizens over 18 who are not disqualified may vote in a Dáil election. Non-citizens resident in Ireland may be afforded the right. This applies to British citizens and citizens of other states with whom there is a reciprocal agreement residing in Ireland. Citizens over 21 years of age may run for the Dáil. Certain persons, including judges, undischarged bankrupts and members of the Defence Force are not eligible.

There must be one seat for every 20,000 to 30,000 members of the population. Representation must be equal in so far as practicable. Constituent boundaries should be reconsidered after each census or, failing that, at least once every 12 years. Consistencies must have at least three seats. Voting must be by way of proportional representation and secret ballot.

Seanad Éireann

The Senate or Seanad has 60 members. Eleven are appointed directly by the Taoiseach after the general election. Six are elected by university graduates. At present this is three from the National University of Ireland (NUI) and three from Dublin University (Trinity College). The remaining forty three are elected by five special panels consisting of county councilors, TDs and senators and representing culture and education, agriculture, labour, industry and commerce and public administration.

Where a Bill is rejected by the Seanad or the Seanad proposes amendment which the Dáil does not approve, it can nonetheless be passed into law by the Dáil after a 90 day delay. The Dáil may, within a further 180 days, pass a resolution to the effect that the Bill is deemed passed by both Houses.

A money Bill is one relating to revenue or the expenditure of money. This includes the imposition of taxes, the provision of public expenditure and the supply of public money. A money Bill may only be initiated in the Dáil. The Seanad can only make recommendations, which the Dáil may choose to ignore. If the Seanad does not make recommendations within 21 days the Bill is deemed to have passed at the expiry of the 21 days.

The chairperson of the Dáil decides whether a Bill is a money Bill. The Senate can challenge the matter and the President can refer the matter to a Committee of Privileges.  The committee consists of equal members of the House, with a Supreme Court judge as chairperson.

President

The powers and functions of the President are stipulated by the Constitution. The President is deemed to take precedence over all other persons in the State. However, his functions are effectively ceremonial and intended to be above politics. The President should not enter into political discourse or debate.

The basic rules regarding the President’s election, eligibility, term and nomination for election are stipulated. The powers of the President are limited and most of them are set out in the Constitution.

In most cases, the President acts on the instructions of the Dáil or Taoiseach. The President appoints the Taoiseach on the nomination of the Dail. He summons and dissolves the Dáil, appoints members of government, the attorney general and certain other officeholders on the advice of the Taoiseach.

The Constitution allows the President to act alone in a small number of instances. The President may:

• refuse a request to dissolve the Dáil from a Taoiseach who has lost the support of the majority of Dáil members.
• refer a Bill to the Supreme Court to test its constitutionality.
• establish committees of privileges to determine if a Bill is a monetary bill.
• in an emergency, agree to shorten the time for consideration of a Bill by the Senate.
• address the nation (subject to approval by the government of the contents of the address).
• allow a request that a Bill which has been passed by the Dáil but rejected by the Senate be referred to a referendum.

Where the President is unwilling or unable to perform functions, these functions may be exercised by a presidential commission. This consists of the Chief Justice and Chairpersons of the Dáil and Seanad.