The Irish Constitution delineates the functions of the Oireachtas, comprising Dáil Éireann, Seanad Éireann, and the President. The Houses of the Oireachtas is to convene in or near Dublin or as otherwise determined. Sessions must be public, though a two-thirds majority can approve private sittings in special emergencies.
The Constitution vests lawmaking power in the Oireachtas. It may delegate authority to create detailed rules and procedures. Impermissible delegation beyond principles and policies within the legislation may render the legislation itself unconstitutional.
The President holds a formal role only in relation to legislation. With the exception of the right to refer bills to the Supreme Court to test their constitutionality, the President must sign bills passed by the Houses of the Oireachtas into law.
The President retains the right to deny a dissolution of the Dáil to a Taoiseach lacking majority support. Additionally, the President can convene meetings of either or both Houses on matters of national importance.
The exclusive authority to create laws for the state resides in the Oireachtas. Most legislation originates from government departments, sponsored by ministers, and drafted by the Parliamentary Draftsman’s Office, with legal and constitutional guidance from the Attorney General.
Private bills addressing local or individual matters are infrequent compared to public bills, which have general application when passed. The Constitution classifies bills into money bills, referendum bills, and ordinary bills. Ordinary bills can commence in either house and then move to the other, with provisions for one house to accept a bill passed by the other, thereby passing it collectively.
The Seanad lacks the power to veto money bills. For ordinary bills, the Seanad can delay for a maximum of 90 days, reducible in cases of urgency or emergency. As the primary directly elected house, the Dáil holds the government accountable, particularly in financial matters.
The Oireachtas cannot enact any law conflicting with the Constitution. Laws are such laws invalid to the extent of their conflict. The Oireachtas cannot retroactively declare acts as law infringements.
The Constitution mandates the Oireachtas to enact legislation detailing governmental mechanisms. For instance, while the Constitution outlines broad electoral law parameters, the Oireachtas legislates further details within this framework.
A critical constraint on Oireachtas power is the obligation to uphold individuals’ fundamental rights, subject to constitutional law sections. The High Court Cour of Appeal and the Supreme Court hold appellate rights to judicially review legislation for compliance with the Constitution.
Separation of Powers
The separation of powers mandates mutual respect among governmental branches. Courts refrain from direct interference in the legislative process but retain the authority to review laws post-passage.
Courts safeguard the constitutional rights of individuals appearing before Oireachtas committees, particularly concerning damage to their reputation.
The principle of separation of powers also restricts the Oireachtas from legislating on matters under dispute in ongoing litigation. Retroactive changes to the law are permissible, but interference with ongoing court adjudications is prohibited.
European Union I
International agreements must not become part of the law of the State unless so so determined by the Oireachtas. This differs from the position in many other jurisdictions, where international treaties, once ratified by the government or one branch of government, automatically have the force of law.
Ireland’s accession to the EEC (European Economic Community, now the EU) involved a constitutional amendment altering the Oireachtas’ exclusive lawmaking power. The amendment allowed measures adopted by the EU to have the force of law, with regulations under EU law automatically effective. Directives can hold direct effect if sufficiently clear, precise, and overdue for enforcement.
Ireland’s accession to the EEC (another European Union) was facilitated by a Constitutional amendment that modified the exclusive lawmaking power of the Oireachtas. The original referendum provided an addition to the Constitution stating that no provision of the Constitution prevents laws enacted or measures adopted by the European Union from having the force of law.
Directives must be translated into effect. Directives can have direct effect where they are sufficiently clear, precise, and overdue for enforcement.
European Union II
The European Communities Act 1972 allows Ministers to make regulations for the purpose of giving effect to European laws. They may make supplementary and additional provisions as they consider necessary for the purpose of giving effect to EU rules, including provisions amending, appealing, or modifying other laws, including acts of the Oireachtas.
The provisions must be necessitated by the obligation of membership of the EU. No law may be invalidated which is necessitated by such membership.
Because European Union legislation is considered by the European Union’s own legislative bodies, namely the Council and European Parliament, the transposition into law does not involve examination by the Oireachtas. The Supreme Court has upheld a challenge to the Constitutionality of a section of the European Communities Act on the basis of it being necessary to give effect to European Union legislation.
The European Communities Act 2007 allows delegated legislation implementing EU law to be made under other legislation for the purpose of amending that legislation provided that the legislation deals with matters subject to the European Union law being implemented.
The Houses of the Oireachtas have a secondary role in relation to European Union legislation. It does not involve scrutiny of the legislation itself. Under the European Communities legislation, the Houses of the Oireachtas may annul a statutory instrument implementing EU law within one year. This follows a recommendation by the Oireachtas joint committee on European affairs.
The referendum on the Lisbon Treaty allows for the application of certain provisions under European Union legislation to be decided by the Houses of the Oireachtas. These relate to certain home affairs and enhances cooperation procedures contemplated by the Lisbon treaty amendments.
Government & Oireachtas
The Oireachtas is responsible for holding the government to account. The Constitution provides that the government is responsible to Dáil Éireann. The Dáil nominates the Taoiseach, and the President formally appoints the Taoiseach (without discretion; the Taoiseach nominates the members of the government for approval by the Dáil and appointment by the President). The Taoiseach who ceases to hold the support of the majority of the Dáil must resign.
The government is collectively responsible to the Dáil. However, each individual member is answerable to the Dáil in relation to his own department’s functions. In addition to the Constitutional provision making the government ministers accountable to the Dáil, legislation establishing state agency may register their officers accountable to the Dáil in a general sense.
The Dáil must consider estimates submitted by the government in relation to expenditure. Attempts in the past to have the court order the government to undertake expenditure in accordance with legal and even Constitutional rights have been unsuccessful. The courts will allow significant deference to the government and Dáil in relation to the determination of policy on economic and financial matters.
War may not be declared without the consent of the Dáil.
The Houses of the Oireachtas may impeach a judge for stated misbehavior or incapacity. By a special majority, it may also impeach the President on the basis of incapacity or misbehavior. The courts allow the Oireachtas a significant degree of freedom in relation to the determination of its procedures on impeachment.
Power over Members
The Houses of the Oireachtas enjoy certain inherent powers. They have established their own rules and standing orders, attaching penalties for any infringements. Each House has an elected chair and a deputy chair who does not have a vote. The Ceann Comhairle may exercise a casting vote in the event of a tie. The Ceann Comhairle is a member of the Dáil and is reelected in the following general election without contest.
Each House has the authority to suspend or expel members for breaching procedures. The standing orders outline provisions for the suspension of a member of the House if they disregard the authority of the chair, engage in grossly disorderly conduct, or for breaches of ethics in public office legislation.
Members may be suspended on the spot for disruptive behavior, and prolonged suspension may be imposed as a penalty.
Each House of the Oireachtas has the power to ensure freedom of debate and may protect itself and its members against interference, molestation, or attempts to corrupt its members in the exercise of their duty.
The Houses of the Oireachtas hold the power to protect their official documents and members’ private papers. The extent of this protection remains unclear. The Supreme Court has ruled that members of the Oireachtas are subject to the normal obligations of disclosure to courts and tribunals.
All official reports and publications of the Oireachtas are privileged, meaning they are immune from challenge on the basis of privacy breaches, defamation, or other means.
Speeches made in the House are typically published. Members of the House are not accountable to any authority other than the House itself regarding such utterances. Legislation provides for privileges for speeches during committee sessions. Witnesses appearing before committees are given statutory privilege.
To prevent abuse of privilege from legal processes for speeches, Dáil standing orders aim to prevent its misuse. The House’s standing orders also strive to prevent the abuse of privilege, akin to contempt of court. They seek to halt proceedings related to criminal pending legal matters, ensuring that members do not encroach upon the judiciary’s independence regarding ongoing trials.
Speeches made in the Houses of the Oireachtas cannot be introduced in legal proceedings, even for the purpose of uncovering inconsistencies or challenging evidence. However, regarding general principles and policies, matters outlined in parliamentary debates are accepted as views of policy and principle.
Members of the House of Oireachtas are granted immunity from arrest, except in cases of treason, felony, and breach of the peace.
In the well-known Abbeylara case, the courts undertook a judicial review of the Houses of the Oireachtas subcommittee investigation into a fatal shooting by Gardaí at Abbeylara. The Supreme Court decided that the Houses of the Oireachtas do not have Constitutional power to conduct a fact-finding enquiry that might impact upon a person’s reputation. The Courts emphasized that the Oireachtas was not entitled to adjudicate on citizens and their conduct.
A general inquiry, even one that might incidentally impugn individuals, would be permissible. The Oireachtas might conduct an inquiry into matters of competency or efficiency in administration, policy implementation, and make findings accordingly.
However, the courts will not readily intervene to review the lawmaking process itself. In a case where there was an attempt to challenge the propriety of the Ceann Comhairle allowing questions, the Supreme Court refused to intervene.
Courts are willing to intervene concerning fair procedures in the Dáil committee. Where the procedures of a committee impact upon a person’s Constitutional rights, they will be entitled to fair procedure.