{"id":4837,"date":"2018-09-28T19:58:40","date_gmt":"2018-09-28T19:58:40","guid":{"rendered":"http:\/\/legalblog.ie\/administrative-principles\/"},"modified":"2018-09-28T19:58:40","modified_gmt":"2018-09-28T19:58:40","slug":"administrative-principles","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/administrative-principles\/","title":{"rendered":"Administrative Principles"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#Administrative_Law\" title=\"Administrative Law\">Administrative Law<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#Separation_of_Powers\" title=\"Separation of Powers\">Separation of Powers<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#The_Rule_of_Law\" title=\"The Rule of Law\">The Rule of Law<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#Law_and_Rule_Making\" title=\"Law and Rule Making\">Law and Rule Making<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#European_Communities_Acts\" title=\"European Communities Acts\">European Communities Acts<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#Delegated_Rule_Making\" title=\"Delegated Rule Making\">Delegated Rule Making<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/administrative-principles\/#Circulars_and_Practice\" title=\"Circulars and Practice\">Circulars and Practice<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Administrative_Law\"><\/span>Administrative Law<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Administrative law is the law relating to government and local authorities, semi-state and other governmental bodies. It deals with the relationship between members of the public and the governmental bodies. A fundamental principle of the Irish Constitution is that the government and its agents are subject to the law.\u00a0 Formerly, the State enjoyed certain immunities. Most of these have been found to be unconstitutional.<\/p>\n<p>Administrative rules themselves are found in statutes, statutory instruments and administrative practice as reflected in circulars and other statements of practice. The extent to which the government and state bodies have discretion depends on the particular rules and the subject matter, with which it deals. In some cases, there will be no scope for discretion and the legislation may provide clear right and entitlements for citizens. In other cases, the position will be more open.<\/p>\n<p>Administrative law, in the sense of the manner in which courts deal with disputes between individuals and the State, is profoundly affected by and subject to the Constitution, the \u00a0European Convention on Human Rights as well as common law principles shared with the UK. The Courts don\u2019t second-guess the decisions of the administration. However, if decisions are outside the powers of the administrators, on the basis of inconsistency with law, legal principles or the Constitution, the courts may make review the decisions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Separation_of_Powers\"><\/span>Separation of Powers<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>This principle of \u201cseparation of powers\u201d is reflected in the Constitution, \u00a0and applies in most western democracies. It requires that bodies that make laws and policies, the bodies that administer implement those laws and policies and the bodies that adjudicate on disputes between citizens and citizens and the state, should be separate and independent of each other. The principle of separation of powers is significantly diluted in practice, but it still embodies fundamental broad truths about the functioning of government (in the broadest sense).<\/p>\n<p>The relative extent of separation and independence differs between the three branches of government. The independence of the courts (the judiciary) is strongly upheld by the Constitution. See our separate section in that regards. The legislative branch (the lawmakers) is more closely connected to the administration (the executive) under the Irish and UK systems, than under some systems, such as the US or French system.<\/p>\n<p>The legislators elect the Government (in the sense of the Cabinet) and make the laws under which the administration operates. However, the Government in practice controls the legislature (the Oireachtas \/ parliament). The administration is also under the general control of the Government, even though the details of it they may or may not do, are determined by law, made by the Oireachtas.<\/p>\n<p>Laws are made by the Oireachtas or by other bodies or persons, such as Ministers, under delegated lawmaking powers. The executive or administration, which consists of government departments and other public bodies implements laws and rules gives effect to decisions at the individual level.<\/p>\n<p>Disputes between the State and private individuals or the state public bodies are determined by the Judges.\u00a0 The Judges are independent of the government.\u00a0 The government may not attempt to influence them in any way.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_Rule_of_Law\"><\/span>The Rule of Law<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The rule of law is fundamental to the working of the State.\u00a0 Everything which governmental bodies do must have a justification in legal rules, powers or practices.\u00a0 Governmental authorities cannot simply do what they want.\u00a0 The administration is subject to the law in the same way as private individuals and their decisions may be challenged in court.<\/p>\n<p>In principle, the administrator applies existing law and practice to the circumstances in reaching a decision.\u00a0 It is fundamental that the administrator must take account of all relevant factors and not have regard to irrelevant factors.\u00a0 Administrators cannot simply act on discretionary grounds, even where the legislation appears to provide complete discretion.\u00a0 Even in such cases, there is no absolute discretion.\u00a0 They must act in a\u00a0 manner which has regard to the purposes and objectives of the relevant power or legislation.<\/p>\n<p>Every act which affects legal rights or expectations must have a legal basis.\u00a0 The public authorities cannot simply make decisions on a discretionary basis unless there is a legal power granting them authority.\u00a0 They are bound by law and must act in accordance with law. Powers must be exercised under predictable and ascertainable rules.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Law_and_Rule_Making\"><\/span>Law and Rule Making<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Laws are made by the Oireachtas. However, a huge quantity of regulation is made under statutory powers. These rules are so-called delegated legislation. \u00a0The Statutory Instrument Act obliges the State to publish most of these laws consecutively and publicly.\u00a0 Most of these laws are now available online on the Irish Statute database and on www.bailii.ie.<\/p>\n<p>Although public bodies and the Ministers may have power under legislation to make statutory rules, they must be within the terms of the legislation.\u00a0 Any rules, regulations or orders made outside of the scope of the legislation are void. There have been many cases where the Courts have found that particular rules were void because they were outside the terms of the relevant legislation which granted the body power to make the rules concerned.<\/p>\n<p>Under the Constitution, the lawmaking power may not be delegated by the Oireachtas to other bodies.\u00a0 In some cases, where the rulemaking powers granted by legislation have been too extensive, the Courts have decided that there has been an impermissible delegation of lawmaking powers.<strong>\u00a0 <\/strong>Legislation which permits the Minister or other rule-making bodies to amend the principal legislation is likely to be invalid.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"European_Communities_Acts\"><\/span>European Communities Acts<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A substantial amount of legislation is made by Ministers under the European Communities Acts.\u00a0 These Acts allow the State, Ministers and other entities to make rules implementing obligations under EU law.\u00a0 See our separate guides on EU law.\u00a0 The State is obliged to translate European Union law Directives into domestic Irish law within specified times limits.<\/p>\n<p>Most Directives are translated into Irish by Statutory Instruments made under the European Communities Acts.\u00a0 Often, these laws are very significant and are equivalent to Acts of the Oireachtas.\u00a0 This procedure is allowed under the special constitutional provision which permits enactment of laws required by European Union legislation in this way.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Delegated_Rule_Making\"><\/span>Delegated Rule Making<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Delegated legislation may be labelled in different ways.\u00a0 It may be made by governmental departments or other authorities.\u00a0 In each case, the power will be created by a Statute or Act which authorises the making of the relevant rules or regulations. Most delegated legislation is published as Statutory Instruments. Many rules are designated \u201cregulations\u201d.\u00a0 Others are designated \u201corders\u201d or \u201crules\u201d. The expressions are interchangeable to a large extent.<\/p>\n<p>Orders generally relate to one-off matters such as the commencement of legislation or one-off issues.\u00a0 Regulations usually refer to substantive rules. Rules are most commonly encountered in relation to procedures, such as the Court Rules.\u00a0 Schemes tend to refer to a self-contained code dealing with a narrow subject matter, often for the benefit of a limited category of people. By-laws typically refer to rules made by a non-Departmental governmental authority. \u00a0They are not usually published as statutory instruments. Local publication of bylaws is required under local government legislation.<\/p>\n<p>Many statutory instruments must be laid before the Oireachtas.\u00a0 Legislation commonly allows that they can be annulled by the Oireachtas.\u00a0 This power is rarely used. There are select committees and a Joint Oireachtas committee which deal with delegated legislation.\u00a0 There is a joint Oireachtas committee dealing with European Union affairs. \u00a0Its brief includes examining and reporting on statutory instruments under European Union legislation referred to above.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Circulars_and_Practice\"><\/span>Circulars and Practice<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Many rules derive from administrative practice.\u00a0 They may be reflected in administrative rules, departmental circulars, codes of practice, guidance notes, instructions and guidelines. There is a broad class of documents which may embody administrative rules.\u00a0 They may set out generally, how discretions and powers should and will be exercised. \u00a0They may clarify how particular discretions are exercised in practice.<\/p>\n<p>Some rules and codes are published by way of guidance. Bodies such as the Revenue Commissioners, Pensions Board and other bodies publish Guidance Notes.\u00a0 Sometimes rules or guides are published to the public on a non-technical basis. They may summarise the law in their area of operation, in addition to providing guidance on how it will be applied.\u00a0For example, the code of practice in respect of the Press Council.<\/p>\n<p>Circulars or internals are statements of practice in relation to particular matters.\u00a0 Sometimes rules, including even European Union obligations, are implemented by way of circulars and practices affecting existing administration. \u00a0A circular does not require any legislative basis, unlike statutory rules or Acts.<\/p>\n<p>The legal status of circulars and statements of practice has not yet been fully explored by the Courts.\u00a0 It is not legislation so that anything contained in it must be subject to and limited by existing legislation and powers granted by it. The legal rights of individuals under legislation must, of necessity, prevail over any inconsistent administrative rules or practices.<\/p>\n<p>Administrative practices or guidelines may create legitimate expectations as to their future exercise. \u00a0Administrative circulars probably cannot change existing law.<\/p>\n<p>Circulars can be challenged in proceedings by way of judicial review. Some circulars are issued by authorities purporting to be statements of the law.\u00a0 However, they can be interpreted and corrected by the Courts. The courts are in no way bound by them.<\/p>\n<p>Courts have the power to declare administrative practices to be invalid. Circulars setting out administrative practices or procedures are subject to judicial review. Circulars providing for administrative discretion are subject to the same principles as ordinary administrative action.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4837\" data-postid=\"4837\" class=\"themify_builder_content themify_builder_content-4837 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Administrative Law Administrative law is the law relating to government and local authorities, semi-state and other governmental bodies. It deals with the relationship between members of the public and the governmental bodies. A fundamental principle of the Irish Constitution is that the government and its agents are subject to the law.\u00a0 Formerly, the State enjoyed [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[130],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4837"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4837"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4837\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4837"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4837"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4837"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}