Cases- legislative power

Question 1

Facts: Once 49 Senators had been elected in 2020, did they constitute the new Seanad, even though 11 had not yet been nominated?
Decision: Art 18.1 must be read literally; all 60 have to be chosen to constitute the new Seanad
- The 49 elected Senators are also qualitatively a different body than the full 60 because allowing the Taoiseach to choose 11 Senators is part of the deliberate design of the body

Answer 1

Bacik v An Taoiseach

Question 2

• 7th amendment 1979
• HC: Seventh Amendment enabled the Oireachtas to give representation to more than two universities, but it did not require this
• SC: Art 18.4.2º requires that graduates of at least one other higher education institution be given the right to elect Senators, as well as graduates of the NUI and TCD
• suspended declaration of invalidity (courts do not intervene in legislative process) - till 2025- proposal: one constituency

literalism alone is insufficient for interpreting the Constitution

Answer 2

Heneghan v Minister for housing

Question 3

Facts:
- The Minister limited the number of permits as part of visitor management strategy—to protect cultural heritage site from wear and damage.
- Informal agreement with existing boat operators: 19 ‘permits’; one trip a day & 12 passengers for each boat
- Casey complained about Minister having the authority to limit how many ppl visit

Decision:
- Minister’s functions were ‘administrative’ not ‘regulatory’,
- Minister had statutory duty to ‘maintain’ the State property
- no ‘legislation’ of any kind - no need to apply principles and policies

administrative role

Answer 3

Casey v Minister for Arts

Question 4

• SC: application of principles applied in Gearty, using the pandemic legislation imposed mandatory hotel quarantine for those entering the State from certain countries where there was a high risk of importation of Covid-19; the power to designate which countries was delegated to Minister for Health and he designated the United Arab Emirates, The applicants, who had returned from the UAE, initially refused to undergo mandatory quarantine, for which they were arrested and charged with an offence
• only administrative- cites the principles from Gearty- final detail of adding the country

Answer 4

McGrath & Mulreany v DPP

Question 5

• An Act provided that demolishing or interfering with a national monument required consent of the Commissioners for Public Works and the local authority and approval by the
  relevant Minister
• The Government made an order purportedly transferring this function from the Commissioners to the Minister
• That order was, on its face, within the general power given to the Government to transfer functions from one Minister or public body to another
• However, the order itself was ultra vires as applied to national monuments legislation because it reduced the number of independent bodies that had to consent or approve from three to two

Answer 5

Mulcreevy

Question 6

• it is constitutional for the Oireachtas to delegate to a specialised committee (consisting mainly of judges of the court in question, along with relevant officials, and practising lawyers) the function of making rules relating to the practice and procedure of that Court generally including questions of costs; the Act in question does not have to set out the principles and policies that govern the making of rules in such a narrow area.
• However, there are some decisions (such as whether, as a general matter,costs can be awarded against a prosecutor in a criminal case) that require “democratic justification rather than technocratic expertise
• The jurisdiction of a court can be fundamentally altered by an Act of the Oireachtas only, not by a rule- maker exercising a delegated power

Answer 6

McGrath v DPP

Question 7

• Minister excluded in s 72 those entitled to damages for road accidents injuries from right to free treatment
• Only a later Act can deprive a person of rights given by a previous Act
• s 72(2) valid, but regulation invalid

Answer 7

Cooke v Walsh