Cases- what is executive power

Question 1

• The adoption, by the Government, in 2018 of the two strands of “Project Ireland 2040” was exercise of executive power- no statutory basis— legislation passed later -fell “well short of the level of specificity required” by a previous 2015 Climate Act
• FIE lacks standing to bring its claims under the Constitution or ECHR

Answer 1

Friends of the Irish Environment CLG v
Government of Ireland

Question 2

• Government made a decision to establish the Leaving Certificate Calculated Grades; there was no statutory basis for doing so
• Was this exercise of the executive power of the State?
• Yes, because it— was expressed to be an exercise of the executive power
  had no ostensible legislative underpinning and is clearly not the exercise of legislative (or still less judicial) powers
• the departmental circulars issued to give effect to the Government’s decision were not merely “administrative” in nature, but part of the exercise of the executive power, at departmental level
• such a test of “clear disregard” of the Constitution does not apply when the exercise of the executive power of the State has had a direct effect on the constitutional rights of the applicant; instead the correct test is the one that would be applied to determine the validity of an Act of the Oireachtas that had a similar effect

Answer 2

Burke v Minister for Education

Question 3

• SC held that prerogatives did not survive the enactment of the Constitution of Saorstát Éireann
• including right to treasure trove, still found a reason why it belongs to the state
• State ownership of important antiquities discovered which have no known owner = “necessary ingredient of sovereignty in a modern state” — “inherent attribute of sovereignty”

Answer 3

Webb v Ireland

Question 4

• Was King &/or Irish Free State immune from suit? Can the State now claim to be (Art 49)?
• No—IFS was distinct from King, who had only the powers & functions expressly given him by the Constitution - state can be sued

Answer 4

Byrne v Ireland

Question 5

• “the executive of a State, as an incident of sovereignty, has power & control over aliens”

Answer 5

Laurenţiu

Question 6

• Cabinet confidentiality does not prevent a Government decision being quashed because of the objective or apparent bias of a Minister who participated in making it
• unlawful dismissal

Answer 6

Kelly v Minister for Agriculture

Question 7

• courts have no power to interfere with executive unless clear disregard
• Government having conference with British and NI was just them doing executive power - international relations

Answer 7

Boland v An Taoiseach

Question 8

• declaration that fishing by Northern Ireland vessels for mussel seed within the territorial waters of the State is not permitted by law
• the Voisinage Arrangements were not unlawful but that, as it stands, there is insufficient provision for them in domestic law
• Sea-Fisheries (Amendment) Bill to address the issues raised by the Supreme Court

Answer 8

Barlow v Minister for Agriculture