Executive Power Flashcards
What is the executive power as residue idea?
Executive power as the residue from what is left over after judicial and legislative powers are accounted for.
Webb v Ireland
The dispute centered on ancient artifacts (the Derrynaflan Hoard) discovered on private land but claimed by the State. The Supreme Court held that the artifacts belonged to the State under the National Monuments Act, showcasing the Executive’s role in protecting and asserting national interests.
Fiduciary Duty of the State:
The judgment highlighted that the Executive has a fiduciary duty to act in the public interest. This decision underscores the responsibility of the State to manage and safeguard resources deemed to have significant cultural and historical value.
Judicial Oversight of Executive Actions:
The Court emphasized the judiciary’s role in ensuring that executive actions conform to constitutional and statutory obligations, illustrating the checks and balances inherent in the Irish system of governance.
State ownership of important antiquities discovered which have no known owner = “necessary ingredient of sovereignty in a modern state” — “inherent attribute of sovereignty (Arts 5 and 10)
Laurenţiu v Minister for Justice
In Laurenţiu v. Minister for Justice [1999] 4 IR 26, the Irish Supreme Court examined the constitutionality of Section 5(1)(e) of the Aliens Act 1935, which delegated the power to deport non-nationals to the Minister for Justice. The Court found this delegation unconstitutional because it lacked clear principles and policies to guide the Minister’s discretion, thereby violating Article 15.2.1 of the Constitution, which vests exclusive law-making authority in the Oireachtas (parliament).
This decision underscores that while the Executive has the authority to control immigration and protect the state’s sovereignty, such powers must be exercised within a framework established by the legislature. The ruling emphasizes the necessity for the Oireachtas to provide specific guidelines when delegating powers to the Executive, ensuring that any discretion exercised aligns with constitutional principles.
In response to this judgment, the Immigration Act 1999 was enacted to address the identified constitutional issues. The Act outlines detailed procedures and criteria governing the detention and removal of non-Irish nationals, thereby providing the necessary legislative framework for the Minister’s actions in immigration matters.
Barlow v Minister for Agriculture, Food and the Marine
In Barlow v. Minister for Agriculture, Food and the Marine [2016] IESC 62, the Irish Supreme Court addressed the legality of Northern Ireland fishing vessels operating within Ireland’s territorial waters under the longstanding voisinage (neighborliness) arrangements. These informal agreements permitted reciprocal fishing access between Ireland and Northern Ireland within the 0 to 6 nautical mile zone of their respective territorial waters.
The Court concluded that, under Article 10 of the Irish Constitution, the exploitation of natural resources, such as fisheries, must be regulated by legislation enacted by the Oireachtas (the Irish Parliament). It found that the voisinage arrangements, being informal and not underpinned by domestic legislation, did not satisfy this constitutional requirement. Consequently, the Court declared that permitting Northern Ireland vessels to fish in Ireland’s territorial waters without legislative authorization was unconstitutional.
This decision underscores the principle that the Executive’s authority to enter into agreements, especially those involving the exploitation of natural resources, is subject to constitutional constraints. Specifically, such agreements require formal legislative approval to be valid. The ruling emphasizes the necessity for the Executive to operate within a legal framework established by the Oireachtas, ensuring that any arrangements affecting national resources are democratically sanctioned and constitutionally sound.
In response to this judgment, the Irish government enacted the Sea-Fisheries (Amendment) Act 2019 to provide the necessary legislative basis for the voisinage arrangements, thereby aligning them with constitutional requirements.
Friends of the Irish Environment v Government of Ireland
n Friends of the Irish Environment v. Government of Ireland [2020] IESC 49, the Irish Supreme Court scrutinized the National Mitigation Plan (NMP) adopted in 2017 under the Climate Action and Low Carbon Development Act 2015. The Court found that the NMP lacked the specificity required by the Act, rendering it insufficient to achieve Ireland’s National Transition Objective of becoming a low-carbon, climate-resilient, and environmentally sustainable economy by 2050.
Chief Justice Clarke noted that parts of the NMP were “excessively vague or aspirational,” emphasizing that the plan should provide enough detail for an interested member of the public to understand and assess how the government intends to meet its climate objectives.
This ruling underscores that while the Executive has the authority to formulate plans and set goals, such plans must be concrete and detailed, especially when mandated by legislation. The decision highlights the judiciary’s role in ensuring that executive actions comply with statutory requirements and that governmental plans are actionable and transparent.
Therefore, the key takeaway regarding executive power from this case is that the Executive must create detailed and specific plans when required by law, ensuring they are actionable and allow for public assessment, rather than issuing vague or aspirational statements.
Why was the National Mitigation Plan from the Friends of the Irish Environment Case considered an executive action?
-had no basis in statute
-was a formal decision by the Government
-went beyond a statement of mere policy or political aspiration
-had “solemnity and importance of a government plan”
-was intended to have direct influence on down-stream land use & development decisions by national, regional & local decision makers
Burke v. Minister for Education
In Burke v. Minister for Education [2022] IESC 1, the Irish Supreme Court examined the government’s decision to replace the traditional Leaving Certificate examinations with a Calculated Grades Scheme (CGS) in response to the COVID-19 pandemic. This case provides significant insights into the exercise of executive power, particularly in emergency situations.
Key Takeaways:
Exercise of Executive Power:
The Court affirmed that implementing the CGS was an exercise of the executive power of the State under Article 28.2 of the Constitution. This underscores the Executive’s authority to make significant policy decisions, especially during emergencies.
Judicial Review Standards:
The Court clarified that when executive actions impact individual constitutional rights, the standard of judicial review is not limited to assessing a “clear disregard” of the Constitution. Instead, courts can scrutinize whether such actions are reasonable and proportionate, ensuring that executive decisions respect constitutional rights.
Protection of Constitutional Rights:
The judgment emphasized that the Executive must consider and protect constitutional rights, such as the right of parents to home-school their children. The CGS’s exclusion of certain home-schooled students was found to interfere with these rights, highlighting the necessity for the Executive to ensure that policies are inclusive and respect constitutional guarantees.
Limits of Executive Discretion:
The decision illustrates that while the Executive has discretion in policy-making, especially during crises, this discretion is not absolute. Policies must be implemented in a manner that is fair, reasonable, and compliant with constitutional obligations.
What are some reasons why the COVID-19 scheme in Burke was seen as a function of executive power?
-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”
-departmental circulars issued to give effect to the Government’s decision were not merely “administrative”, but part of the exercise of the executive power
Byrne v Ireland
Pothole case
Was Ireland immune from suit in respect of torts committed by its servants?
Held, the prerogative of immunity from suit had not survived the enactment of the Constitution of the Irish Free State in 1922 (so Article 49 was irrelevant)
The King in the Irish Free State was a constitutional officeholder, not the personification of state power
What executive power standard was set in Boland?
When the way the Government has exercised one of its constitutional powers is challenged in court, the standard of review is whether there has been a ‘clear disregard’ of the Constitution
In general, what things can the executive power in Ireland not do?
take away anyone’s rights
impose any new liabilities
confer any legal immunity
Gearty v DPP
The applicants’ case, as pleaded in the statement of grounds, had sought to challenge the validity of the Natural Habitats Regulations on the basis, principally, that the Minister had acted ultra vires his powers under Section 3 of the European Communities Act 1972 in purporting to create an indictable offence. Put otherwise, it had been argued that the Habitats Directive did not articulate principles and policies which would allow the Minister lawfully to make regulations which created an indictable offence.
-The Oireachtas may validly empower a Minister to create an indictable offence when he or she is making regulations to give effect to EU law
-A Minister’s creation of such an offence is valid if there is an “objective necessity” to do so in order to ensure that EU law is implemented effectively
- a restatement of the principles established in NECI and Conway
The dispute centered on ancient artifacts (the Derrynaflan Hoard) discovered on private land but claimed by the State. The Supreme Court held that the artifacts belonged to the State under the National Monuments Act, showcasing the Executive’s role in protecting and asserting national interests.
Fiduciary Duty of the State:
The judgment highlighted that the Executive has a fiduciary duty to act in the public interest. This decision underscores the responsibility of the State to manage and safeguard resources deemed to have significant cultural and historical value.
Judicial Oversight of Executive Actions:
The Court emphasized the judiciary’s role in ensuring that executive actions conform to constitutional and statutory obligations, illustrating the checks and balances inherent in the Irish system of governance.
State ownership of important antiquities discovered which have no known owner = “necessary ingredient of sovereignty in a modern state” — “inherent attribute of sovereignty (Arts 5 and 10)
Webb v Ireland
In this case, the Irish Supreme Court examined the constitutionality of Section 5(1)(e) of the Aliens Act 1935, which delegated the power to deport non-nationals to the Minister for Justice. The Court found this delegation unconstitutional because it lacked clear principles and policies to guide the Minister’s discretion, thereby violating Article 15.2.1 of the Constitution, which vests exclusive law-making authority in the Oireachtas (parliament).
This decision underscores that while the Executive has the authority to control immigration and protect the state’s sovereignty, such powers must be exercised within a framework established by the legislature. The ruling emphasizes the necessity for the Oireachtas to provide specific guidelines when delegating powers to the Executive, ensuring that any discretion exercised aligns with constitutional principles.
In response to this judgment, the Immigration Act 1999 was enacted to address the identified constitutional issues. The Act outlines detailed procedures and criteria governing the detention and removal of non-Irish nationals, thereby providing the necessary legislative framework for the Minister’s actions in immigration matters.
Laurenţiu v Minister for Justice
In this case, the Irish Supreme Court addressed the legality of Northern Ireland fishing vessels operating within Ireland’s territorial waters under the longstanding voisinage (neighborliness) arrangements. These informal agreements permitted reciprocal fishing access between Ireland and Northern Ireland within the 0 to 6 nautical mile zone of their respective territorial waters.
The Court concluded that, under Article 10 of the Irish Constitution, the exploitation of natural resources, such as fisheries, must be regulated by legislation enacted by the Oireachtas (the Irish Parliament). It found that the voisinage arrangements, being informal and not underpinned by domestic legislation, did not satisfy this constitutional requirement. Consequently, the Court declared that permitting Northern Ireland vessels to fish in Ireland’s territorial waters without legislative authorization was unconstitutional.
This decision underscores the principle that the Executive’s authority to enter into agreements, especially those involving the exploitation of natural resources, is subject to constitutional constraints. Specifically, such agreements require formal legislative approval to be valid. The ruling emphasizes the necessity for the Executive to operate within a legal framework established by the Oireachtas, ensuring that any arrangements affecting national resources are democratically sanctioned and constitutionally sound.
In response to this judgment, the Irish government enacted the Sea-Fisheries (Amendment) Act 2019 to provide the necessary legislative basis for the voisinage arrangements, thereby aligning them with constitutional requirements.
Barlow v Minister for Agriculture, Food and the Marine
