Legislative Power Flashcards
What article of the Constitution is the primary touchpoint for these legislative power cases?
Art 15.2.1
Casey v Minister for Arts
Did the Minister for the Environment have the right to limit the number of permits granted for a protected environmental area?
Yes – Minister’s functions were administrative and not regulatory. Minister was not making legislation in any way.
Cityview Press v ANCO
Parties and Context: Cityview Press was an employer in the printing industry, subject to training levies imposed under the Industrial Training Act 1969. AnCO (An Comhairle Oiliúna) was the statutory authority established to oversee industrial training and to raise funds for training schemes through industry-wide levies.
Challenged Action: Cityview Press argued that the levy imposed by AnCO was unconstitutional. They claimed that the Oireachtas (Irish Parliament), by allowing AnCO to determine the amount of the levy, had delegated essential legislative power to a non-legislative body.
Principles and Policies Test:
The Supreme Court laid down what is often referred to as the “principles and policies” test. According to this test, the Oireachtas must set out clear principles and policies in the parent statute. Only non-essential details or mechanisms for implementing those principles can be delegated to a subordinate authority.
Application to the Case:
In the Industrial Training Act 1969, the Oireachtas had clearly established the purpose and framework: to promote industrial training and finance it through levies. The Act identified which industries would be covered and outlined the objectives behind imposing levies. AnCO’s role was essentially to flesh out technical details—such as the precise rate—within the scope of that policy.
Decision and Outcome:
The Supreme Court upheld the validity of the levy. It found that the Act had sufficiently defined the policy and purpose, and AnCO was simply filling in details and applying the criteria set by the Oireachtas.
The Court concluded that this did not amount to an unconstitutional delegation of legislative power. Instead, it was a permissible form of administrative rule-making operating under a clear legislative mandate
Laurenţiu v Minister for Justice
Context and Parties: Mr. Laurenţiu, a Romanian national living in Ireland, challenged a deportation order issued by the Minister for Justice. The order was made under the Aliens Act 1935 and subsequent regulations (notably the Aliens Order 1946), which granted the Minister broad powers to control and remove non-nationals.
Core Complaint: The applicant argued that the legislation gave the Minister excessively wide and unguided discretion to set the rules governing deportations. This, he claimed, amounted to an unconstitutional delegation of legislative power because it allowed the Minister to effectively make law without clear principles or policies laid down by the Oireachtas.
The Court applied the standard set out in Cityview Press v AnCO, which requires that any delegation of law-making authority to a minister or agency must be guided by discernible “principles and policies” established by the Oireachtas. The legislature must set the framework, and the delegated body may only fill in the details or implement those policies.
Insufficient Legislative Guidance:
The Supreme Court found that the Aliens Act and the related statutory instruments provided no adequate guidance or criteria to direct the Minister’s decision-making on deportation. Unlike in Cityview Press, where the Oireachtas had clearly outlined the aims and principles, here the ministerial power was overly broad and lacked the necessary legislative scaffolding.
Breach of the Separation of Powers:
The Court concluded that granting the Minister such wide latitude, without accompanying legislative principles, effectively transferred essential legislative functions to the Executive branch. This was held to be incompatible with the Constitution’s requirement that law-making power remain principally with the Oireachtas.
McGowan v Labour Court
Context: The case concerned the constitutionality of provisions in the Industrial Relations Acts that allowed agreements between employer and employee representative bodies (Registered Employment Agreements, or REAs) to be given binding legal effect on entire sectors once registered by the Labour Court.
Complaint: A group of electrical contractors (McGowan and others) challenged the validity of an REA that set binding pay rates and conditions for all employers and employees in the electrical contracting sector—even those who had not participated in, or consented to, the agreement
Similar to earlier cases (Cityview Press v AnCO, Laurenţiu v Minister for Justice, and John Grace Fried Chicken v Catering JLC), the Supreme Court examined whether the Oireachtas had delegated essential legislative functions without providing sufficient guiding principles and policies.
Private Parties Setting Law:
The REAs were negotiated by private parties (trade unions and employer groups) and then, through registration by the Labour Court, became legally binding on non-consenting third parties. The Supreme Court found this arrangement especially problematic, as it effectively allowed non-legislative, private actors to create binding norms with the force of law.
Constitutional Requirements for Delegation:
The Court reiterated that while the Oireachtas can delegate certain implementation details, it must set out clear legislative frameworks and parameters. By failing to delineate adequate principles and policies, and by enabling private parties to effectively make law, the legislation ran afoul of the separation of powers mandated by the Constitution.
Decision and Outcome:
The Supreme Court declared the system of REAs unconstitutional. It held that empowering the Labour Court to give universal binding effect to privately negotiated agreements, without sufficient statutory guidance, was an impermissible delegation of law-making authority.
Bederev v Ireland
Context: The case arose out of a challenge to the constitutionality of certain provisions of the Misuse of Drugs Act 1977. Under this Act, the Minister for Health had the power to add substances to the list of controlled drugs by way of regulations, effectively expanding criminal liability without returning to the Oireachtas for fresh legislation.
Plaintiff’s Claim: Mr. Bederev argued that granting the Minister such broad regulatory powers amounted to an unconstitutional delegation of legislative authority, as it allowed the Minister to effectively “make law” by criminalizing certain substances without adequate guidance from the legislature.
Departure from Principles and Policies test exclusively:
“That a piece of legislation could be parsed in a number of ways in an attempt to discern the true intention of the legislature, for that was always the fundamental test: by examining its purpose and effect, the historical frame of reference in which it operated, the mischief that it was set up to remedy and any prior enactment that required repeal and replacement. Individual sections and subsections as well as particular words had to be seen within the immediate and overall context of any individual piece of legislation. Similarly, the manner in which an Act fitted within the overall rule of law had to be seen in the context of what other legislation was applicable.”
Assessment of Legislative Framework:
The Court examined the Misuse of Drugs Act to see if the Oireachtas had articulated a clear purpose and criteria. It found that the Act set forth a well-defined objective: protecting public health and safety from the harm of certain substances. It also gave the Minister a structured framework within which to determine which substances should be controlled based on their potential harm.
Difference Between Making Law and Filling in Details:
The Supreme Court distinguished between the essential legislative function of making new law (which must remain with the Oireachtas) and the permissible delegation of authority to fill in technical details or respond to changing circumstances. In this case, the Minister was applying established principles to new substances rather than creating an entirely new legislative policy
Náisiúnta Leictreach Contraitheoir Éireann (NECI) v Labour Court
fter the High Court upheld the constitutionality of the Sectoral Employment Order (SEO) regime established by the Industrial Relations (Amendment) Act 2015, NECI appealed to the Supreme Court. NECI argued that the new statutory framework still amounted to an unconstitutional delegation of legislative power, failing to rectify the deficiencies identified in earlier cases like McGowan v Labour Court.
Comparison with Past Systems:
The Court considered how the updated statutory framework differed from previously invalidated wage-setting mechanisms. The central question was whether these statutory reforms adequately limited the Labour Court’s discretion by establishing measurable and principled criteria for setting employment conditions.
Separation of Powers and Accountability:
The Supreme Court analyzed whether the regime improperly shifted law-making authority away from the Oireachtas to an administrative body. The Court scrutinized the legislative instructions, ensuring they were detailed enough to maintain democratic oversight and prevent the Labour Court from “making law” rather than “applying” it.
Decision and Outcome:
The Supreme Court affirmed the High Court’s decision. It concluded that the reformed legislative framework set out sufficient principles and policies to guide the Labour Court’s actions. The Court found the Oireachtas had achieved a balance: it had not delegated its essential legislative function, but rather entrusted the Labour Court with a role that was properly circumscribed by clear legislative direction.
Conway v An Bord Pleanála
The applicant brought a leapfrog appeal challenging the constitutionality of s.28(1C) of the 2000 Act which allows the minister to make guidelines containing SPPRs, enabling planning authorities and the Board to depart from local development plans.
The applicant contended that the legislation infringed Article 15.2.1⁰ of the Constitution by giving the minister a legislative power, and infringed Article 28A as it effectively enabled the minister to override local government decisions taken democratically.
Hogan outlined seven considerations for whether Oireachtas has abdicated its law making power
Hogan noted a move away from policies and procedures test in NECI and Bederev towards “broader considerations”
[2024] IESC 34 (23 July)5
Humphreys J’s decision was broadly upheld
“[W]hile … City View Press principles and policies criteria are still important, they have to some extent been superseded by a more holistic, broader-based consideration of this question.” Hogan J ([26])
Formal supervision by the Oireachtas is merely one factor that may be relevant in some cases, and irrelevant or at least not decisive (either to save or condemn a provision) in others (O’Donnell CJ [27]-[32]); Donnelly J concurred ([9]-[11]); Dunne J concurred with both, as to this specific point ([15]).
In contrast, Hogan J appeared to treat “democratic accountability” as the key aspect of the retention of a degree of Oireachtas supervision over the delegate ([36]) and the general accountability of the Minister to the Dáil guaranteed “an important element of democratic supervision” ([39])
Gearty v Director of Public Prosecutions
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 Supreme Court (O’Donnell CJ, Charleton, Murray, Collins and Donnelly JJ) “restated” the following general propositions, based on NECI and Conway (so as to avoid an uncertainty that might “seduce judges into a re-examination of what are well-settled principles”):
1) The only test for a challenge to subsidiary legislation on the basis of vires, or authority to promulgate the measure, is whether there has been an abdication by the Oireachtas of its sole and exclusive law-making authority under Article 15.2.1º of the Constitution.
2) What requires examination in such a challenge is whether what the delegate is to do is sufficiently bounded by the terms of the parent legislation, be it an Act of the Oireachtas or a measure necessitated by European law, and guided as to the nature of the choices to be made by the subsidiary.
3) Of necessity, a choice as to the subject matter of what is delegated may lawfully, within those boundaries and subject to that guidance, be left to be made by the delegate.
4) Where the choice made is one of fundamental policy, as opposed to a limited and guided choice based on the overall text of the legislation delegating the power to make subsidiary legislation, then an abdication of the exclusive lawmaking power of the Oireachtas is manifest.
5) That control has been retained by the Oireachtas, either in the form of requiring a positive vote to confirm subsidiary legislation or by the less strong control of requiring a vote of nullification within a particular timeframe, may be important but is not essential since some subsidiary legislation is not subject to that scrutiny.
6) Article 15.2.1º is the issue and Article 5 and Article 6 are not to be brought into the equation, being liable both to confuse and being instead addressed to the fundamental structures of the Constitution, rather than representing components of the validity of delegation of the legislative function. ([]21])
Did the Minister for the Environment have the right to limit the number of permits granted for a protected environmental area?
Yes – Minister’s functions were administrative and not regulatory. Minister was not making legislation in any way.
Casey v Minister for Arts
Parties and Context: The plaintiff was an employer in the printing industry, subject to training levies imposed under the Industrial Training Act 1969. Defendant was the statutory authority established to oversee industrial training and to raise funds for training schemes through industry-wide levies.
Challenged Action: The plaintiff argued that the levy imposed by the defendant was unconstitutional. They claimed that the Oireachtas (Irish Parliament), by allowing the defendant to determine the amount of the levy, had delegated essential legislative power to a non-legislative body.
Principles and Policies Test:
The Supreme Court laid down what is often referred to as the “principles and policies” test. According to this test, the Oireachtas must set out clear principles and policies in the parent statute. Only non-essential details or mechanisms for implementing those principles can be delegated to a subordinate authority.
Application to the Case:
In the Industrial Training Act 1969, the Oireachtas had clearly established the purpose and framework: to promote industrial training and finance it through levies. The Act identified which industries would be covered and outlined the objectives behind imposing levies. The defendant’s role was essentially to flesh out technical details—such as the precise rate—within the scope of that policy.
Decision and Outcome:
The Supreme Court upheld the validity of the levy. It found that the Act had sufficiently defined the policy and purpose, and the defendant was simply filling in details and applying the criteria set by the Oireachtas.
The Court concluded that this did not amount to an unconstitutional delegation of legislative power. Instead, it was a permissible form of administrative rule-making operating under a clear legislative mandate
Cityview Press v ANCO
Context and Parties: A Romanian national living in Ireland, challenged a deportation order issued by the defendant. The order was made under the Aliens Act 1935 and subsequent regulations (notably the Aliens Order 1946), which granted the Minister broad powers to control and remove non-nationals.
Core Complaint: The applicant argued that the legislation gave the Minister excessively wide and unguided discretion to set the rules governing deportations. This, he claimed, amounted to an unconstitutional delegation of legislative power because it allowed the Minister to effectively make law without clear principles or policies laid down by the Oireachtas.
The Court applied the standard set out in Cityview Press v AnCO, which requires that any delegation of law-making authority to a minister or agency must be guided by discernible “principles and policies” established by the Oireachtas. The legislature must set the framework, and the delegated body may only fill in the details or implement those policies.
Insufficient Legislative Guidance:
The Supreme Court found that the Aliens Act and the related statutory instruments provided no adequate guidance or criteria to direct the Minister’s decision-making on deportation. Unlike in Cityview Press, where the Oireachtas had clearly outlined the aims and principles, here the ministerial power was overly broad and lacked the necessary legislative scaffolding.
Breach of the Separation of Powers:
The Court concluded that granting the Minister such wide latitude, without accompanying legislative principles, effectively transferred essential legislative functions to the Executive branch. This was held to be incompatible with the Constitution’s requirement that law-making power remain principally with the Oireachtas.
Laurenţiu v Minister for Justice
Context: The case concerned the constitutionality of provisions in the Industrial Relations Acts that allowed agreements between employer and employee representative bodies (Registered Employment Agreements, or REAs) to be given binding legal effect on entire sectors once registered by the Labour Court.
Complaint: A group of electrical contractors (McGowan and others) challenged the validity of an REA that set binding pay rates and conditions for all employers and employees in the electrical contracting sector—even those who had not participated in, or consented to, the agreement
Similar to earlier cases (Cityview Press v AnCO, Laurenţiu v Minister for Justice, and John Grace Fried Chicken v Catering JLC), the Supreme Court examined whether the Oireachtas had delegated essential legislative functions without providing sufficient guiding principles and policies.
Private Parties Setting Law:
The REAs were negotiated by private parties (trade unions and employer groups) and then, through registration by the Labour Court, became legally binding on non-consenting third parties. The Supreme Court found this arrangement especially problematic, as it effectively allowed non-legislative, private actors to create binding norms with the force of law.
Constitutional Requirements for Delegation:
The Court reiterated that while the Oireachtas can delegate certain implementation details, it must set out clear legislative frameworks and parameters. By failing to delineate adequate principles and policies, and by enabling private parties to effectively make law, the legislation ran afoul of the separation of powers mandated by the Constitution.
Decision and Outcome:
The Supreme Court declared the system of REAs unconstitutional. It held that empowering the Labour Court to give universal binding effect to privately negotiated agreements, without sufficient statutory guidance, was an impermissible delegation of law-making authority.
McGowan v Labour Court
Context: The case arose out of a challenge to the constitutionality of certain provisions of the Misuse of Drugs Act 1977. Under this Act, the Minister for Health had the power to add substances to the list of controlled drugs by way of regulations, effectively expanding criminal liability without returning to the Oireachtas for fresh legislation.
Plaintiff’s Claim: The plaintiff argued that granting the Minister such broad regulatory powers amounted to an unconstitutional delegation of legislative authority, as it allowed the Minister to effectively “make law” by criminalizing certain substances without adequate guidance from the legislature.
Principles and Policies Test:
The Supreme Court expanded its considerations beyond the principles and policy test, considering:
- What is the law’s purpose and effect?
- What is the historical frame of reference in which it operated?
- What mischief was it set up to remedy?
- Was there a prior act which required repeal and replacement?
- How does the act fit into the overall rule of law?
Assessment of Legislative Framework:
The Court examined the Misuse of Drugs Act to see if the Oireachtas had articulated a clear purpose and criteria. It found that the Act set forth a well-defined objective: protecting public health and safety from the harm of certain substances. It also gave the Minister a structured framework within which to determine which substances should be controlled based on their potential harm.
Difference Between Making Law and Filling in Details:
The Supreme Court distinguished between the essential legislative function of making new law (which must remain with the Oireachtas) and the permissible delegation of authority to fill in technical details or respond to changing circumstances. In this case, the Minister was applying established principles to new substances rather than creating an entirely new legislative policy
Bederev v Ireland
After the High Court upheld the constitutionality of the Sectoral Employment Order (SEO) regime established by the Industrial Relations (Amendment) Act 2015, the plaintiff appealed to the Supreme Court. plaintiff argued that the new statutory framework still amounted to an unconstitutional delegation of legislative power, failing to rectify the deficiencies identified in earlier cases like McGowan v Labour Court.
Comparison with Past Systems:
The Court considered how the updated statutory framework differed from previously invalidated wage-setting mechanisms. The central question was whether these statutory reforms adequately limited the Labour Court’s discretion by establishing measurable and principled criteria for setting employment conditions.
Separation of Powers and Accountability:
The Supreme Court analyzed whether the regime improperly shifted law-making authority away from the Oireachtas to an administrative body. The Court scrutinized the legislative instructions, ensuring they were detailed enough to maintain democratic oversight and prevent the Labour Court from “making law” rather than “applying” it.
Decision and Outcome:
The Supreme Court affirmed the High Court’s decision. It concluded that the reformed legislative framework set out sufficient principles and policies to guide the Labour Court’s actions. The Court found the Oireachtas had achieved a balance: it had not delegated its essential legislative function, but rather entrusted the Labour Court with a role that was properly circumscribed by clear legislative direction.
Náisiúnta Leictreach Contraitheoir Éireann (NECI) v Labour Court
