Organs of the State Flashcards
Organs of the State
summary
Legislative function (the Oireachtas) Executive function Judicial function
Legislative function (the Oireachtas) summary
- Article 15.1:
- Article 15.2:
- Article 15.4.1:
- Privileges of the Oireacthas:
Executive function
summary
- The executive power of the State is vested
- The only constitutional direction
- Cabinet confidentiality: Article 28.4.3.
- International relations: Article 29.4.2
- Executive privilege:
Judicial function
summary
- Article 34.1:
- Independent judiciary: Kenny v Ireland:
- Article 35.4:
- Interaction with Oireachtas:
- Interaction with the executive:
- Decisions of judicial nature:
- Challenge constitutionality of acts:
Legislative function (the Oireachtas) • Article 15.1:
Oireachtas consists of the president and the 2 houses of parliament (Dail and Seanad).
The Oireachtas supervises the Government’s conduct by granting or withholding its approval and being responsible for the Governments’ continuation in office.
No one organ of the State can have excessive power and therefore the Oireachtas is confined to the functions assigned to it by BnaH.
Legislative function (the Oireachtas) • Article 15.2:
Oireachtas is the superior law making authority and is the sole and exclusive law maker. Only the Oireachtas can make laws for the State. In practical terms, the legislature would not have the time to legislate for every detail, and therefore cts have accepted that it may be necessary to delegate certain limited legislative functions. This is called delegated legislation.
Article 15.2.2
Normally delegated legislation
Re Article 26 and the Health Amendment (No. 2) Bill:
McGowan v Labour Court:
John Grace Fried Chicken HC
Legislative function (the Oireachtas)
Article 15.2.2
allows the law to create and recognise subordinate legislation. The Oireachtas must however prevent an unlawful delegation of legislative power and this is called the Cityview ‘principles and policies’ test. Provided the Oireachtas legislates intra views BnaH, an unqualified discretion rests with it as to the contents of laws. Cts have no role in directing or advising the Oireachtas on how to perform its legislative function.
Previously, in John Grace Fried Chicken
HC decided that the provisions of parts of a similar act were repugnant to BnaH. Thus, given the similarity of both regimes, SC found for the unconstitutionality of the REA. SC noted that Article 15.2.1 was first considered and originally concerned freedom from Westminster rather than with separation of powers (SOP, and examined in Chap 3).
Normally delegated legislation are…
statutory instruments as defined under the Statutory Instruments Act 1947 i.e. an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute. Another form of delegated legislation is the set of financial resolutions proposed by the Minister for Finance following the budget.
Re Article 26 and the Health Amendment (No. 2) Bill:
SC held that power given to the CEO of a health board to remit nursing home charges was not a delegation of legislative power but merely an administrative function. In this case, CEO’s discretion covered certain cases only, and as an administrative power it would not fall foul of Article 15.2.
McGowan v Labour Court:
SC declared the Registered Employment Agreement (REAs) system unconstitutional.
REAs were introduced under the Industrial Relations Act 1946 which allows employment agreements to be registered with the Labour Court (LC), provided that certain criteria are satisfied. Once registered, the agreement becomes legally binding, not only on the parties to the agreement but on every worker and employer in that sector. REAs are normally negotiated between trade unions and employers, who are supposed to be substantially representative of their particular industry.
However, the provision is also “an assertion of a core democratic principle” and is considered a further aspect of SOP as enshrined in Article 6.
Noted that the Oireachtas may
delegate a power to put flesh on the bones of an act; but anything going beyond this will be constitutionally suspect. It was noted here that the LC had no power of consultation or even a power to comment on a proposed REA.
Furthermore, there was no guidance given to the LC on the concept of representatively, there was no obligation on the LC to consider the interests of those who would be bound by the agreement but who were not parties to it and while the agreement was binding on everyone in the sector, it could only be varied on the application of the original parties. Thus, it could not be said that the REA was simply putting flesh on the bones of the original statute. This was more than a mere ‘giving effect to principles and policies contained in the statute itself’, this effectively amounted to law making. A declaration of invalidity was then granted.
Legislative function (the Oireachtas)
• Article 15.4.1:
Oireachtas may not enact legislation which is repugnant to BnaH. This is however at odds with the fact that there is no means of knowing whether a piece of legislation is unconstitutional without testing it under the Article 26 mechanism. Further, Oireachtas must not declare acts to be infringements of law which were not so at the date of their commission (Article 15.5) e.g. liability imposed by new civil and criminal acts cannot act retrospectively.
Legislative function (the Oireachtas)
• Privileges of the Oireacthas: members of the Oireachtas are immune from arrest while going to and coming from the relevant house (Article 15.13). A member is not amenable to ct or other authority for utterances made in any house of the Oireachtas. All official reports are privileged under Article 15.12. Each house has the power to protect its members and documents under Article 15.10.
cases
O'Malley v Ceann Comhairle: Howlin v Morris: Ahern v Mahon: Maguire v Ardagh: Callelly v Moylan: Doherty v Government of Ireland: Kerins v McGuiness: Denis O'Brien:
O’Malley v Ceann Comhairle:
respect for the Oireachtas to manage its own affairs.
Howlin v Morris:
power of privilege resides in the house and not in the members of the house.
Ahern v Mahon:
Bertie Ahern tried to stop by way of judicial review, the examination of statements by him in the Dail and the use of those statements in the Dail as cross examination in the Mahon tribunal. Ct held that contradictory statements would be noted and readers could deuce from those statements what they wanted.
Maguire v Ardagh:
Abbeylara shooting.
Committee set up to investigate the shooting by the Gardai.
SC noted that legislator has inherent powers to investigate matters but had no power to make findings against non-Oireachtas members.
Callelly v Moylan:
senator claiming expenses between Dublin and Cork. Committee under Seanad set up to investigate. Committee sought to suspend him from Seanad. He appealed to SC. Majority of ct felt that there was a presumption that issues affecting constitutional rights are amenable to jr. To show the issue was non-justiciable, the constitutional role of the Oireachtas would have to have been impaired and this was not demonstrated.
Doherty v Government of Ireland:
Government had voted down motions to convene a by-election to fill an empty seat in Donegal following a td being elected to the EP. Government intended to hold election on commencement of proceedings and argued that case was moot. HC said was not moot i.e. an intention is not enough. Ct needed to vindicate the individual right to direct representation. Out of respect for SOP, declaratory relief granted but no order made to Government to remedy the problem.
Kerins v McGuiness:
considered Kerins reign at the helm of Rehab and her investigation by the PAC. She took a case arguing that a fair procedure was not applied, relying on Callelly, ct noted that the right to a good name was not sufficient to displace the constitutional prohibition in Article 15.13. Cts do not recognise a function in relation to freedom of speech in parliament. This is fundamental aim of SOP and is a cornerstone in democracy. They are non-justiciable (Chap 3).
Denis O’Brien:
information regarding him was revealed by TDs in Oireachtas. However they were protected by Article 15.12.
Executive function
• The executive power of the State is vested in the
Government (Article 28.2). Like other organs of the State, the executive must act intra vires BnaH and is controlled by the Oireachtas. Taoiseach is the head of the Government and is appointed on nomination by the president (Article 13).
The Tanaiste, a member of the Government nominated by the Taoiseach will act in their place if they die or become incapacitated or temporarily absent (Article 28.6).
It is constitutionally improper for both the Tanaiste and the Taoiseach to be out of the State at the same time. Article 28.10 notes that a Taoiseach must resign if he loses the support of the majority of the Dail.
Executive function
• The only constitutional direction
given to the Government is that it meets and acts as a collective authority under Article 28.4.2.
The scheme of BnaH is that the Dail, because it is elected by popular franchise has grate prerogative powers.
Article 28.4.1 declares that the Government is responsible for the Dail.
Article 28.10: the Taoiseach and the Government must resign when the Taoiseach ceases to retain support of the majority of the Dail.
Executive function
• Cabinet confidentiality: Article 28.4.3.
AG v Hamilton: cabinet confidentiality was absolute as part of the beef tribunal.
Article 28.4.3 allows HC to waive confidentiality when
i) in the interest of administration of justice
ii) by virtue of the overrising public interest.
Irish Publications v Minister for Enterprise and Employment: adopted position from AG v Hamilton.
Beades v Ireland: applicant challenged decision of government to appoint president of HC. This case was dismissed as ct has no jurisdiction to remove a judge from office. This was a decision of cabinet, which is protected by cabinet confidentiality.
Executive function
• International relations:
Article 29.4.2 the executive power in the State in connection with external relations shall be exercised by or on authority of the Government.
cases….
Crotty v An Taoiseach Pringle v Ireland Kavanagh v Govenor of Mountjoy: Horgan v An Taoiseach: Hutchinson v Minister for Justice:
Crotty v An Taoiseach:
SC held that executive function in the context of foreign affairs was non delegable but not unfettered and open to judicial review. In that case, found that Ireland could not ratify the Single European Act unless BnaH was first changed to permit its ratification. This case established that significant changes to EU treaties required amendment to BnaH by a referendum.
Crotty now needs to be read in light of Pringle v Ireland.
Crotty now needs to be read in light of Pringle v Ireland.
SC in Pringle noted that the Government enjoys a wide discretion under Article 29.4 to enter into international treaties subject only to the obligation to obtain the approval of the Dail, or that of the Oireachtas.
SC noted that the limit on the discretion which the government holds arises where the relevant treaty involves Ireland in committing itself to undefined policies not specified in the treaty.
Kavanagh v Governor of Mountjoy:
applicant claimed legitimate expectation that State would respect UN covenant under Article 29 i.e. general and recognised principles of international law.
