Separation of Powers Flashcards
Where in the constitution does it express reference to the separation of powers?
The Constitution itself does not contain express reference to the separation of powers. Article 6.1 does, however, indicate that there are three distinct powers - legislative, executive and judicial.
what is the legislative branch?
The legislature is the Oireachtas which is responsible for making laws or ‘legislating’.
Article 15.2.1 states that The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no
other legislative authority has power to make laws for the State.
what is the executive branch?
The executive is the Government (or the cabinet) which carries out or ‘executes’ those laws written by the legislature
Article 28.2 states that the executive power is to be exercised by or on the authority of the government.
Art 29.4.2 states that the executive power of the State in connection with its external relations shall be exercised by or on the authority of the Government.
what is the judicial branch?
The judiciary consists of appointed Judges who administer and apply the law in Courts..
No one other than a judge may determine the results of legal disputes or impose legal liabilities or penalties on litigants or accused persons.
what is the concept of justiciability?
This is the doctrine whereby the Courts will not interfere with matters which are properly the function of either the executive or the legislature.
how are the powers of the state divided?
- A “legislature” which performs the law-making power (in ireland this power is exercised by Parliament, or, as it is better known, the Oireachtas);
- An “executive” or the Government
- A “judiciary”, that is judges administering justice in the court of law
why is the separation of powers in Ireland said to be flawed ?
The executive branch is effectively a sub-set of the oireachtas. The government party or parties will normally command a majority in the Dail and the seanad
what is the Non-delegation Doctrine?
Non-delegation Doctrine is that law making cannot be delegated from the Oireachtas.
Article 15.2.1 provides as follows: The sole and exclusive power of making laws for the state is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the state.
what is the test for assessing whether the Oirechtas has delegated law making power unlawfully?
The test for assessing whether the Oirechtas has delegated law making power unlawfully is the policies and principles test as established by the Supreme court in Cityview press v Anco.
Ultra Vires
If the courts find that performance of a particular act by a minister is unconstitutional, the court can deal with it in one of two ways.
First the court can declare the Act which granted the power to be unconstitutional
The court can uphold the constitutionality of the act, but declare that the Minister has acted Ultra vires or in other words has taken power which the act didn’t confer on him. That way the fault is found with the minister and not the Oireachtas.
where possible, the Courts incline to take the later approach
Eu dimension
Section 3 of the European communities Act 1972 allows for the implementation of the EU law by statutory instrument.
This would be an obvious breach of the non-delegation doctrine were it not for article 29.4 of the Constitution which provides, in essence, that the Constitution shall not invalidate laws necessitated by our membership of the EU.
The minister is authorised to implement EU law by section 3; however, he is not authorised to go beyond that and create further law
Can the legislature delegate its law making functions ?
- The definitive test was laid down in Cityview Press v Anco , where O’Higgins CJ said, in order for a delegation by the legislature of its law making functions to comply with Article 15, it must be no more than merely giving effect to principles and policies contained in the statute.
- In Harvey v Minister for Social Welfare [1990], the Supreme Court added to the “principles and policies” test the principle that the Oireachtas may not delegate the power to make, amend or repeal legislation.
- In McDaid v Sheehy, the validity of a statute which allowed the Government wide powers in imposing, varying, or terminating certain taxes by order was deemed invalid by the Supreme Court, which stated the statute gave the Government “a power to legislate”.
- In Laurentiu v Minister for Justice [1999] the Supreme Court held unconstitutional a legislative provision which purported to give the minister powers in relation to deportation without any principles or policies being set out in the parent Act.
what does it mean when something is justiciable vrs non justiciable
To be justiciable, a constitutional claim must not be a purely political question and the courts decision on the issue must not be subject to extra judicial review. If something is non justiciable it means it is not capable of being decided by legal principles or by a court. This is a prominent consideration in relation to international relations and referendum law.
what is the separation of powers?
Art 15.2.1 invests the Oireachtas with law making power; Arts 28.2 and 29.4.1 invest the executive with power, including power over foreign relations; Arts 34.1 and 37 invest the judicial power in the courts. There have been a considerable number of cases however which demonstrates that it has not always been clear where the lines should be drawn as to where one branch of government begins and another ends. It
what are the facts of the recent case John Grace Fried Chicken Ltd (2011)
The High Court recently considered the limits of delegated legislation and the principles and policies test in; John Grace Fried Chicken Ltd (2011).
This case concerned the constitutionality of provisions of the Industrial Relations Act 1946 which permitted the Labour Court to establish Joint Labour Committees which in turn could make proposals in relation to minimum terms and conditions of employment, including rates of pay, in certain sectors of the labour market.
The court concluded that the system did amount to a breach of Article 15.2.1 in that while Article 15.2.2 allows the delegation of legislative powers within the bounds of the principles and policies set down in the parent act, no such principles and policies were to be found.
