Separation of Powers Flashcards
Non-Delegation Doctrine
Art 15.2.1
vests the sole and exclusive power to legislate in the Oireachtas
Non-Delegation Doctrine
Art 15.2.2
recognizes legal provisions may be made for subordinate legislatures e.g. a Minister.
a. The ‘Principles and Policies’ Test: Cityview Press
Cityview Press v An Comhairle Oiluna (Anco) [1980]
- Anco was established by the Industrial Training Act 1967 to make better provisions for industry employee training. It could designate certain activities as ‘DAs’ which allowed them to impose a levy on employers in that industry. CP argued it was unconstitutional for Anco to impose it.
- SC TEST: whether the action is more than a mere giving effect to principles and policies which are contained in the statute. If it is, then it’s not authorized.
- But if the law is laid down in the statute and only details are filled in or completed by the Minister or subordinate body, then there is no unauthorised delegation of legislative power.
- Decision: The Act contains clear declarations of policies and establishes machinery to carry them out. S.21 provides for a levy to be implemented and the obligation to pay it. Anco merely decide the levy amount. This is no more than adding a final detail. No unauthorised delegation.
i. The Act gave no indication of what the calculation was to be based on. Was this a mere detail or a matter of principle that should have been laid down in the Act?
ii. The Court was influenced by the fact that the legislature could still annul any levies imposed i.e. Anco had to place a proposed levy before the the Oireachtas for its approval.
a. The ‘Principles and Policies’ Test: Cityview Press
Cooke v Walsh [1984]
- A ministerial regulation denied C entitlement to free health care as it provided that where such costs related to road accidents and were recoverable through compensation, it was not available.
- S.72(2) Health Act 1970 empowered the Minister to make regulations ‘for any service under this Act being made available only to a particular class of people who’ve eligibility for that service’.
- The SC held if the section was to be interpreted as allowing the Minister to amend primary legislation, it would be unconstitutional. Therefore, it must be presumed Oireachtas only intended to confer on the Minister powers of giving effect to principles and policies in the Act.
- The minister was deemed to have acted ultra vires, but the constitutionality of s.72(2) was upheld.
a. The ‘Principles and Policies’ Test: Cityview Press
Harvey v Minister for Social Welfare [1990]
- S.52 and s.75 of the SW Act empowered the Minister to make regulations regarding the provision of entitlements including the adjustment of “any benefit, pension allowance or assistance”.
- M enacted the SW (Overlapping Benefits) Regulations 1979: a woman on a disability pension would have to forgo the pension when she reached pensionable age: ‘one pension’ principle.
- Held Oireachtas clearly intended M to exercise his powers in a constitutional manner. The Minister had acted unconstitutionally i.e. ultra vires.
a. The ‘Principles and Policies’ Test: Cityview Press
McDaid v Sheehy [1991]
- S.1 Imposition of Duties Act 1957 gave the gov power to impose, vary or end any excise, customs or stamp duty (near total power). No principles or policies in it to guide how this should be done.
- Blayney J held the power given to the Gov was to legislate, not merely to fill in details. There were no principles or policies in the act. Blayney J thus found s.1 to be unconstitutional.
- However, later legislation (s.46 Finance Act) had been passed to validate all the secondary legislation and instruments passed under s.1 (thus M was not convicted under s.1)
- Thus, SC held it was inappropriate to consider the validity of s.1 and overturned B J’s decision.
b. The Aliens Act 1935
Laurentiu v Minister for Justice [1999
After several unsuccessful attempts invoking the principles and policies test, this was the first case the SC held a legislative provision unconstitutional for non-compliance with Article 15.2.1
- S.5(1)(e) allowed the Minister to make provision for the exclusion or deportation of aliens.
- Denham J stressed the absence of principles and policies in this section for M to follow.
was making policy rather than merely giving effect to P&Ps (none). Held unconstitutional.
b. The Aliens Act 1935
Leontjava and Chang v DPP [2004]
- Art.15 Aliens Order 1946 provides that an alien must produce a passport/certificate on demand.
- Ps were charged under Art.15 (and others) Aliens Order, which was made under s.5(1)(h) of the Aliens Act 1935. S.5(1)(h) empowered the Minister to make orders requiring aliens to comply with conditions re registration, change of abode, travelling, work and other like matters.
- They argued s.5(1)(h) violated Art.15.2 and the HC agreed: it did not list P&Ps for the Minister to follow, instead it simply gave him the power to determine such P&Ps.
- SC overturned: Held Art.15 AO was intra vires the AA 1935: s.5(1)(h) it did not expressly authorize the production of such documents, but the phrase ‘other like matters’ would extend to it
- Was s.5(1)(h) AA unconstitutional and ultra vires Art.15.2? SC held it was not and referred to the Cityview P&Ps test: the policy enunciated in the Act was plain: the desire to regulate registration, travelling, employment, etc. of aliens while in the state and the desirability of regulating other like matters. It’s “entirely appropriate” for the legislature to specify matters which it considered required regulation, while leaving it to the Minister to put in place specific regulatory provisions.
- It also upheld the constitutionality of s.2 of the Immigration Act 1999 holding that the legislature was entitled to retrospectively validate statutory instruments this way.
Note: Critics say the SC made the false inference of concluding the primary legislation dealt with all matters of principle and policy simply because the legislation dealt with some matters of P&P.
c. The Misuse of Drugs Act 1977
Bederev v Ireland [2016] COA
Bederev v Ireland [2016]
- S.2(2) Misuse of Drugs Act 1977 vested the gov with powers to declare certain substances to be ‘controlled drugs’. It listed 2 ways in which a substance could be define as a CD and thus banned
- The schedule of the Act listed the designated controlled drugs and s.2(2) allowed the gov to make an order adding to the schedule i.e. it delegated legislative power to the gov to change the parent Act by adding whatever substances they wanted to the CD list by an order.
- B argued this was a clear breach of the principles and policies test.
(a) Court of Appeal
- Hogan J held the act did not contain sufficient principles and policies to guide the power.
- Gov argued they had to follow the definition of ‘controlled drugs’ in s.2(1), but Hogan J pointed out the very definition of ‘controlled drugs’ in s.2(1) is expressly premised on the basis of alternatives i.e. either it is in the schedule or it has been declared as a CD by a gov order.
- Held the section was written to allow the widest possible power and discretion for the gov to ban other new drugs which might be v different to those specified in the schedule.
- Gov then argued the long title of the Act provided guidance, as it had the effect that any drug banned by the Gov under s.2(2) must be ‘dangerous or harmful’.
- Hogan J said this left important policy judgments to be made by Gov rather than Oireachtas and that almost all drugs are potentially dangerous. Insufficient principles and policies in the long title
c. The Misuse of Drugs Act 1977
Bederev v Ireland [2016] SC
- Overturned CA: Held CA erred in not considering the Schedule and its important use in determining the nature and extent of the delegation made by Oireachtas to the Minister.
(1) Held the schedule was crucial: to strip it away from the legislation was to render the enactment meaningless and would be contrary to the Oireachtas’ will as expressed in the Act
(2) No broad discretion as claimed by the CA: There is a firm basis for the gov only making an order by reference to the categories of drugs already listed in the schedule.
(3) Evidence from a Department of Health pharmacist showed any person objectively looking at the drugs on the schedule by extension would know what would also be a controlled drug.
(4) Oireachtas review: Held the fact that the Act required any statutory instruments made under the Act be scrutinized by the Oireachtas showed a plain intention to control the delegated power. This comforted the SC as the Oireachtas had the last say!! (like Cityview)
(5) Held it’s clear that the entire enactment, as to the preamble, the sections and the schedule setting out the drugs then controlled, should be read as a whole in order to determine the principles on which a new drug may be added by gov to the list and boundaries of the power
(6) Central to the guidance given to the Gov by the Act is the schedule of drugs appended to it
NB:
i. The Schedule provided sufficient guidance (P&Ps) as to what new drugs were to be included.
ii. The Oireachtas controlled the delegated power by reviewing all proposed new CDs!
John Grace Fried Chicken Ltd v Catering Joint Labour Committee [2011]
- CJLC is a body established under the IR Act 1946 and the Catering JLC Establishment Order ‘77
- It formulates proposals for pay and conditions of workers in the catering industry.
- JLC proposals are submitted to the Labour Court and if approved an Employment Regulation Order (ERO) which legally binds employers to wage rates and conditions of employment.
- QSFA had already put a statutory national min wage in place under the Min Wage Act 00 and fair Sun premiums under OWT Act 97 i.e. we already had these provided for by domestic legislation
- Argued that CJLC and LC had fixed min wages in excess of the national statutory min and set conditions more favourable than those in the employment legislation enacted by the Oireachtas.
- Sought a declaration that certain sections of the IR Acts 1946 – 1990 were unconstitutional on basis they breached the non-delegation doctrine.
- P&P Test: Held the power to make EROs is a fundamental one and there was no guidance as to principle or policy provided in the legislation. Thus, the delegation was unconstitutional.
- Held the determination of rates was done arbitrarily and illegally, in breach of Ps property rights
- Held there was no identifiable basis for discrimination (shops right beside each other may have to adhere to different terms simply bc one shop’s employees are unionized and one’s are not).
McGowan v Labour Court [2013]
- Challenge to Registered Employment Agreements (REAs): Part III IR Act 1946 allows REAs be registered with the LC; once done, it becomes legally binding on all employers and workers (not just parties to agr) in the sector. If an employer fails to comply, he can be criminally prosecuted.
- M were electrical contractors who sought to have the Elec Contracting REA cancelled at the LC
- LC refused. Appealed to HC. HC rejected mainly due to delay (19 years). Appealed to SC.
- M argued Pt III was in breach of Art.15.2.1 as REAs amounted to the LC making laws.
- SC analyzed the REAs powers: they can make provision for not just pay, but any matter that is regulated by an employment contract e.g. pensions, hours of work, discipline procedures, etc.
- Noted REAs are made by private persons (employers & employees). The LC had no involvement except for registering it yet breaching it could lead to criminal prosecution.
- The Oireachtas also had no involvement in their creation nor any power to review REAs.
- P&P Test: SC held Pt III’s process was not merely giving effect to P&Ps in a statute established by Oireachtas, nor did Oireachtas have any power of review. PT III declared unconstitutional.
d. Delegation of Administrative Functions
Re Art 26 and Health (No.2) Amendment Bill 2004 [2005]:
Issues only arise where the delegated power is something beyond administrative in nature: Bill envisaged delegating the power of waiving hospital charges in cases of hardship to the CEO of the HSE. Simply administrative.
e. Retrospective Legislation
Art.15.5
Oir shall not declare acts infringements of law which weren’t at time of their commission
e. Retrospective Legislation
McKee v Culligan [1992]:
Held Art.15.5 did not contain, nor was it to be implied as containing any general prohibition on the retrospection of legislation. Not unconstitutional if it is justifiable.
e. Retrospective Legislation
Dublin City Council v Fennel [2005]:
Statute doesnt operate retro unless a contrary intention appears
f. EU Aspect
Meagher v Minister for Agriculture [1994]
- Position: where the EU legislation contains sufficient principles and policies such that the Minister is implementing the same, no primary legislation is needed.
- But if there are no sufficient P&Ps at the EU level, secondary legislation is insufficient.
2. The Executive Power
Art.29.4 & Art.38.3
Art.29.4 the power of State re international relations and foreign affairs is exercised by Government.
Art.38.3 allows special courts to be set up like the Special Criminal Court.
