Separation of Powers

Question 1

Pigs Marketing

Answer 1

‘The Legislature may, it has always been conceded, delegate to subordinate bodies or departments not only the making of administrative rules and regulations, but the power to exercise, within the principles and policies laid down by the legislature, the powers so delegated’

Question 2

Cityview Press

Answer 2

Oireachtas delegated to the defendant body via the Industrial Training Act 1967, the right to impose levies on firms from particular industries in order to finance the training of new recruits for those industries

Held it was a constitutional delegation

Question 3

Harvey v Minister for Social Welfare

Answer 3

2-tier examination of challenges to delegated legislation

1) Ultra vires examination
® Did the body/minister misinterpret their power?

2) If not, was the delegation excessive based on the Cityview Press test and so in breach of Article 15.2

Question 4

McDaid v Sheehy

Answer 4

Only Oireachtas should law-make

Question 5

Laurentiu

Answer 5

Enabled the Minister to ‘exercise, at his absolute and uncontrolled discretion, the power of deporting individual aliens’

unconstitutional

Question 6

Leontjava v DPP

Answer 6

Minster was entitled to enact orders which imposed conditions/restrictions on landing in or entering Saorstat Eireann and ‘other like matters’

Minister was entitled to enact orders which imposed conditions/restrictions on landing or entering

not unconstitutional

Question 7

Bederev v Ireland

Answer 7

Misuse of Drugs Act 1977 vested the Government with powers to declare certain substances to be ‘controlled drugs’

Held there were enough principles and policies in the act

‘the entire enactment…should be read as a whole in order to determine the principles upon which any new drug might be added by the Government to the list’

Question 8

O’Sullivan v Sea Fisheries Protection Authority

Answer 8

It is an error that legislation must be ‘scoured’

Question 9

NECI

Answer 9

Should not be too difficult a task to find the policies

Question 10

John Grace Fried Chicken Ltd

Answer 10

Constitutional action taken against the Catering Joint Labour Committee to set minimum rates of pay and employment conditions for workers in the catering industry

Unconstitutional, effectively overrode primary legislation

Question 11

Collins v Minister for Finance

Answer 11

◊Argued that S6 of the 2008 Act was unconstitutional

Provided that the Minister may provide financial support to credit institutions

Time of crisis allowed the delegated power

Question 12

O’Neill v Minister for Agriculture and Food

Answer 12

If executive want to impose legislation on citizens, there must be some legislation to point to

Question 13

Kavanagh v Government of Ireland

Answer 13

Held that the person challenging exercise of executive power must first prove that there was clear disregard by the Government of the powers and duties conferred on it by the Constitution

Question 14

Sherry v Minister for Education

Answer 14

§ Two key issues concerning challenges to executive power

1) Whether the decision of the Minister as to data to use on the calculated grades process was justiciable under Article 28.2 and

2) Whether there had been a breach of the applicant’s rights to legitimate expectation

Court held that they could not look at the substance, but could look at whether the appointment was legitimate

Question 15

TD v Minister for Education

Answer 15

‘Adopting a policy or programme and deciding to implement it is a core function of the Executive. It is not for the courts to decide policy or to implement it’

Question 16

NP & Burke

Answer 16

SC held a ‘clear disregard’ test was not appropriate where it was alleged that constitutional rights were interfered with by the State

‘Where the ‘clear disregard’ test did not apply the court should “defend the rights of the citizen, in the same way and applying the same standards, as if those rights had been infringed by the actions of the legislative branch of government’

Question 17

Boland v An Taoiseach

Answer 17

Challenge to Sunningdale Agreement

SC held that the agreement was merely an assertion of policy and no formal agreement existed

Question 18

Crotty v An Taoiseach

Answer 18

Although the Government is the sole organ in international relations, they cannot ‘abdicate that freedom’ or enter into a binding agreement to exercise it in a particular way or refrain from exercising it

Question 19

AG v Hamilton

Answer 19

Discussions of cabinet may not be disclosed in court, however decision can be

unless 1) overriding public interest, 2) interests of justice

Question 20

McDonald v Bord na gCon

Answer 20

Five criteria in deciding whether a power is judicial in nature

1) A dispute or controversy as to the existence of legal rights or the imposition of liabilities

2) Determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty

3) Final determination of legal rights

4) Enforcement of those rights
5) Making of an order by the Court

Question 21

Keady v Commissioner Garda Siochana

Answer 21

Garda disciplinary inquiry resulting in dismissal was not the administration of justice as there had been no contest between the parties

Question 22

State (Murray) v McRann

Answer 22

Held that a crime or criminal charge must be defined as offence against the State itself or a public offence

Question 23

AG v Casey

Answer 23

Held that proceedings to recover a penalty under a statute is not a criminal proceeding, but a civil one

Question 24

Melling

Answer 24

features of a crime
1) Offences against the community at large and not against an individual

2) The sanction is punitive, not merely a matter of fiscal reparation

3) They require a mens rea for the act and must be done ‘knowingly’ and ‘with intent to evade prohibition or restriction’

Question 25

Goodman International v Hamilton

Answer 25

Held that the Beef Tribunal did not have authority to impose a criminal punishment

Question 26

Re Solicitors Act, 1954

Answer 26

'if the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as 'limited'

Question 27

M v Medical Council

Answer 27

Under the Medical Practitioners Act 1978, allegations of professional misconduct are investigated by the Fitness to Practice Committee They can erase a practitioner's name from the general register However the practitioner can apply to the High Court to have the decision cancelled The court acknowledged the difference from Re Solicitors Act 1954 due to the option that the practitioner had to apply to the HC

Question 28

Igbinogun v HSE

Answer 28

Held that an investigation by the HSE into alleged child abuse under the Child Care Act 1991 was not an administration of justice as the function was investigative and was concerned with securing the safety of vulnerable children rather than finding of guilt or innocence

Question 29

Buckley v Attorney General

Answer 29

The judicial process inviolable when in operation Concerned who was the correct owner of around £20,000, the remains of a fund built up by the old Sinn Fein organisation in the years before it was fragmented While the action was pending in the High Court, the Oireachtas passed by Sinn Fein Funds Act 1947 'The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiff's claim without any hearing and without forming any opinion' Unconstitutional

Question 30

State (Divito) v Arklow Urban District Council

Answer 30

Divito wished to expand his business and applied to the Arklow Urban District Council for planning permission for a change of use permit to an amusement centre Rejected, however granted by An Bord Pleanala In the meantime, Arklow UDC rescinded its resolution and later re-adopted it but for an area more limited than before which excluded the street where Divito had business Case was neither pending nor seized by the District Court when the resolution was passed, thus this was not an impermissible interference within the judicial sphere

Question 31

Pine Valley v Minister for the Environment

Answer 31

Pine Valley argued that they were effectively excluded from getting the benefit of the retrospective validation of the outline planning permission Court held that the legislature had to write new legislation

Question 32

State (O'Rourke) v Kelly

Answer 32

Housing Act 1966 provided that if certain demands of repossession had been made and the application 'duly made' then the DC must issue a warrant for possession Court held that 'such legislative provisions are within the competence of the Oireachtas

Question 33

Sloan v Special Criminal Court

Answer 33

Suppression orders made by government in respect of any organisation it considers to be unlawful A suppression order 'is conclusive evidence for all purposes' Dismissed, court held that the act simply characterised an organisation as unlawful

Question 34

Costello v DPP

Answer 34

Accused person had been charged by the DC pursuant to a preliminary examination In response, the DPP sought to use s62 Criminal Procedure Act 1967 to direct the accused be sent forward for trial on indictment Held to be an unconstitutional interference by the executive on the judiciary process

Question 35

Deaton v AG

Answer 35

If there is a choice of penalty, choice must be made by courts

Question 36

State (C) v Minister for Justice

Answer 36

® Concerned Lunatic Asylums (Ireland) Act 1875 which authorised the Minister for Justice to order that where a prisoner on remand was certified to be of unsound mind, he was to be detained in a mental hospital until he was certified to have recovered Was then up to the Minster to ensure they were brought back to the Court Court found that the Minster had not overstepped in his boundary to issue an order, however the accused had to be brought back to the District Court

Question 37

Osmanovic v DPP

Answer 37

Customs Consolidation Act 1876 provided that the penalty for breach was a fine or a prison sentence The plaintiff argued that the fine was fixed thus allowed for no judicial determination 'the Oireachtas has power to lay down those parameters'

Question 38

Ellis v Minister for Justice

Answer 38

Finalised that Oireachtas was entitled to fix minimum and maximum sentences and established three principles: i) It is permissible as a matter for the Oireachtas to impose a fixed or mandatory penalty for a particular offence ii) The mandatory penalty must apply to all citizens iii) There must be a relationship between the fixed penalty and the requirements of justice

Question 39

Caffrey v MJLR

Answer 39

Issue of the role of the executive in sentence review Plaintiffs were UK prisoners who were serving life sentences in Ireland Found to be lawfully detained as the executive's powers were merely communication rather than an encroachment of judicial power 'Having taken the benefit of the transfer procedure, the applicants are not at this late stage permitted to turn around and seek to challenge the validity of the management of their life sentences'

Question 40

Cahill

Answer 40

'it is part of the judicial function to determine the nature and extent of the sentence, whenever the general rule laid down by statute or common law gives a range of choice'

Question 41

Murphy v Dublin Corporation

Answer 41

Acknowledged that in certain circumstances where 'greater harm may be caused by ordering rather than refusing disclosure' it could be refused

Question 42

O'Mahoney v Ireland

Answer 42

Claim of privilege was allowed in relation to a Defence force inquiry relating to an incident during Irish/UN activity in Lebanon