Separation of Powers Flashcards
Pigs Marketing
‘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’
Cityview Press
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
Harvey v Minister for Social Welfare
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
McDaid v Sheehy
Only Oireachtas should law-make
Laurentiu
Enabled the Minister to ‘exercise, at his absolute and uncontrolled discretion, the power of deporting individual aliens’
unconstitutional
Leontjava v DPP
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
Bederev v Ireland
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’
O’Sullivan v Sea Fisheries Protection Authority
It is an error that legislation must be ‘scoured’
NECI
Should not be too difficult a task to find the policies
John Grace Fried Chicken Ltd
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
Collins v Minister for Finance
◊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
O’Neill v Minister for Agriculture and Food
If executive want to impose legislation on citizens, there must be some legislation to point to
Kavanagh v Government of Ireland
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
Sherry v Minister for Education
§ 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
TD v Minister for Education
‘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’
NP & Burke
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’
Boland v An Taoiseach
Challenge to Sunningdale Agreement
SC held that the agreement was merely an assertion of policy and no formal agreement existed
Crotty v An Taoiseach
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
AG v Hamilton
Discussions of cabinet may not be disclosed in court, however decision can be
unless 1) overriding public interest, 2) interests of justice
McDonald v Bord na gCon
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
Keady v Commissioner Garda Siochana
Garda disciplinary inquiry resulting in dismissal was not the administration of justice as there had been no contest between the parties
State (Murray) v McRann
Held that a crime or criminal charge must be defined as offence against the State itself or a public offence
AG v Casey
Held that proceedings to recover a penalty under a statute is not a criminal proceeding, but a civil one
Melling
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’
Goodman International v Hamilton
Held that the Beef Tribunal did not have authority to impose a criminal punishment
Re Solicitors Act, 1954
‘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’
M v Medical Council
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
Igbinogun v HSE
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
Buckley v Attorney General
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
State (Divito) v Arklow Urban District Council
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
Pine Valley v Minister for the Environment
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
State (O’Rourke) v Kelly
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
Sloan v Special Criminal Court
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
Costello v DPP
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
Deaton v AG
If there is a choice of penalty, choice must be made by courts
State (C) v Minister for Justice
® 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
Osmanovic v DPP
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’
Ellis v Minister for Justice
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
Caffrey v MJLR
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’
Cahill
‘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’
Murphy v Dublin Corporation
Acknowledged that in certain circumstances where ‘greater harm may be caused by ordering rather than refusing disclosure’ it could be refused
O’Mahoney v Ireland
Claim of privilege was allowed in relation to a Defence force inquiry relating to an incident during Irish/UN activity in Lebanon
