delegation of powers Flashcards
(19 cards)
1
Q
The composure of the legislature
A
- The Oireachtas – Art 15
o Art 15.1 – the Oireachtas is to consist of two Houses of Chambers:
The Lower House – Dail Eireann
The Upper House – the Senate – Seanad Eireann
The President is a part of the Parliament and signs the legislation for it to become law - Dail Eireann – Art 16 (elected every 5 years)
- Seanad Eireann – Articles 18-19
2
Q
Delegated legislation
A
- While the Oireachtas passes primary legislation, it may delegate authority to make minor regulations, known as delegated or secondary legislation, typically government ministers.
- These regulations address technical details and allow laws to be implemented more efficiently without going through the full legislative process.
- This practice must respect the Separation of Powers under Article 15.1 of the Constitution, which vests law-making power solely in the Oireachtas. The Executive cannot create law directly and must rely on delegated authority granted by legislation. This division is illustrated in cases such as McDaid v Sheehy.
3
Q
why do we need it
A
- Pigs Marketing Board v Donnelly – the Oireachtas delegated powers to a special Board to set bacon prices. The Court rejected the argument that this delegation involved a legislative power. It recognised that the complexity of modern governance necessitated the use of subordinate bodies such as boards and commissions. Price fixing was considered a technical matter, which the Legislature was entitled to entrust to an expert body.
o Persons or bodies exercising such powers do not make law themselves but act under authority granted by primary legislation to create minor secondary legislation.
o The Legislature may delegate power to subordinate bodies to implement laws within defined principles. These bodies are not lawmakers but execute the will of the Oireachtas, bringing about the results directed by government, not their own views.
4
Q
types of delegated legislation
A
- Delegated legislation can take several forms:
o Executive subordinate legislation: Empowers the Government as a whole to act, e.g. activating Part V of the Offences Against the State Act 1939 to establish the Special Criminal Court.
o Bye-laws: Made by local authorities under enabling acts like the Municipal Corporation (Ireland) Act 1840.
o Statutory Instruments (SIs): The most common form, made by Ministers (e.g. “S.I. 247/2006”) in the form of regulations.
o Rules of Court: Created by the Superior Court Rules Committee to regulate court procedures.
o Rules by professional bodies: Certain statutes, like the Solicitors Act 1954, allow bodies like the Law Society to regulate their members’ conduct.
5
Q
Control of secondary legislation
A
- Art 15.1 – the Oireachtas have the sole power to legislate, not the executive or the Minister
- Two issues must be considered:
1. Did the Oireachtas have the right under Art 15.2 to delegate the particular power – non-delegation principle)
2. If they did, did the body/minister act ultra vires? - Brian Foley – if legislation grants excessive law-making power to the executive or others, it may be unconstitutional and struck down. The issue lies with the legislation itself, not how the power is used.
o However, if validly granted powers are exceeded in practice, the resulting regulations or secondary legislation are considered ultra vires.
6
Q
What are the controls - Parliamentary control
A
- The Oireachtas, which grants the power, can withdraw it at any time.
- Ministers are accountable to the Oireachtas for their departments’ use of delegated powers.
- A Joint Committee of the Dáil and Seanad monitors delegated legislation and highlights any controversial measures.
- The Statutory Instruments Act 1947 sets procedural rules, requiring delegated legislation to be published in Iris Oifigiúil and circulated to designated libraries.
7
Q
Judicial control
A
- However, the courts may strike down legislation if it grants excessive power to a Minister, effectively undermining the authority of the Oireachtas. Alternatively, even where the delegation of power is valid, if the Minister exceeds the limits of that power, the resulting action or regulation will be struck down as ultra vires.
8
Q
the test
A
- Cityview Press Ltd v An Chomhairle Oiluina – the test – the applicant challenged the Industrial Training Act as an unconstitutional delegation of legislative power, as it allowed the defendant body to impose levies on firms without specifying how they should be calculated or setting any upper limit.
o SC – O’Higgins CJ – “The test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute”.
o Held – no unconstitutional delegation. The Act set out general principles and policies; the levy-setting was considered merely adding detail to those.
o Delegated legislation is valid if it only gives effect to clearly stated principles and policies in the parent Act.
o David Gwynn Morgan: Argues that the Act lacked clear guidance on how the levy should be fixed.
o Prof. Casey: Warns that if legislation this vague is acceptable, the threshold for permissible delegation is dangerously low.
9
Q
Delegation and ultra vires principle - PI road accident case
A
- Cooke v Walsh - O’Higgins CJ – A child injured in a road accident would normally qualify for free medical care under s.45 of the Health Act 1970. However, a regulation made by the Minister under s.72 excluded road accident victims entitled to compensation from receiving this care, requiring them to use their compensation to cover medical costs.
o SC – the Court held that if s.72 allowed the Minister to alter core legal entitlements like those in s.45, it would constitute an unconstitutional delegation of legislative power, violating Article 15.2.
o However, applying the presumption of constitutionality (or “double construction rule”), O’Higgins CJ interpreted s.72 narrowly, only allowing regulations on minor procedural matters, NOT fundamental changes to legal entitlements.
o Therefore, s.72 was upheld as constitutional, but the specific regulation made by the Minister was found to be ultra vires and was struck down.
10
Q
welfare case
A
- Harvey v Minister for Social Welfare – The applicant challenged the constitutionality of s.75 of the Social Welfare Act 1952, which allowed the Minister to make regulations that could amend existing laws. The Minister had made regulations withdrawing certain welfare payments the applicant was entitled to under previous Acts.
o SC – the Court rejected the argument that s.75 involved an unconstitutional delegation of legislative power. It interpreted s.75 in a way that did not permit the Minister to amend substantive law.
o However, as s.75 did not allow the Minister to alter existing law, the Court found that the Minister’s regulations exceeded the power given to him, ultra vires, and struck down the regulation.
11
Q
kelly commentary
A
- Kelly –
1. The Principles and Policies of General Act criteria (Minister cannot go beyond these in his/her Regulation);
2. The principle that the Oireachtas cannot delegate the power to make, repeal or amend Law.
12
Q
imposition of duties case
A
- McDaid v Sheehy – legislature breaches delegation of power – the applicant challenged the constitutionality of s.1 of the Imposition of Duties Act 1957, which allowed the Government to impose, vary, or terminate excise, customs, or stamp duties by order
o HC – Blayney J found that s.1 of the Act was inconsistent with Article 15.2.1 due to its broad scope and lack of clear principles or policies in the Act itself.
o The judge concluded that the power given to the Government was essentially legislative in nature, not a mere filling in of details. The Government was given the authority to determine which goods should be subject to excise or customs duties, which was a form of lawmaking.
13
Q
immigration case
A
- Lareuintiu v Minister for Justice – the applicant challenged s.5 of the Aliens Act 1935, which allowed the Minister for Justice to make regulations for the exclusion or deportation of “aliens”.
o SC – the Court found that the Oireachtas had not itself legislated for deportation at all, it had instead given the Minister power to create deportation rules from scratch.
o Denham J – there were no “principles and policies” in the Act concerning deportation, so the Cityview test was not met.
o Keane J – the Oireachtas had essentially abdicated its law-making role, deciding that the Minister should formulate policy in this entire area.
o Barrington J – legislation must provide standards or guidelines to control executive discretion, the Minister should only be filling in details, not making law from the ground up.
o The delegation was unconstitutional under Article 15.2 because the Act failed to lay down any clear principles or policies. The deportation provisions were struck down.
14
Q
immigration case about leaving after a certain period
A
- DPP v Leontjava [2004] – the applicants challenged the constitutionality of Articles 5(6) and 15(1) of the Aliens Order 1946, a Ministerial regulation made under the Aliens Act 1935.
o Art 5(6): Allowed immigration officers to require non-citizens (“aliens”) to leave the State after a certain period. Art 15(1): Set out the documentation that aliens must have when requested.
o SC – Article 5(6): Found to be ultra vires. The Court held that the original Act (s.5(1)(b)) did not grant power to the Minister to impose time limits for stay or to delegate such authority to immigration officers. This was an overreach, not merely implementing existing law but creating new legal obligations without Oireachtas authorisation.
o Article 15(1) – Upheld as valid delegated legislation. It was within the scope of s.5(1)(h) of the Act and merely involved detailed implementation of the existing statutory framework, consistent with the Cityview test.
15
Q
national monument case
A
- Mulcreevy v Minister for Environment [2004] – a challenge was brought against a ministerial regulation made under a 1994 General Act, which changed the process for permitting the destruction of national monuments. Previously, consent from three separate state bodies was required.
o New Regulation – only the Minister and local authority needed to give consent.
o Supreme Court – Two-Part Test:
1. Was the General Act constitutional in how it delegated power?
No – The Court held that the 1994 Act gave the Minister excessively broad power without proper guidelines or limits, violating Article 15.2.
2. Did the Minister’s regulation exceed his power under that Act?
Yes – the regulation effectively repealed and replaced the prior legal framework, amounting to law-making, not just implementation.
o The delegation was unconstitutional, and the regulation was ultra vires.
o The Minister had exceeded his authority by making substantive changes to the law, not merely administering or applying existing law. - BUPA Ireland Ltd v Health Insurance Authority [2005] – a risk equalisation scheme under s.12 of the Health Insurance Act 1994, requiring insurers like BUPA (with younger, healthier members) to transfer funds to VHI (with older, riskier members). BUPA challenged the constitutionality of this scheme, claiming it involved an unlawful delegation of legislative power to the Minister, contrary to Article 15.2 of the Constitution.
o HC – Delegation of powers to Ministers is permissible under the Constitution if sufficient principles and policies are set out in the parent legislation. This reflects the balance between the Oireachtas’s exclusive legislative role (Art 15) and the Executive’s role (Art 28).
o When assessing Article 15 issues, courts must consider the practical reality of the subject matter and the most suitable method of implementation. If the issue is complex, technical, or part of an evolving model, delegation to a subordinate body may be appropriate or even necessary.
o However, if the subject is straightforward and clearly defined, delegation may not be justified. Each case must be assessed within the statutory framework and the guiding principles and policies set by the legislature.
o In this case, the Court found that the 1994 Act did provide sufficient guidance, and the Minister acted within the limits of that Act. Therefore, the regulation did not amount to new law and did not breach Article 15.2.
o Supreme Court later overturned the decision on technical grounds, without deciding the Article 15 issue.
16
Q
nursing home changes case
A
- re Article 26 and the Health (Amendment) (No. 2) Bill 2004 [2005] – the SC reviewed the constitutionality of a Bill aiming to retrospectively legalise previously unlawful nursing home charges. Two Article 15.2 issues were raised:
1. The Bill was said to delegate too much power to the Minister without sufficient guidance.
2. It allegedly failed to define when Health Board CEOs could reduce or waive charges due to hardship.
o The Court rejected both arguments. It found that the Minister’s role was merely implementing the Bill’s stated principles and policies, so the delegation was constitutional.
o The CEOs’ discretion was administrative (not legislative) and thus reviewable by judicial review, not Article 15.2.
o The Bill was ultimately struck down for other, unrelated constitutional reasons.
17
Q
principles and policies test
A
- John Grace Fried Chicken v Catering JLC – challenge to Joint Labour Committee (JLC) system of setting wages for lower paid workers – operated under the Industrial Relations Act 1946.
o Feeney J distilled what he felt was the essence of the relevant case law on how a court should approach Article 15, delegated legislation, and in particular the principles and policies test.
1. A balance must be struck between the exclusive law-making authority of the Oireachtas and the necessity of legislative delegation for detailed matters.
2. The judiciary must intervene where there is an ultra vires delegation, ensuring a remedy for affected parties.
3. The Principles and Policies test is inherently flexible and adaptable to the complexity of the legislation.
4. The court must consider whether the legislation is technical or complex.
5. The court must first ascertain the principles and policies set forth by the Oireachtas in the statute.
6. The purpose underlying the legislation is a significant factor in applying the test.
7. Where principles and policies are clear, a delegated body may fill in details and make decisions within those boundaries without exceeding its powers.
8. The court must consider the full statute, not just the challenged section, and identify the policies within it.
9. The retention of supervisory powers by the Oireachtas strengthens the constitutionality of delegation.
10. The potential criminal consequences of an order by a delegated body are relevant in the analysis.
11. The court must determine whether the delegated body’s actions concern fundamental matters, as defined by the Act.
12. : The court must ascertain whether standards, goals, or purposes are identifiable within the statutory framework.
13. The court must verify that the principles, goals, and factors relied upon by the defendant are rooted in the legislation.
14. The absence of specific detail does not invalidate delegation if the principles and purposes are sufficiently defined.
15. Where the principles and policies are satisfied, the court shall not interfere with the decisions made by the delegated body.
16. Administrative bodies may exercise expert judgment within the scope of delegated authority, guided by specified principles and policies.
17. If a regulation is no longer applicable, the court should refrain from adjudicating unless the actions taken during its effect remain relevant.
o The High Court found that the JLC wage-setting scheme amounted to a transfer, not a delegation, of legislative power.
o Feeney J held that the Industrial Relations Act 1946 lacked any guiding principles or policies, effectively allowing the Labour Court and JLCs to make law without direction.
o As the legislation was silent on how these bodies were to exercise their functions, the relevant provisions were declared unconstitutional.
18
Q
Delegated Legislation v Admin Arrengments
A
- There are cases where ministerial actions are deemed by the courts to be purely administrative in nature, not legislative. In such instances, the Minister is considered to be making “administrative arrangements”, not exercising delegated legislative power.
- These actions fall within the scope of executive power, and therefore do not require review under Article 15.2, as they are not considered an exercise of legislative authority.
- Whether an act is administrative or legislative is ultimately a question for the courts.
19
Q
admin cases
A
- Casey v Minister for Arts, Heritage, Gaeltacht and the Islands [2004] – the Supreme Court held that the Minister’s introduction of a permit system for access to the Skellig Islands fell within the scope of her executive power under the National Monuments Act.
o The Court found no breach of Article 15.2, as the measure was deemed administrative, not legislative. The preservation of national monuments was characterised as a matter of policy implementation, not law-making. - Dunne v Minister for the Environment [2006] – this case concerned the Carrickmines Castle site and whether s.8 of the National Monuments (Amendment) Act 2004, which allowed the Minister to direct roadworks there, violated Article 15.2 by delegating legislative power.
- The SC rejected the challenge, holding that the section did not involve delegated legislation, but rather an administrative discretion. Such directions were executive decisions, subject to administrative law, not the constitutional limits on law-making.
