Separation of Powers

Is the rule of law complete without the separation of powers?

What are the “powers” we are talking about?

Why separate powers?

Montesquieu – rigid theory – see page 15

Untenable in Ireland now…

Why?

Article 6.1

All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

Article 15.2.1

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.

Article 35.2

All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.

What else?

Article 28

1° The Government shall be responsible to Dáil Éireann.

2° The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.

10.                       The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless on his advice the President dissolves Dáil Éireann and on the

reassembly of Dáil Éireann after the dissolution the Taoiseach secures the support of a majority in Dáil Éireann.

The Biggest Breach of All! – JUDICIAL REVIEW!!!!

Why is a perfect separation of powers not a good idea?

Crotty v An Taoiseach (pp16-17)

Case Studies – guarding the Judicial Power

Buckley v Attorney General

Executive Privilege

Murphy v Dublin Corporation

Ambiorix v Minister for the Environment

Lesson 4 – Delegated Legislation 1

What is it?

Statutory Instrument Act, 1947

Any order, regulation, rule, scheme or bye-law

Article 15.2

1° 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.

2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

Delegated Legislation – Issues

Democracy?

Efficiency?

Pigs Marketing Board CasePrice fix for pigs – by SIExplanations for system

Cityview Press v Anco

Ind. Tr. Act, 1967 – levyPrinciples and policies test

What kinds of things does this exclude?- amending legislation?- Wide ranging powers

Presumption of constitutionality – difficult issue

Cook v Walsh

Child, injured in a road accident would have been entitled to free health care per s.45 of the Health Act, 1970 as a “fully eligible person”.

However, in an attempt to push the costs of health care in relation to road traffic accidents onto those were responsible for such accidents, the Minister for Health had passed regulations which provided that such fully eligible persons injured in such accidents were not so entitled to free health care unless it was shown they could not recover compensation.

Power which the Minister relied on was s.72(2) of the Health Act, 1970 which provided that:

Regulations made under this section may provide for any service under this Act being made available only to a particular class of that persons who have eligibility for that service.

If it was interpreted allow the Minister to do as he did – i.e. effectively amend primary legislation – then it would have to fall.

However:-

It must therefore be presumed that in relation to the provisions of s. 72, sub-s. 1, the Oireachtas intended only a constitutional construction thereof and that the powers conferred on the Minister were merely for the purpose of giving effect to principles and policies which are contained in the Act itself.

EU Element:-

Will return to this – see Chapter 5

The Concept of Ultra Vires

Mode of control

Reflects theory of separation of powers in admin law

Two types

Procedural / Substantive

P: does not follow procedures

S: decision covers matters not covered by enabling legislation

Case-studies

Minister for I&C v Halls

Holiday Employees Act, 1961

Min allowed make regs to deem any person a “worker” for purpose of Act

Regs – made insurances agents “workers”

Big changes – Act supposed to deal with employees – contracts of service

HC held that the Min could not do this

looked at whole of leg – said meaning of “worker” had to be read in light of point of act – i.e. legislating for those under contracts of services

What do you make of this?

Court decided on point of legislation…informed what Minister could do under it…limited by purpose

See nice dictum of Butler J (p 25)

Have we replaced the risk of arbitrary gov power with arb judicial power?

Option 1: UV just about literal approach to legislation

Option 2: UV about courts moulding purpose of legislation

Are there in between options?

Roche & Bula v Min for I & C

S.14 Minerals and Development Act, 1940

3 conditions before property acquired

That appears to Min that minerals under landIn public interest that minerals be mined by stateMinerals not, currently, being worked efficiently

S.14.2 – any acquisition order shall specify the nature, situation, and extent of the minerals to which it relates;

What did Minister do? Order said

“all minerals under lands described in the schedule are hereby vested in the Minister”

SC – ultra vires – why? Did not show appraisal had been carried out

Was the error failing to show this or failing to do it? – was mandatory nature of requirement here…to specify which counted most.

Incorporated Law Soc v Min for J

Rules of Gov of Prisons – made under General Prisons (Ireland) Act, 1877

S.12 – regs for good govt of prisons and maintaining discipline in themS.13 – gave prisoners unrestricted priv comm. with sol and friends subject to measures to prevent tampering with evidence etc.

1976 rules – allowed Min to prevent access of persons to prisons (i.e. visits) if belived was necessary in interest of security of the prisoner or the State

HC – UV – why?

s.12 did not give power to create rules for safety of state alone – had to be related to good govt of prisons etc

could not be said that visits by certain persons was necessarily at odds with good govt of prisons