Constitutional - Separation of Powers

The appeal to this court in these cases comes at the end of a lengthy sequence of such cases in the High Court, where the court has been asked to ensure that the State discharges what is claimed to be its constitutional obligation to provide for the accommodation needs of children with particular problems. The order appealed against requires the first and fifth named respondents in the first entitled proceedings (hereafter “The Ministers”) “(in relation to all the aforesaid entitled proceedings) [to] take all

steps necessary to facilitate the building and opening of secure and high support units in places as follows.....”

2. There follows a list of ten “high support” or “special care” units which, under the terms of the order, are to be built and opened by specified dates in different parts of the State. A list of the units so specified will be found in the Appendix to this judgment.

In Buckley -v- Attorney General [1948] IR 3, O’Byrne J, speaking for the former Supreme Court, said that,
“The manifest object of [Article 6 of the Constitution] was to recognise and ordain, that, in this State, all powers of Government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”

In Boland -v- An Taoiseach , Griffin J, referred to Article 6 and other articles and said that
“In my view, these articles demonstrate that the Oireachtas, and
the Oireachtas alone, can exercise the legislative power of the
Government; that the Government, and the Government alone, can
exercise the executive power of Government; and that the judicial
power of Government can be exercised only by judges duly
appointed under the Constitution in courts established by law
under the Constitution.....”

Fitzgerald C.J. in Boland v. An Taoiseach [1974] IR 338, where he held at p. 361-362:


“. . . [Article 6] . . . [established] beyond question the separation of the executive,
legislative and judicial powers of government . . . Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.”


121. This approach was also taken in the same case by Griffin J., at p. 370 - 371, where, having referred to Article 15.2.1, Article 28.2 and Article 34.1, he stated that:


“In the event of the Government acting in a manner which is in contravention of some provisions of the Constitution, in my view it would be the duty and right of the Courts, as guardians of the Constitution, to intervene when called upon to do so if a complaint of a breach of any of the provisions of the Constitution is substantiated in proceedings brought before the Courts.”

“The executive power of the State shall, subject to the provisions
of this Constitution, be exercised by or on the authority of the
Government.”

“.... the constitutionally mandated separation of powers is a vital constituent of the sovereign independent republican and democratic State envisaged by the Constitution. It is not a mere administrative arrangement: it is itself a high constitutional value. It exists to prevent the accumulation of excessive power in any one of the organs of Government or its members, and to allow each to check and balance the others. It is an essential part of the democratic procedures of the State, not inferior in importance to any article of the Constitution.”

hus, in McMenemin -v- Ireland this court found that, due to changing circumstances, the operation of certain statutory provisions had led to an unjust and inequitable result where the pension entitlements of a district judge were concerned. The court, however, set aside the finding in the High Court that the plaintiff was entitled to a declaration to that effect. In the course of his judgment Hamilton C.J., said

“This situation requires to be remedied by the Oireachtas in accordance with the provisions of Article 35 and 36 of the Constitution because the present situation has led to an unjust and inequitable result whereby the applicant has suffered loss, whether by way of excessive reduction in his pension or the payment of an inadequate lump sum by way of gratuity.
“The manner in which this situation is remedied is a matter for the Oireachtas and it is not open to this court to interfere with the manner in which this situation is dealt with by the Oireachtas unless the Oireachtas fails to have regard to its constitutional obligations in this regard and this court must assume at this stage that the Oireachtas will have regard to such obligations.
“I do not propose to make a declaration giving effect to my views because, having regard to the respect which the separate organs of Government, the legislature, the Government and the judiciary have traditionally shown to each other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with law and in accordance with its constitutional obligations.”

As Costello J, as he then was, pointed out in O’Reilly -v- Limerick Corporation [1989] ILRM 181, it is not the function of the courts to make an assessment of the validity of the many competing claims on national resources: as he said, in exercising that function, the court would not be administering justice in the normal sense but would be engaged in an entirely different exercise, i.e., an adjudication on the fairness or otherwise of the manner in which other organs of State had administered public resources. In this case, the State acknowledge that the resources are available, but take issue with what they say is the assumption by the courts of the role of the executive in determining how best the resources, admittably available, should be applied in achieving the agreed result, i.e., the vindication of the children's constitutional rights. I find the conclusion inescapable that, since the High Court first began the difficult task of grappling with this problem, a Rubicon has been crossed, clearly from the best of motives, in which it is moving to undertake a role which is conferred by the Constitution on the other organs of State, who are also entrusted with the resources necessary to discharge that role in the interests of the common good.

“. . . [it] springs from, and is necessitated by, that respect which one great organ of the State owes to another.”

It has long be recognised that no one of the three great institutions of State is paramount. In Murphy v. Corporation of Dublin [1972] IR 215 at p. 234 Walsh J. stated:


“As the legislative, executive and judicial powers of government are all exercised under and on behalf of the State, the interest of the State, as such, is always involved. The division of powers does not give paramountcy in all circumstances to any one of the organs exercising the powers of government over the other.”

As all powers of government derive from the people and are exercised by the institutions of State established by the Constitution for the people it is proper that each branch of government respect the others. Thus, when the courts commenced reviewing legislation under the provisions of the Constitution of Ireland, 1937 they developed the concept of the presumption of constitutionality. In Pigs Marketing Board v. Donnelly Dublin) Ltd . [1939]

116. IR 413, Hanna J. stated at p. 417.


“When the court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless and until the contrary is clearly established.”

Buckley and Ors. (Sinn Feín v. Attorney General & Anor.

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.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

Finlay C.J. in Crotty v. An Taoiseach


[1987] IR 713 at p. 775:


“Furthermore, I interpret the decision of Griffin J. in Boland v. An Taoiseach
[1974] IR 338 as being consistent with the view already expressed by me that where an individual person comes before the courts and establishes that action on the part of the executive has breached or threatens to breach one or other of his
constitutional rights that the courts must intervene to protect those rights but that otherwise they cannot and should not.”

Having considered the words of Fitzgerald C.J. in Boland v. An Taoiseach [1974] IR 338 especially at p. 362 and the words of Finlay C.J. in Crotty v. An Taoiseach [1987] IR 713 especially at p. 775, Hamilton C.J. stated in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10 at p. 32:


“These dicta clearly establish that
1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts with the restraints imposed by the Constitution on the exercise of such power.
2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.
3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”

The courts have the power and obligation to protect constitutional rights. This protection may be acknowledged and remedied after an event. However, the court also has jurisdiction to protect a person from an anticipated breach of a constitutional obligation. This was recognised by Walsh J. in East Donegal Co-operative v. Attorney General [1970] IR 317 at p. 338, where he stated:


“Rights which are guaranteed by the Constitution are intended to be protected by the provisions of the Constitution. To afford proper protection, the provisions must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees and to put to the test an apprehended infringement of these guarantees.”

126. It has long been recognised that the courts have a wide power to remedy breaches of constitutional rights. Perhaps the most quoted dictum on the topic was that in The State (Quinn) v. Ryan [1965] IR 70 by O’Dalaigh C.J. who stated at p. 122:


“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented.
The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”

Byrne v. Ireland [1972] IR 241 at 264, Walsh J. stated:


“In several parts in the Constitution duties to make certain provisions for the benefit of citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights.”


128. He continued at p. 280:



“In my view, that was clearly enforceable against Saorstát Éireann if no provision had been made to implement that Article of its Constitution. There are several instances in the Constitution of Ireland also where the State undertakes obligations towards the citizens. It is not the case that these are justiciable only when some law is being passed which directly infringes these rights or when some law is passed to implement them. They are justiciable when there has been a failure on the part of the State to discharge the obligations or to perform the duties laid upon the State by the Constitution. It may well be that in particular cases it can be shown that some organ of the State already has adequate powers and in fact may have had imposed upon it the particular duty to carry out the obligation undertaken by the State, but that would not mean that the State was not vicariously liable for the non -performance by its various organs of their duties.”


129. He stated also at p. 281:



“Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available.”

Denham J in DT -v- Minister for Education:

Exceptionalism


146. This case includes the concept of exceptionalism. This term has been used to describe cases which include exceptional circumstances which call for an exceptional decision. The Constitution specifically refers to exceptional cases - indeed it does so in an article most relevant to this case. Article 42.5 states:


“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”



147. The term ‘exceptional’ has a clear meaning. The Concise Oxford Dictionary, 8th Edition, describes the term as:


“1. forming an exception
2. unusual; not typical (exceptional circumstances)
3. unusually good; outstanding.”


148. I am satisfied that in the Constitution the term ‘exceptional’ means forming an exception, unusual, not typical, being exceptional circumstances. Thus the Constitution specifically recognises exceptional cases and that in such exceptional cases decisions of an exceptional nature may be made. Indeed this concept is at the root of the concept of justice itself where a decision is sought that is just for the parties involved.

The circumstances of these cases are exceptional. They include factors as identified in this judgment. There are circumstances in which a court has a duty to intervene to protect constitutional rights. The court has a jurisdiction to make mandatory orders. The orders sought in this case are at the extremity of this jurisdiction. Consequently, in making any such order a court has a heavy burden to acknowledge the respect it must give to the people’s other organs of state and act accordingly. In light of the exceptional circumstances of these cases I am satisfied that the court had a jurisdiction to make the mandatory orders in issue. In so deciding I am persuaded also by the ongoing nature of the review of the situation by the High Court and the right (expressed and implied) of the respondents to apply to the court. On any such application it is appropriate for the court to approach the issues with the respect required for great institutions of state - the respondents. I am satisfied that the order in question is necessary in the circumstances to vindicate the rights of the children. By such an order the people’s institutions of state may, on balance, achieve a vindication of the children’s constitutional rights. In the circumstances the use of a mandatory order directing the Minister to take all necessary steps and do all things necessary to facilitate the building and opening of the named high support units (the provision of which the Minister had previously indicated to the court was already in hand), was consistent with the obligation of the court to vindicate constitutional rights.

Constitution sets up a nation governed by ‘great organs of the State’

Three separate arms of governance: Legislative, executive, judiciary

Division of powers between the three arms

Legislature (Oireachtas) writes Laws

Executive (Government) carries out those laws – or “executes” those laws

Judiciary (Courts) judges if laws are Constitutional/are being followed

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 the power to make laws for the State’

Article 15.2.2

‘Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures’

Two types of legislation

(i)Primary legislation: acts of the Oireachtas, statutes.

(ii)Secondary legislation: measures enacted by those to whom the Oireachtas has delegated legislative authority. Fills in detail of legislation.

Task of the courts to adjudicate on what exactly can be delegated to sub-ordinate bodies: known as ‘non-delegation’ doctrine

Settled principles re non-delegation doctrine

(i)Applicable test is whether parent legislation contains sufficient principles and policies

(ii)Applies where executive act is something beyond the merely administrative

(iii)Courts usually find the executive act is ultra vires, rather than striking down the parent act

(iv)Relatively similar principles in EU law

Art 28.2: the executive power of the State is vested in the Government

The Courts take the view that certain matters are a function of the executive, for eg. Art 29.4 and international relations, and will show deference in re same

Court may intervene where government is in clear disregard of the Constitution

FACTS: vacant seat in Dublin South Central constituency for 14 months

HELD: leave granted for JR, Government constitutionally obliged not to impede or oppose motion to have seat filled

Illustrates that executive can be answerable to the courts (see also Doherty v Government of Ireland)

FACTS: applicant challenged existence of Special Criminal Court

HELD: In establishing the Special Criminal Court, government not acting judicially, rather making a political judgment on adequacy of the ordinary courts to secure effective administration of justice

FACTS: Clause 5 of Sunningdale Agreement contained statement by Irish Government accepting that there would be no change in the status of NI until majority of NI people wanted change

HELD: ‘Agreement’ was a communique containing assertions and declarations of policy, which the Court had no power to review. There had been no formal Agreement entered into, which the Courts could review

HELD: SEA required a delegation of national foreign policy decision making to the EU institutions, therefore unconstitutional in light of Art 29.4.10

FACTS: argued that Ireland could not enter into Anglo-Irish Agreement

HELD: vast and determining difference between this Agreement and the SEA in Crotty case

FACTS: Accommodation for Travellers. Departmental guidelines re Building Regulations – on the face of it, a matter peculiarly for the Executive

HELD: While deciding against the Plaintiff (on two main grounds), the matter was nonetheless justiciable, and this despite the peculiarly Executive nature of the matter involved.

Article 34.1- justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be administered in public.

Article 37.1- Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

(Sinn Fein Funds)

FACTS: litigation before High Court re funds to which party was entitled. While action was pending, the Sinn Fein Funds Act passed providing for disposal of the funds in manner laid down in Act, and providing for a stay on the litigation

HELD: unconstitutional, an unwarranted interference by the Oireachtas with the operation of the Courts

FACTS: Applicant served and published a statutory notice of intention to make application to District Ct for licence to operate slot machines. Council passes resolution under Gaming & Lotteries Act for limited area not including his premises

HELD: passing of resolution did not constitute an unconstitutional interference with the judicial process. This was not telling the District Court what to do. There as no case before the District Court when the UDC changed the locations that were allowed have Amusement Licences.

Subtle Distinction between Judicial power and legislative power

FACTS: Re: Section 62 of the Housing Act 1966. This requires the District Court to issue a warrant for repossession if certain demands for repossession have been made and an application for repossession has been “duly made”. Does this rob the District Court of any discretion?

HELD: The Supreme court said no.

No existing proceedings existed. No justiciable controversy existed that was being rail-roaded by the Legislature

It was simply the Legislature making certain steps by the DC mandatory – analagous to a mandatory disqualification following conviction for drink-driving

One can STILL argue before the DC that the demands were not met and the Application was not duly made

FACTS: Section 19 of the OASA 1939 allowed the Government issue a Suppression Order in respect of any organisation that it opines is unlawful. Section 19(4) provides that a suppression order shall be CONCLUSIVE evidence for all purposes that an organisation is unlawful. Sloan argued that Section 19(4) was unconstitutional. He said that it determined that his membership was unlawful.

HELD: It did not. It did not determine his membership at all. It simply determined that IF he was a member of a given organisation, then this membership was of an unlawful organisation.

The Justiciable controversy was regarding his membership

FACTS: Accused discharged by DPP on a “Preliminary Examination”. DPP relied on Section 62 of Criminal Procedure Act 1967 to argue that he could STILL be sent forward for trial on Indictment

HELD: Gannon, J – this would frustrate the order of the Court, and determine the justiciable controversy already determined. The behaviour of the DPP – not Section 62 itself – was thus unconstitutional.

FACTS: Section 44(2)(a) of the RTA 1968 provided that a certificate stating that a person’s blood contained a specified concentration of alcohol was “Conclusive Evidence” of that blood amount.

HELD: Supreme Court: Unconstitutional. The Court could not, then, determine the justiciable controversy as to whether the accused was guilty. “The administration of justice, which in Criminal matters is confined exclusively by the Constitution to Courts and Judges set up under the Constitution, necessarily reserves to those Courts and judges the determination of ALL the essential ingredients of any offence charged against an accused person. In so far as the statutory provision in question here purports to remove such determination from the judges or the courts appointed and established under the Constitution, it is an invalid infringement of the judicial power”

FACTS: Section 13(4) of the Street and House to House Collections Act 1962 allowed Police Officer’s sworn testimony of reasonable grounds for believing proceeds of collection would be unlawfully used to compel District Court to disallow application to collect.

HELD: Section 13(4) was invalid. It determined the justiciable controversy. ‘Where the effect of the statutory provision ifs that the dispute is determined by the Oireachtas and not by the Court, and where the court is obliged to dismiss the appeal without forming an opinion as to the rights of the respective parties, the provision is clearly invalid having regard to the Constitution’

FACTS: Section 4 of the Summary Jurisdiction Act 1857: DJ MUST refer a case stated by the DPP, even if DJ thinks it frivolous. If DJ thinks accused’s application for case stated is frivolous, however, he can reject it.

HELD: Supreme Court disagreed with High Court, and held that it was NOT unconstitutional. It did NOT decide the justiciable controversy as to whether or not the accused was guilty of the offence. “It does no more than enable the law officers to obtain a ruling from a Superior Court as to the correctness of the District Judge’s determination where they are dissatisfied with that determination as being erroneous in point of law. It is entirely distinguishable form the provision which was found to be invalid in McEldowney, where the legislation assigned a particular issue for determination to the District Court and then, in effect, directed the court to decide the issue in a particular manner where evidence of a specific nature was given”

Legislation must not DETERMINE a justiciable controversy.

Article 34.1- justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be administered in public.

Article 37.1- Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

Therefore judicial power is to be exercised by the courts (not the executive or legislature) with the exception of certain bodies/persons who can exercise judicial powers provided they are limited and non-criminal.

For a power of this kind to be legitimate must be satisfied it is

(i)Not a ‘criminal matter’
(ii)Power is ‘judicial’ in nature
(iii)Power is ‘limited’ in nature

Art 38: No person shall be tried on any criminal charge save in due course of law.

FACTS: Murray committed common assault on another inmate – 3 days close confinement and 2 months loss of privileges. Punishments imposed by Governors of Prisons – pursuant to Rules for the Government of Prisons Act 1947

HELD: Non-criminal matter. Finlay P: ‘The essential ingredient of a criminal matter must be its association with the determination of a question as to whether a crime against the State or against the public has been committed. At no stage is the governor of a prison........ concerned with the determination of whether the prisoner has committed a crime against the State or against the public. The governor is solely concerned with whether a breach of prison discipline has occurred and, if so, which of the permitted penalties should be imposed’

FACTS: S30(1) Income Tax Act 1918 provides that AG can sue for Revenue Defaults – was this a criminal matter?

HELD: No, it is a proceeding to recover a penalty under a Statute - and is Civil

FACTS: forfeiture provision where a car is confiscated for evading Customs duty.
-HELD: Similarly, simply a Civil procedure to recover under Civil Proceedings

FACTS: S186 Customs Consolidation Act 1876 – SMUGGLING – Criminal in nature?

HELD: several criteria deemed to indicate a crime:

(i)Offences against the Community at large

(ii)Sanction must be punitive, and not just Financial reparation (Melling: 3 x times the value of the duty unpaid on smuggled goods )

(iii)Mens Rea required

Further, S.186 contained the following criteria:

–Detention of the individual possible prior to charge
–Power to search the individual
–Presence on that charge in a District Court
–Question of BAIL, including refusal of Bail
–Imposition of pecuniary – and punitive – penalty: a fine, not just compensation
–Liability to imprisonment: either for non-payment of the fine, or simply on foot of commission of the Offence simpliciter.

Therefore this was a criminal matter

FACTS: could the Beef Tribunal inquire into allegations of criminal conduct?

HELD: No breach of Article 38 if potentially criminal matters are investigated/discovered – the issue is whether or not the imposition of a penalty might follow thereafter.

FACTS: did the process of tribunals of inquiry amount to exercise of judicial power?

HELD: although the first part of McDonald was satisfied (existence of dispute), this was not enough to render it an exercise of judicial power

FACTS: was the application of censorship provisions that banned certain materials a criminal matter?

HELD: banning materials is not adjudicating on criminal liability. No imprisonment

(i)A dispute or controversy as to the existence of legal rights or a violation of the law;

(ii)The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;

(iii)The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;

(iv)The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;

(v)The making of an order by the court which as a matter of history is an order characteristic of courts in this country.

HELD: two essential ingredients from Mc Donald

(i)Contest between the Parties
(ii)Infliction of some sort of penalty or liability

HELD: Tribunals feature none of the fundamental characteristics of the administration of justice

FACTS: DCE sought order disqualifying Michael & Thomas Bailey as company directors. In High Court, Irvine J grated an order to the respondents to exclude findings of the Mahon Tribunal from the disqualification litigation. Appealed to Supreme Court

HELD: Supreme Court: upheld High Court order re inadmissibility of Tribunal findings.

Denham referred to Finlay CJ in Goodman International v Hamilton: ‘…the determination of Finlay CJ is a ruling on the issue holding that the tribunal was not administering justice, or usurping the activities of the courts. It distinguished the function of the tribunal from that of a court and held that the finding of a tribunal forms no part of the material a court can rely upon, and further that it cannot be used as a weapon of attack of a defence by a litigant when the same matter is before a court.’

Denham J quoted from the judgment of Hardiman J. in Murphy & Ors v. Mr. Justice Flood & Ors [2010] IESC 21

‘A Tribunal of Inquiry is "a simple fact-finding-operation" according to Finlay C.J. (at p.588). The Tribunal has no power to inflict a penalty and its determinations cannot "form any basis for the punishment by any other authority of that person" at p.588. Its function is to "make a finding of fact, in effect, in vacuo, and to report it to the Legislature.’

Therefore HELD that the excerpts from the Tribunal report could not be admitted as evidence

Hardiman J.:

‘A Tribunal of Inquiry is "a simple fact-finding-operation" according to Finlay C.J. (at p.588). The Tribunal has no power to inflict a penalty and its determinations cannot "form any basis for the punishment by any other authority of that person" at p.588. Its function is to "make a finding of fact, in effect, in vacuo, and to report it to the Legislature.’

FACTS: Law Society Disciplinary Committee had powers to strike a solicitor off roll and order payment to any party of Costs

High Court opined that the limited powers ensured there was no unconstitutional usurpation of Judicial powers

Supreme Court disagreed and held that the powers were an administration of justice due to the finality of the findings.

FACTS: Fitness to Practice Committee had certain powers under the Medical Practitioners Act 1978

HELD: All the Medical Council could do is initiate proceedings in the High Court to erase name of practitioner from register / suspend them from practice. Therefore, not an unconstitutional interference

FACTS: Nurses Act 1985 contained powers similar to Medical Practitioners Act 1978.

HELD: Supreme Court opined that had An Bord Altranais been able to strike off a nurse from the Board, then that might have been unconstitutional

FACTS: Garda Siochana (Discipline) Regulations 1971. Tribunal of Inquiry established under the Regulations could decide “what disciplinary action shall be taken” for certain scheduled acts/omissions under those Regulations. Keady was accused of making false claims for hours worked. The action taken against him was dismissal.

HELD: NOT an unconstitutional trespass into the judicial domain.

O’Flaherty J: distinguished Re the Solicitors Act 1954, on the special basis of Solicitors and their High Court oversight historically, and held that the Gardai:

“could not properly carry out its essential function of preserving law and order unless there was an entitlement in the commissioner to enforce discipline which necessarily involves the ultimate sanction of dismissal from the force for sufficiently grave breaches of discipline”

HELD: “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 and reputations of those against whom they are exercised they cannot possibly be described as ‘limited’”

Intro: Art 15.2.1 and 15.2.2
•What is the Cityview Press test? Is the delegation ‘more than a mere giving effect to principles & policies which are contained in the statute?
•Is the Court willing to use the principles to control delegation of legislative power?
•McDaid v Sheehy: Imposition of Duties Act 1957, gave Government power to limit, impose, vary or terminate any excise, customs or stamp duty: total power. No principles and policies in Act to guide how this should be done, therefore impermissible delegation, executive was legislating

Courts often willing to examine whether the Minister / subordinate body applied its powers incorrectly, and if so, can strike down the delegated legislation rather than the parent Act
•Harvey v Minister for Social Welfare: minister could not implement ‘one pension rule’, regulations null and void, but parent act upheld
•Cooke v Walshe: again, ministerial regulations (denying free health care to certain classes of persons) null and void, parent Act upheld

Aliens Act 1935: refer to cases of Laurentiu (minister empowered to make deportation orders: impermissible delegation) and Leonjtava (Minister could not impose conditions on length of stay, but could require production of passport)
•Refer to the fact that the court has established that delegation of administrative functions poses no difficulty: Re Article 26 and the Health (No.2) (Amendment) Bill 2004

Lastly, can refer to the fact that the same Cityview Press principle applies to EU law- where Minister enacted Directives for example Meagher v Minister for Agriculture, Maher v Minister for Agriculture
•Conclusion: Therefore, it is clear that the courts are willing to apply the Cityview Press principles to effectively control the delegation of legislative power to the Government / other statutory agencies. Courts have shown a willingness to examine the use of the power by the Minister, and if ultra vires to declare the delegated legislation null and void, and uphold constitutionality of the Parent Act- this illustrates deference to the Oireachtas; the legislation it has passed is presumed constitutional, and it is presumed the Oireachtas intended any delegation of power to be exercised constitutionally also.

Intro: Art 34.1 and 37.1 (‘limited functions and powers of a judicial nature, in matters other than criminal matters’ being exercised by non-courts’)
•Brief examination of the elements of Art 37.1, what constitutes:
-‘a criminal matter’ Melling v O’Mathghamhna
-‘judicial power’ McDonald v Bord na gCon
-‘limited functions and powers’: can look at this from the point of view of disciplinary hearings

Re the Solicitors Act (1954): Law Society Disciplinary Committee had powers to strike a solicitor off roll and order payment to any party of Costs, Supreme Court held that the powers were an administration of justice due to the finality of the findings
-M v Medical Council: All the Medical Council could do was initiate proceedings in the High Court to erase name of practitioner from register / suspend them from practice. Therefore, not an unconstitutional interference
-K v An Bord Altranais: Supreme Court opined that had An Bord Altranais been able to strike off a nurse from the Board, then that might have been unconstitutional.

The aforementioned cases illustrate that the Courts are in agreement with the Constitutional Review Group in its Report of 1996: non-judicial persons should not be permitted to exercise judicial powers with such far-reaching consequences as striking a solicitor off the roll.
•It is clear from the case of Keady v Commissioner of An Garda Siochana (1992) that the courts do not regard the simple loss of employment to be as far reaching an effect as loss of qualification (Garda Commissioner was entitled to decide what disciplinary action to take, even if that involved dismissal)

Questions over the approach raised in the case of
-Geoghegan v Institute of Chartered Accountants in Ireland (1995)
-FACTS: applicant challenged the constitutionality of the Association’s byelaws and in particular powers of the Association to expel or suspend a member for disciplinary infractions.
-HELD: crucial difference between this case and Solicitors Act case- the powers in Geoghegan rested on contract rather than statute, therefore not unconstitutional.
•Judgment heavily criticised by Kelly, Hogan & Whyte- separation of powers doctrine should not be capable of being circumvented by contract.

Conclusion: The claim is as persuasive now as it was in 1958. Refer to case of Melton Enterprises v Censorship of Publications Board (2003): the court approved the test from the Solicitors case- while the effect of a ruling from the censorship board could effect the reputation of the publisher, this was far removed in gravity from the disqualification of a person from carrying on a trade or profession.
•It appears therefore that the Courts are still concerned with ensuring that non-judicial persons should not be permitted to exercise judicial powers with such far-reaching effects as the taking away of a professional qualification, rather than examining whether powers based on statute or contract.

1)No Constitutional bar to jurisdiction of courts (absence of an express exclusion in Article 15.10 of the jurisdiction of the courts)
2)When statute regulates Oireachtas, regulation is within scope of courts (disciplinary action taken by Committee on Members Interests of Seanad Eireann pursuant to S. 8 Ethics Act 1995)
3)No appeal outside Committee = offence of nemo iudex in sua causa
4)Under Act members of public can complain, therefore not a wholly internal Oireachtas matter