Constitutional - Delegated Legislation

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has powers to make law for the State.

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

Facts: The provisions of the Industrial Training Act 1967 empowered the defendants to collect a levy from each enterprise in a particular industry, to train recruits in that industry.

The Act did not specify how levies were to be calculated, and put no ceiling on the levies.

The plaintiffs challenged the provisions as an unconstitutional delegation of legislative power.

Decision (SC):

1) The Court recognised the long-established phenomenon of delegating legislative power.

2) The Court pointed out the safeguard whereby any regulation made in this way is subject to annulment by both Houses.

3) However, it remains the responsibility of the judiciary to ensure that the exlusive authority of the legislature “in the field of law-making is not eroded” by an unconstitutional delegation of power.

4) The test: If the challenged delegation is a “mere giving effect to principles and policies which are in the statute itself”, i.e the filling in of details, it is constitutional. If it is more than this, it constitutes exercise of legislative power, and it unconstitutional.

5) Hogan and Whyte question whether the Court’s decision that the 1967 Act is constitutional is consistent with their own test; although the Act provides for a levy and stipulates that it must be paid, it provides no mechanism for calculating the levy – surely a principle or policy?

- “This facet of the separation of powers has teeth” (per Casey).

- Delegated legislation is the phenomenon whereby laws enacted by the legislature include provisions to the effect that details are fleshed out/administrated by Ministers or other bodies.

- Casey explains that this is necessary in view of the complex, intricate and ever-changing situations which confront the modern State; but constitutional limits (i.e. Art. 15.2.1) must not be transgressed.

- The primary focus of constitutional conflict is between the legislature and the executive, viz. to what extent the executive is entitled to usurp the law-making function.

- Despite the long-standing phenomenon of delegated legislation, it came to the fore in constitutional case law as late as the 1980s with the case Cityview Press v. AnCO (1980).

Facts:

Section 72(2) of the Health Act 1970 provides that the Minister for Health is entitled to make services under the Act available only to a particular class of people who were eligible for that service.

The infant plaintiff was seriously injured in a road accident and would normally have been entitled as a “fully eligible” person to free medical care under s. 45 of the 1970 Act.

The Minister had, however, excluded otherwise “fully eligible” people from benefitting from s. 45 where the injured party was entitled to recover damages or compensation for his injury.

The plaintiff argued that s. 72(2) constituted an unconstitutional delegation of legislative power.

Decision (SC):

1) The Court noted that if s. 72(2) authorised the Minister to remove or alter Health Boards’ obligations under s. 45, it would breach Art. 15.2.1.

2) Proceeding on the principle of the presumption of constitutionality, O’Higgins C.J. felt obliged to construct the Act in a way which rendered it constitutional; thus, he interpreted it as meaning that the Minister could make regulations permitting Health Boards not to provide certain kinds of services to persons of “limited eligibility”.

3) The Minister could not, however, amend s. 45 by ministerial regulation.

4) Thus, s. 72(2) was deemed constitutional, but the Regulation in this case was deemed ultra vires the Minister’s power.

Facts:

The applicant challenged the constitutionality of the Social Welfare Act 1952 on the ground that s. 75 empowered the Minister to make regulations which overrode legislation relating to certain benefits.

The Minister had made Regulations depriving the applicant of benefits he would otherwise have received.

Decision (HC):

1) In a parallel with Cook, the Court construed the 1952 Act narrowly, deeming it constitutional, but deeming the 1979 Regulations ultra vires the Minister’s power.

2) Per Finlay CJ: “The terms of s. 75 do not make it necessary or inevitable that a Minister … must invade the function of the Oireachtas in a manner which would constitute a breach of the provisions of Article 15.2.” In other words, provided the Minister did not act ultra vires, there was a way for s. 75 to lead to Regulations which did not usurp the legislative power.

Facts

Section 1 of the Imposition of Duties Act 1957 empowers the Government by order to impose, vary or terminate any excise, custom or stamp duty.

Section 2 provides that every such order would be immediately effective, but would lapse by the end of the following year unless confirmed by statute.

The plaintiff was convicted in 1986 under an Order made in 1975 and then enacted in 1976.

Decision (HC):

1) Blayney J. applied the Cityview test and found that s. 1 did not provide sufficient principles and policies – it did not stipulate what should be taxed, and by how much – leaving the Government with legislative power far beyond filling in legislative gaps.

2) Both Hogan & Whyte and Casey find that Blayney J. displays “unimpeachable” reasoning.

3) However, because the legislature had enacted the offence anyway in 1976, the applicant’s challenge failed, because Article 15.2 had been adhered to by the time he was convicted in 1986.

Decision (SC):

1) Because the case could be decided to without pronouncing on a constitutional issue, the SC unfortunately sidestepped the issue, upholding the conviction, and declaring Blayney J.’s reasoning to be obiter dictum.

Facts:

The case concerned the validity of s. 5(1)(e) of the Aliens Act 1935, which allowed the Minister to “make provision for the exclusion or deportation…”

Decision (HC):

1) Found that the provision “did not legislate for deportation. It merely permitted the Minister for Justice to legislate for deportation”.

Decision (SC):

1) The only case to date where the SC has deemed a legislative provision unconstitutional for non-compliance with Art. 15.2.1.

2) Majority: Hamilton C.J., Denham J., Keane J.. Dissent: Barrington J., Lynch J.

3) The majority stressed the lack of principles and policies in the impugned subsection.

Per Denham J.: It is not enough to declare as a legislative policy the fact that somebody will be deported if the Minister decides that this should be so – principles and policies means more than this!

“Standards, goals, factors and purposes … are absent”.

- Despite the “superficial clarity” (per Hogan & Whyte) of Laurentiu, it fails to clarify just how particular a legislative provision must be to constitute a principle and policy.

- There is an argument that the impugned subsection in Laurentiu did stipulate a policy – that of the deportation of all aliens at the pleasure of the Minister.

- Keane J. in Laurentiu did, however, emphasise that where determination of policy is left to the Minister subject to limited statutory restrictions, Article 15.2.1 has been violated.

- Hogan and Whyte, in the aftermath of Laurentiu, are of the opinion that unless there is an extreme delegation of power as in McDaid and Laurentiu, and provided the legislature adheres to Denham J.’s test of “standards, goals, factors and purposes”, the constitutional test for delegated legislation should be passed.

Per Denham J in Laurientiu - Legislature should set out “standards, goals, factors and purposes”, SI only fills in gaps.

- Article 29.4.10 constitutionally validates any “acts done or measures adopted by the State which are necessitated by the obligations of membership” of the EU or the EC.

- According to Hogan & Whyte, this has meant that the Courts have found it harder to strike the balance between legislative and executive power in the realm of domestic orders giving effect to Community Directives.

- Per Hogan & Whyte: although finally recognising that choosing an S.I. over primary legislation is not, in itself, necessitated by memership of the EU, the Courts are now somewhat generous in identifying principles and policies in EU legislation, which does, in fact, afford wide discretion to the domestic executive.

Facts:

The applicant challenged the constitutionality of Regulations from 1988 and 1990.

These were made pursuant to an EC directive regarding spot checks on farms for hormonal supplements (angel dust).

Pursuant to s. 3(2) of the European Communities Act (which gives the Minister wide scope in implementing Directives), the regulations amended primary Irish legislation – s. 10(4) of the Petty Sessions (Ireland) Act 1851 in that:

(a) They increased the time limit for prosecution from within 6 months to within 2 years of the inspection.

(b) They allowed a search warrant to be issued by the DC instead of the CC.

Meagher argued that this amendment of primary legislation violated Article 15.2.1.

Decision (HC):

1) Johnson J. found s. 3(2) of the 1972 Act to be an unconstitutional violation of Article 15.2.1, as it empowered the executive to repeal or amend domestic law.

Decision (SC):

1) Overturned the decision of Johnson J.; deemed s. 3(2) of the 1972 Act constitutional on the basis that it was “necessitated” by membership (Article 29.4.10).

2) However, the Court did envisage situations where such implementation would be unconstitutional:

(a) Where it was not necessary to use a statutory instrument, i.e. where primary legislation was possible.

(b) Where the directive was explicit about principles and policies, and the Regulation was merely filling these in, and not expressing a choice of principle or policy (per Denham J.)

3) Ultimately, the Court found that the Regulations from 1988 and 1990, specifying longer time periods between inspection and prosecution, were “necessitated” because the Minister had concluded that such a time period was necessary to give full effect to the EC Directives.

4) Hogan makes the following criticisms of the judgments:

(a) The judges’ pragmatic view of the word “necessitated” – is such a violation of Art. 15.2.1 really necessitated by membership?

(b) There is a clear democratic deficit in the EC; the Commission is effectively the executive, introducing EC policy by means of legislation; the Council of Ministers is where our representative can input into this legislation, but he is not brought to account for his position before going to Brussels.

Facts:

Regulations issued in 2000 were used to implement an EU Regulation from 1999 providing for the reorganisation of the milk quota scheme, with a view to ceasing the trading of milk quotas between farmers.

The statutory instrument set out various mechanisms, such as our version of a temporary transferal scheme, and a restructuring of the milk quota system in Ireland with the purpose of releasing milk quotas into the system which had been redundant.

The applicant argued that this manner of implimentation was

(a) not “necessitated” by membership for the purpose of Art. 29.4.10

(b) in violation of Art. 15.2.1.

Decision (SC):

1) Art. 29: The Court found that this manner of implementation was not necessitated by membership.

2) Keane J. clarified that the form of secondary legislation was not protected by Art. 29.4.10 – “necessitated” does not mean “needed for political expediency”; only if the substance of the secondary legislation was necessitated by membership would it be saved by Art. 29.4.10.

3) Thus, the choice of an S.I. over an Act as a vehicle to implementation is not necessitated by membership.

4) Art. 15: Keane and Fennelly JJ. applied the “prinicples and policy” test pragmatically, and found that the primary legislation (i.e., the EU Regulation) had sufficient principles and policy to leave the Minister only the job of filling in the gaps.

Facts:

The applicant was a fisherman who was prosecuted for the use of illegal netting under the Sea Fisheries (Drift Net) Order 1998; he argued that this order constituted an unconstitutional delegation of legislative power.

This order impelemented European Regulation and was made pursuant to s. 223A of the Fisheries (Consolidation) Act 1959.

However, there was no legal basis for the creation of the offence, because:

(a) s. 223A contained no offence, nor did it contain the power for a Minister to create one.

(b) s. 3(3) of the European Communities Act 1972 provides that indictable offences can be created only by the Oireachtas; they cannot be created in implementing EC legislation.

Decision (HC):

1) Kearns J., while accepting that the substance of the Minister’s Order was necessitated by EC membership, held that the form was not.

2) Because of the clear implication of s. 3(3) of the 1972 Act, the Minister had acted ultra vires, and domestic legislation was necessary.

Decision (SC):

1) Denham J. emphasised the importance of s. 3(3); highlighted the neceessity for domestic legislation if an indictable offence is to be created; and held that the Order was ultra vires s. 223A of the 1959 Act, and thus invalid.

Facts:

Section 16 of the National Monuments Act 1930 provides for the admission of public to monuments.

Overwhelming evidence during a review in 1994 showed that Skellig Michael was being damaged and rendered unsafe to visit because of the volume of visitors.

The respondent decided to issue non-transferable landing permits to boats, which had to be renewed annually.

The applicant, having been refused a permit and furnished with reasons, argued that the establishment of the permits scheme and the subsequent refusal constituted unconstitutional delegated legislation and was ultra vires the Minister’s powers under s. 16 of the 1930 Act.

Decision (SC):

1) Murray J. distinguished delegated legislation from mere administrative decisions (despite their parallels); this was not a matter of secondary legislation, but merely a matter of the administration of the Minister’s powers under s. 16(1) of the 1930 Act.

2) Management and controlling access to a national monument is not regulatory, but involved mere adminstrative decisions.

3) On the administrative issue: found for the respondent, because s. 2 obliges the responsdent to do everything necessary for the protection and preservation of the monument; thus the Minister had not acted ultra vires.

Facts:

Section 14 of the National Monuments Act 1930 (as amdended by s. 15 of the 1994 Act) sets out the following procedure for the demolition, removal, disfiguration, defacation, alteration etc. of a national monument:

(a) The consent of both the Commissioners for Public Works and the local authority is needed;

(b) In certain circumstances, approval from the Minister for Arts is also needed;

(c) Unless health and safety dictate immediate action, there is then a waiting period of 21 working Oireachtas days in which time no annulment resolution has been passed.

A 1996 Order transferred the CPW’s decision to the Minister for Arts, reducing from 3 to 2 the bodies involved in the decision-making process.

A 2002 Order then transferred both of the Minister for Arts’ functions to the Minister for the Environment.

The applicant’s argument was that these transfers amounted to amendments of statutes, at secondary level.

Decision (SC):

1) The three statutory bodies involved in the statutory body had completely different remits; the 1996 Order had the purpose of substituting the statutory regime with a different scheme which had only two bodies.

2) The will of the legislature had clearly been that an entirely different body would reach the final decision.

3) Because the 1996 Order purported to amend s. 15 of the 1994 Act, it was deemed invalid (ultra vires).

Facts:

The applicant was a Latvian charged with the offence of remaining within this jurisdiction after a date set by an immigration officer.

Section 5(1) of the Aliens Act 1935 empowers the Minister to set restrictions and conditions in respect of aliens landing in or entering the State, including limiting their entry to specific places.

Issue No. 1: Article 5(6) of the Aliens Order 1946 provides that an immigration officer may attach such conditions as the duration of stay and the engagement in business of the alien. The applicant sought a declaration that

(a) Article 5(6) was ultra vires the Minister’s power, and if necessary;

(b) Section 5(1) of the 1935 Act was unconstitutional.

Issue No. 2: Section 2(1) of the Immigration Act 1999, enacted post-Laurentiu, had ingeniously pre-empted this situation, and provided that

(a) every Order hitherto made under s. 5 of the 1935 Act had statutory effects, and

(b) where such retrospective legitimation would conflict with a constitutional right, the operation of the subsection shall be subject to such limitation as is necessary to give it effect in a constitutional manner.

If necessary, the applicant sought a declaration that s. 2(1) was unconstitutional (because of its form).

Decision (SC):

1) Issue No. 1: Keane C.J. held that the word “including” in s. 5 of the 1935 Act clearly did not confine the Minister to specifying places of landing; e.g., the Minister could provide for interviewing processes etc.

2) However, Article 5(6) clearly goes further than this, empowering an immigration officer to specify a time of departure from the State.

3) There is no explicit or implicit indication in the primary legislation that the Ministers power would extend so far; there is certainly no indication that the power would extend to an immigration officer.

4) On this basis, Article 5(6) of the 1946 Order was ultra vires the Minister’s power.

5) Because of this declaration, no examination of the constitutionality of s. 5(1) was necessary.

6) Issue No. 2: Keane C.J. pointed out that Art. 15 affords the legislature a “srikingly” wide latitude to enact legislation in whatever form it sees as appropriate.

7) There was no sustainable argument that the intention of the Oireachtas was unclear because of the method of legislation; nor that not enough consideration had been given to the legislation (to so hold would clearly infringe the Separation of Powers doctrine). In other words, the fact that the text of the retrospectively validated orders was not extensively included in the 1999 Act did not affect its constitutionality.

8) Conclusion: although the 1946 Order was ultra vires, it was retrospectively validated by the 1999 Act in a constitutional manner.

- Criticism: It is wondered by some critics why, if they are willing to accept the debasement of the legislative process to this extent, the Courts don’t simply tolerate delegated legislation in the first place. Also, the mopping up process (cf. McDaid, Leontjava) brings into question whether there were clear principles or policies in the first place.

- Counter-Arguments: (Note: those of Keane C.J.) retrospective validation of the secondary legislation by means of primary legislation.

Facts:

The Health (Amendment) No. 2 Bill was referred by President McAleese to the Supreme Court.

Two issues of delegated legislation emerged:

(a) The powers of the Minister under s. 53(2) of the Health Act 1970 to make regulations imposing charges;

(b) The powers of CEOs of Health Boards to mitigate charges payable under such regulations.

Decision (SC):

1) Issue No. 1: The Court pointed out various mechanisms in the primary legislation – some of which would be inserted by the new Bill – which represent principles and policies, and show that the Minister is entitled only to fill in the gaps:

(a) Charges are limited to in-patient services;

(b) Charges start to be payable after 30 days;

(c) Certain categories of person are excluded from liability to pay the charges;

(d) The maximum weekly charge is set at 80% of the maximum weekly pension.

2) In light of these clear guidelines, the Court found that the Bill passes the “principles and policies” test.

3) Issue No. 2: The Court saw the powers of CEOs to deem certain people not liable to pay charges not as an exercise of a legislative function, but rather as an administrative function, whose limits were clearly set out in the primary legislation.

Because of the case-by-case nature of making these decisions, the primary legislation could not pre-empt every case and simply had to provide for administrative decisions to be made.

FACTS: two provisions of Aliens Order at issue
(i)S.5(1) Aliens Act allowed Minister enact orders imposing conditions on landing or entering the state. Art 5(6) Aliens Order 1946 allowed Minister to impose conditions re length of stay
(ii)S.5(1)(h) Aliens Act allowed Minister to require aliens comply with provisions re registration, change of abode, employment and ‘other like matters’. Art 15 Aliens Order 1946 required alien to produce registration cert / passport on demand.

HELD:

(i)Art 5(6) of Order was ultra vires, went considerably further than the Act

(ii)Art 15 of the Order was intra vires, ‘other like matters’ covered the requirement for passport production. The phrase was used as there is frequently a need for a measure of flexibility to meet changing circumstance

Constitutional issues only arise where the delegated power is beyond administrative in nature. If administrative in nature, its fine

FACTS: Bill envisaged delegation to chief Exec Officer of relevant Health Board of power to waive charges for healthcare services in cases of hardship

HELD: this was administrative in nature. It would be impossible for Oireachtas to prescribe legislation for every special circumstance of individuals on margin of scheme. Constitutional issues only arise when delegated power is beyond administrative in nature.

Where EU legislation contains sufficient principles and policies, and Minister is simply implementing same, no difficulty

Meagher v Minister for Agriculture

FACTS: directive aimed at banning Growth hormones. Required certain Bans and Prohibitions to be put in place by Member states

HELD: Supreme Court said that system of implementing EU Law via Statutory Instrument (since European Communities Act 1972) was Constitutional.

FACTS: same issue: regulation of Milk Quotas. Council Regulation to allow Member States Discretion re such quotas. Ireland used the European Communities (Milk Quotas) Regulations 2000

HELD: there was no unconstitutional delegation of power by Ireland implementing the EU Law via Ministerial regulations

FACTS: directive aimed at banning Growth hormones. Required certain Bans and Prohibitions to be put in place by Member states

HELD: Supreme Court said that system of implementing EU Law via Statutory Instrument (since European Communities Act 1972) was Constitutional.