Constitutional - Delegated Legislation

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Art. 15.2.1

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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.

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Art. 15.2.2

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

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Cityview Press v. AnCO (1980)

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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?

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What is Delegated Legislation?

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- “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).

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Cook v. Walsh (1984)

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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.

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Harvey v. Minister for Social Welfare (1990)

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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.

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McDaid v. Sheehy (1991)

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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.

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Laurentiu v. Minister for Justice (1999)

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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”.

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Position post-Lauentiu

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- 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.

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Principles and policies test

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