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Const separation pow
Constitutional Ireland separation of powers
| Question | Answer |
|---|---|
| What are the 3 powers the executive has from the constitution with which the court cannot interfere? | 1) External relations (29.4) 2) Set up criminal court (38.3) 3) Commute or remit criminal punishments GENERALLY court only intervene against executive where CLEAR DISREGARD OF CONSTITUTION |
| What case laid out the "principles and policies test"? | City View press Ltd v AnCo [1980] |
| What is the "principles and policies test" in City View press? | Delegated legislation is valid where the actions simply give effect to the principles and policies laid out in the legislation.If no principles and policies -legislation invalid. |
| What was held in City View Press Ltd v AnCo [1980]? | Levy on training valid as giving effect to a principle mentioned in the enabling legislation -must go beyond principle or policy to breach separation of powers |
| What 4 things will the court examine when assessing if delegated legislation is constitutional? | 1) does delegated act comply with principles and policies of the enabling legislation 2) Other constitutional rights violated 3) Not delegated on general words 4) power to repeal, make or amend primary legislation not delegated |
| Cite a case which illustrates the principle that power cannot be delegated on general words. | O'Neill v Minister for Agriculture [1998] Artificial Insemination licence to only one operator in area so restrictive - unconstitutional restriction on right to livelihood |
| What was the outcome in DPP v Leontajava [2004]? | a) Minister no authority Aliens Act to EXPEL (only forbid entry) b) Power to minister not customs official who acted ultra vires |
| What was held in DPP v Leontajava [2004] regarding the generalised delegation of power? | Delegated discretion OK if follow principles of enabling legislation |
| Given a choice the court may declare a delegated act unconstitutional or declare that a misnister is acting ultra vires - which option is the court most likely to adopt? | The court prefers to declare the minister ultra vires because striking a law out as unconstitutional is akin to the court telling the legislature what to do - (Ultra vires is telling the executive what not to do) |
| What was the point in Laurientiu v Minister for Justice [1999]? | Aliens Act 1935 no give minister power to restict length of stay in country- Held: Minister act ultra vires in restricting length of stay of Aliens |
| What case complied with the principle that the courts could not alter the wording of legislation to make it constitutional? | CC v Ireland (No2) [2006] -Supreme Court struck down rape law that allowed no defence of "mistake"- for Oireachtas - not court - to make law effective. |
| Can an indictable offence be created by delegated legislation from Europe? | No: No criminal offence from delegated legislation Browne v Ireland [2003] |
| Can a minister implement European Directives without enabling legislation? | Yes: where policies and princliples are in the directive - if not require enabling domestic legislation to define policies and principles. |
| What was held in Meagher v Minister for Agriculture and Food [1994]? | Minister can make decisions on Milk Quotas as merely implementing principles and policies of directives. |
| What 24 conditions must be met when implementing EU directives? | Delegated actions must a) be necessary to achieve purpose of directive b) comply with constitution c) not create criminal offence d) have stated principles or policies (otherwise Oireachtas must decide) |
| What 10 things are non-justiciable? | 1) defence 20 Foreign policy 3) National security 4) wording referenda 5)policy issues 6) Cases no manageable judicial standards 7) allocation resources 8) international treaties 9)Status national Emergency 10) Internal workings Oireachtas |
| What 3 things are justiciable? | 1) CRIMINAL sanction liability 2) CIVIL sanction/liability 3) resolution legal controversies between parties |
| What are the 3 steps in tackling a justiciability question? | 1) Is it CRIMINAL (court handle) 2) non-criminal resolution civil controversy - Justiciable Bord na gCon criteria 3) Is the power limited? |
| What case gives criteria as to when a matter is criminal? | Melling v O'Mathghamhna [1962] |
| What are the 3 main indicia of criminality cited in Melling v Mathghamhna? | 1) Mens rea required in offence definition 2) Punitive sanction beyond repayment of money (i.e. a fine) and/or prison sentence 3) Offences agaisnt community at large not just an individual |
| What are the secondary indicia of a criminal offence according to Melling v Mathghamhna? | 1) detention 2) searching of detained person 3) before District judge when in custody 4) bail |
| Who decides on CONTEMPT- TRANSFER TO PRISON and BAIL & REMAND? | The courts only |
| What case decided that the Oireachtas could not convioct or sentence people for contempt? | Re Haughey [1971] |
| What case decided that the Executive could not transfer a borstel offender to prison? | The State (Sheerin) v Kennedy [1996] |
| Do tribunals deal with criminal matters - explain reasons. | No: tribunals 1) non accusatorial 2) tribunals cannot punish |
| What was at issue in AG v Casey [1930]? | Claim AG should give criminal trial with jury for Revenue default proceedings Held: a fine in a civil action is not criminal matter - civil recovery of debt |
| When is an action judicial? | 1) CONTROVERSY of law or dispute between parties on point of law 2) Potential imposition of penalty for one party |
| Why was it held in Gilligan v Criminal Assets Bureau [1998] that the seisure of assets by CAB did not require a criminal conviction? | 1) Action in rem not in personam therefore civil matter not criminal 2) mere reparation of monies due not punishment. |
| What are the 5 criteria in McDonald v Bord na gCon [1965] to determine whether a matter is judicial? | 1) DISPUTE of law exists 2) DETERMINATION of rights/liabilities 3) FINAL DETERMINATION of liabilities rights and penalties 4) ENCFORCEMENT 5) MAKING ORDER CHARACTERISTIC IRISH COURTS (eg no moot issues) |
| When can a minister make regulations? | When authorised by statute - courts may void when outside the terms of the legislation- ultra vires |
| Can the Oireachtas impose mandatory orders? | Yes: unless there is a justiciable controversy State (McEldowney) v Kelleher [1983] |
| What was held in State (McEldowney) v Kelleher [1983] (licensing of street collections) | Act requiring court to dismiss appeal agaisnt garda refusal of licence on basis of sworn belief by garda that proceeds of street collections would be used for illegal purposes - Unconstitutional as rob court of discretion |
| Can legislation stipulate mandatory sentances? | Yes a) where there is a choice left between sentances (fine or jail) Osmanovic v DPP [2006] b) court can still decide on guilt NO ELEMENT OF NECESSITY IN FINAL JUDGEMENT |
| Can legislation stipulate that particular evidence is conslusive proof of guilt? | No: Maher v AG [1973] Blood samples conclusive proof of guilt under Road Traffic Acts rob court of prerogative to assess guilt in light of ALL THE DEFENDANT'S RIGHTS |
| What is the difference between the findings in Maher v AG [1973] re: "conclusive proof" and Sloan v Special Criminal Court [1993] where government declared organisations illegal? | In Sloan the Court still retains the discretion to decide on the facts whether a person belongs to an illegal organisation |
| Why are tribunals not judicial? | because they are concerned with findings of fact not imposition of penalty or finding of guilt - also report to Oireachtas (unlike courts) |
| What gives legitimacy to the actions of tribunals? | The right of appeal to the High Court |
| What case held that the imposition of an estimated tax penalty on an employer was permissible and why? | Kennedy v Hearne [1988] right of appeal to High Court preserved in Finance Act, 1968 |
| When is a professional body acting judicially and impermissibly suspending or removing a licence to practice? | When it is not a LIMITED EXERCISE OF POWER Re: Solicitors Act 1954 [1960] strike off without an appeal |
| What is the test to decide whether a professional body is not engaged in a "limited exercise of power"? | Does the action PROFOUNDLY AFFECT THE LIVES, LIBERTY, REPUTATION AND FORTUNE of affected person (constitutionally protected by courts) |
| Give an example of a case where a disciplinary body WAS acting constitutionally in striking a doctor off? | M v Medical Council [1984] - rules required confirmation by the courts therefore no usurp courts |
| Does the Garda Siochana have a privileged position as a professional body with regard to disciplinary matters? | Yes: Keady v Commissioner Garda Siochana [1992] Commissioner in priviledged position as head of "disciplined force" allowing him to enforce discipline |
| Why are clubs, trade unions and sporting organisations not subject to constitutional constraint with regard to disciplinary matters? | No loss of profession so court approval not necessary. |
| What was held in Gallagher's Application [1991]? | Court order detention "until further order of court" Held: once sentanced court no further role and executive has authority to commute sentence - court cannot freeze this executive function |
| Can a suspended sentence be commuted by the executive? | No May be re-activated by the court if conditions laid down AT ORIGINAL TIME OF SENTANCING met |
| What was held in DPP v Finn [2001]? | CCA substituted a different sentence some years into detention period on application from DPP Held by SC cannot usurp perogative of executive to commute after first sentence given |
| Are disciplinary proceedings criminal if involve criminal act? | No: the State (Murray) v Rann [1979] Prison govenor can conduct internal disciplinary - criminal element may be dealt with seperately by courts CRIMINAL = crime against state |
| is the forfeiture of assets under the proceeds of crime act -crimonal? | No is a civil action in rem rather than in personam Gilligan v Criminal Assets Bureau [1998] |
Created by:
Solomon