A Parliamentary Government, Judges that Make Law and a Delegation of Powers: The Separation of Powers?

Published on 4 July 2020 at 10:25

Bunreacht na hÉireann is the basic and primary source of law in the Republic of Ireland. In article 6 of the Constitution, the democratic nature of the state is established by sourcing the power of the government, exercised by its three branches, to the Irish people. The article also confines these powers to only be exercised by, or on the authority of, the organs of the state recognized in the constitution. From this article, the doctrine of Separation of Power as we know it arises. Under this doctrine the branches of the state are asked to respect the roles of each other by not interfering with their responsibilities.


The legislature, represented by the Oireachtas, is the sole legislative body with law making powers in the state, by virtue of article 15.2 of the constitution. This was described by Basil Chubb, the first chair The Department of Political Science at Trinity College Dublin, as ‘the single greatest myth of the Irish Constitution’ as the government seizes control over this process by controlling the majority of the parliament. Article 15.2.1 allows it to delegate technical parts of law making to subordinate legislators, usually represented by cabinet ministers, that are originally elected as representatives of the people, under the Irish model of the Westminster Model of Government.


According to the website of the Irish Supreme Court, ‘notwithstanding the separation of powers’, the courts exercise a constitutional function, known as Judicial Review, in reviewing the constitutionality of laws passed or are to be passed by the Oireachtas. The delegation of the law-making power of the legislature to members of the executive is sought to be controlled under the boundaries of the doctrine by a system of Checks and Balances was developed to limit these interferences to their need.


Under a parliamentary model of government, and unlike the presidential model steering American politics, the Head of the State and their Ministers come from the parliament, creating a sense of ‘Executive Dominance’ over the parliament. It is the party that has the majority of the seats in the Oireachtas that controls the government. Given that no party in the State managed to secure the majority of seats since 1997, the norm in Irish Politics has been a coalition government where multiple parties cooperate in governing the state, commanding a majority of the Dail. The fact that this model of government almost always enjoys majority support allows the government to be in control of its watchdog. This would make it logical to expect all bills brought forward by the government to be approved when desired. Professor Michael Gallagher, Head of The Department of Political Science at Trinity College Dublin criticized this by providing that “Parliament is effectively the forum in which a government proposal is fully aired”.


The prominent exception of this dominance, where the Daíl played a decisive role in the formation of government, is Taoiseach Leo Varadkar’s government, and Enda Kenny’s before it. Both operating as minority governments. This is the result of no coalition bloc agreeing on a government formation, the second option where no party manages to seize the majority of the seats. This is not an obstacle big enough to stop executive dominance in a parliament where the government enjoys control of procedural devices that allows it to block opposition bills. The ‘Money Message Approval’ from government is a requirement for enacting a bill that, directly or indirectly, affects taxes and spending. This tool helped block 50 opposition bills including the Occupied Territories Bill and a bill that aimed to legislate Cannabis for medicinal uses that had ‘indirect spending implications.


Although this minority government consisted of Fianna Gael and Independent TD’s, with Fianna Fáil on opposition, the government was reliant on a ‘Confidence and Supply’ agreement with them which, in votes of government confidence or funds, they are confined to a vote of in favour of the government or abstaining. This was arguably a measure that worked against a system of executive dominance.


Since 2013, Pre-Legislative Scrutiny, has been emphasized upon whereby the government had to submit its proposed bills to special committees for their recommendations, allowing expert legislators from parties not sitting on the cabinet to scrutinise and air their suggestions. The government is then bound by such recommendations, save in very exceptional occasion.


Delegated legislation, whereby the legislature ‘delegates’ some of its law-making powers to the concerned Minster. Although this might look like as a breach of the Separation of Powers doctrine and the sovereignty of the Oireachtas, it is accommodating for the only practicable option for implementing and enforcing the law. To ensure that this measure is not overused, and the power is not over delegated, the Principles and Policies Test of the case Cityview Press v An Comhairle Oiliúna. This test confines statutory regulation, the most prominent form of delegated legislation to a ‘mere giving effect to the principles and policies which are contained in the original statute’ by ‘completing or filling in details of the primary legislation’. An example of this is the bringing by of the restrictions that were in place to slowdown the spread of Covid-19 in April and March of 2020.


The Oireachtas enacted the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 whereby the goal behind the amendments brought by this Act was introducing “Regulations for preventing, limiting, minimising or slowing spread of Covid-19”. The act itself gives the discretion to the Minister to, for example, require certain persons to stay at home, but then former Minister of Health, Mr. Simon Harris, provides when and to whom this applies. This was explained further, by giving meaning to the principles and policies of the Act in the statutory instrument ‘Health Act 1947 (Section 31A-Temporary Restrictions) (Covid-19) Regulations 2020’. Here a list was provided on what was presented to the people as ‘essential trips.


The Judiciary is the third branch of the State that constitutes this Tripartite Separation of Powers Doctrine. It acts as an impartial vindicator of the laws enacted by the Oireachtas. Unlike the two other branches, the Judiciary is confined to acting upon only what is brought in front of it by the people or the two other branches, and not what it believes needs to be acted upon. Professor David Kenny, Constitutional Law Lecturer and Assistant Professor at Trinity College Dublin School of Law and one of the authors of the book ‘Kelly: The Irish Constitution’, argues that the remedies adopted by the judiciary to keep legislation within the boundaries of the constitution and the reluctance to use ‘more radical’ due to their fear of breaching the Separation of Powers doctrine is, in fact, is what ‘would usurp the sole and exclusive power of the Oireachtas”.


This argument was made after having the standard for the judiciary with dealing with unconstitutional legislation has become immediately striking down that legislation entirely. That approach is for the judiciary, not to be a part of amending, thus making, laws. Striking down laws as the primary remedy of Judicial Review was described by Henchy J in one of his judicial review cases as a ‘Judicial Death Certificate’.

Calling for ‘more radical’ remedies for courts when declaring a law constitutionally invalid, Professor Kenny provides that this would ‘help courts to show greater respect the legislature by not disrupting the legislative powers’. Apart from running a comparative study with other jurisdictions, Professor Kenny, asserted that the Double Construction Rule derived the Presumption of constitutionality is a way of making law, as it alters laws, ‘albeit by interpretation’. This rule states that where two or more interpretations of a statutory provision exist, and only one of which was constitutional, the courts ought to adapt the constitutional reading.


The other argument in terms of the effect of courts on the making of laws in Common Law Jurisdictions comes from the Doctrine of Precedent where once a judgment is made it attains the status of ‘Case Law’ where it becomes the law for future cases that could be established to carry a similar rationale for the decision of the court, which is known as the Ratio Decidendi.

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