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Course Pacing. Started on Sept 20 th – done 6 lectures (5 really) This term ends on Tues 18 Dec - so we end on 13 th Dec - 7 more classes including today Then Jan 7 th - April 3 - 12 more classes 19 in total left. Topics Remaining.

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course pacing
Course Pacing
  • Started on Sept 20th – done 6 lectures (5 really)
  • This term ends on Tues 18 Dec - so we end on 13th Dec - 7 more classes including today
  • Then Jan 7th - April 3 - 12 more classes
  • 19 in total left
topics remaining
Topics Remaining
  • Finishing topic 5 – Christmas should see the end of topic 12
  • 18 topics left after – some need less time than others
  • Methodology starting to shift now….
    • Class-room essays
    • Case-based reading – focussed in class
    • Aim to dedicate some in-class time to exam preparation, more guided study etc…
lesson 5

Lesson 5

Non Judicial Controls of Delegated Legislation

use of si s
Use of SI’s
  • 1991 – 394
  • 2001 – 658
  • 2005 – 916
  • Why? Increase in regulation / EU law
  • Be able to provide an outline of non-judicial controls of delegated legislation.
  • Be able to form a own view on whether you think they are effective or not or could be improved.
new model regulation and si s
New Model Regulation and SI’s
  • The Commission for Communications Regulation (ComReg)
  • The Commission for Communications Regulation (ComReg) was established under the Communications Regulation Act, 2002 and set up on 1 December 2002. It currently operates under three commissioners - Isolde Goggin (Chairperson), John Doherty and Mike Byrne.
  • ComReg is made responsible for the regulation of the electronic communications sector (telecommunications, radiocommunications and broadcasting transmission) and the postal sector
  • Specifically empowered to pass legislation in the form of statutory instruments. For example, it recently passed the Wireless Telegraphy Act, 1926 (Section 3) (Exemption of Short Range Devices) (Amendment) Order, 2006 and since 1997 has passed a vast amount of regulatory instruments which previously would have been an Ministerial function.
  • What could we have?
    • Courts?
    • Set of rules about what can and cannot be in a SI?
    • Legislative annulment power?
    • Legislative accountability?
    • Should it be strong accountability or formal? – i.e. simply requiring the legislature to “rubber stamp” an SI?
statutory instruments act 1947
Statutory Instruments Act, 1947
  • Section 1
  • the expression "statutory instrument" means an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute.
Section 2
  • Act applies “primarily” to SI made after Jan 1st 1948 by
    • (i) the President,
    • (ii) the Government,
    • [iii) any member of the Government,
    • (iv) any Parliamentary Secretary,
    • (v) any person or body, whether corporate or unincorporate, exercising throughout the State any function of government, or discharging throughout the State any public duties in relation to public administration – (call this “V” for later)
    • (vi) any authority having for the time being power to make rules of court, and
Also the SI must fulfill either of the following
    • required by statute to be laid before both or either of the Houses of the Oireachtas, or
    • is of such a character as affects the public generally or any particular class or classes of the public (call this “X” for later)
  • And must not be a statutory instrument which is required by a statute to be published in the Iris Oifigiúil.
attorney general s role
Attorney General’s Role
  • If the Attorney-General certifies in writing that, in his opinion, a particular person or body is an authority of the class mentioned in “V” such person or body shall be deemed…to be an authority of that class
  • If the Attorney-General certifies in writing that, in his opinion, statutory instruments of a particular class (defined in such manner and by reference to such things as the Attorney-General thinks proper) are “X” – so they are deemed to be
Section 2 also gives the AG power to exclude SI’s from the application of the Act by reason of their “local or personal application” or its “temporary operation” or “limited function” or for any other reason
  • S.1 Statutory Instruments (Amendment) Act, 1955
    • Copy of SI published in IO and sent within 10 days to listed libraries – no effect of non-compliance in civil proceedings
  • But s.3 of the 1947 Act:-
s 3 of the 1947 act
S.3 of the 1947 Act
  • If charged with the offence of contravening a provision in a statutory instrument
  • the prosecutor does not prove that, at the date of the alleged contravention, notice of the making of the said statutory instrument had been published in the Iris Oifigiúil,
  • the charge shall be dismissed, unless the prosecutor satisfies the Court that at the said date reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public or of persons likely to be affected by it or of the defendant.
dpp v collins
DPP v Collins
  • Drunk Driving (offence provided for by STATUTE)and s.1 of the Documentary Evidence Act, 1925
    • Meant that prima facie evidence of Regulations to be given by the production of a copy of the Iris Oifigiuil purporting to contain them or by the production of a copy of the Regulations Printed under the superintendence or authority of and published by the Stationery Office
    • So prove SI in Crim chg by IO’s notice or proper copy
This did not occur – could it win the day?
    • such self-induced judicial blindness would bring the administration of the law into disrepute, I reluctantly but unavoidably categorize this defence point as worthless. Whatever thin technicality it represents is outweighed by the fact that the due administration of justice requires that why the making of the Regulations is so notorious, well established, embedded in judicial decisions, and susceptible of incontrovertible proof, a judge could not but take judicial notice of their making.
interpretation act 1937
Interpretation Act, 1937
  • S.10 – NOT 11
  • Allows Minister to make regulations before an Act comes into force
  • Special circumstances – where Act not yet in force but passed – i.e. “will come into effect”
    • if such Act confers a power to make or do, for the purposes of such Act or such enactment (as the case may be), any instrument, act, or thing the making or doing of which is necessary or expedient to enable such Act or enactment to have full force and effect immediately upon its coming into operation, such power may, subject to any restrictions imposed by such Act, be exercised at any time after the passing of such Act.
anulling power
Anulling Power
  • Houses of the Oireachtas (Laying of Documents) Act, 1966
    • SI’s need to be laid before houses of O for 21 days
    • Annulling resolution can be passed
    • Allows chance for discussion
committee s
  • 1948 onwards – joint Oireachtas / Seanad Committees
  • Previously joint committee on european legislation
  • Required to report legislation to Oir for various specified reasons
post 1997
  • Situation changed drastically
  • Model is committee’s tracking the departments – i.e. same name
  • Select and Joint Committee’s
  • Select deal with primary
  • Joint deal with delegated
  • More powers for joint committee…but less formal involvement in legislative process
eu law issue
EU Law Issue
  • S.2 of the European Communities Act, 1972 – acts adopted by EU institutions part of domestic law
  • S.3
    • Minister may make regulations for purposes of giving s.2 full effect
    • Such regulations could include provisions amending other law – i.e. amending primary legislation
  • Meagher v Minister for Agriculture
    • Reading exercise….
what does it leave open
What does it leave open?
  • S.3 is constitutional…fine
  • But remember the fight was on that particular section…
  • Remember the “blame game”…we can’t blame the legislature for creating the power, but are there times we could blame the Minister for acting ultra vires the power?
maher v minister for agriculture
Maher v Minister for Agriculture
  • Regulation of milk quotas pursuant to a Council Regulation which permitted Member States to exercise discretionary powers to re-organise such quotas. Ireland did this in the European Communities (Milk Quota) Regulations, 2000 one effect of which was to do away with the previous entitlement of farmers to sell quotas on with their land
Keane CJ concluded that Meagher could not support the view that, in cases where it is convenient or desirable for the community measure to be implemented in the form of a regulation rather than an Act, the making of the regulation can for that reason alone be regarded as "necessitated" by the obligations of membership.
Thus, the test became the “EU version” of the principles and policies test. In the instant case it was held that whereas a discretion existed it was a discretion circumscribed by the objectives of the scheme authorising it, and the choices as to policy left to the member states in the operation of the milk quota scheme throughout the European Union, had been reduced almost to vanishing point. Thus there was no unconstitutional delegation of power.
what does this mean
What does this mean?
  • Well, it means the “system” is saved from the point of view of the legislature – i.e. s.3 is fine.
  • But it doesn’t mean that the Minister is always acting within his powers in making SI’s implementing EU legislation
  • If the EU legislation does not contain sufficient principles and policies…then he is acting UV s.3!