Transcript IPA – Administrative Law

IPA – Administrative
Law
Lesson 5 (contd) – Lesson 6
Lesson 5
Aim – get comfortable with being able to
provide an overview of the non-judicial
controls of delegated legislation
 Assess efficacy yourself

Revision


Is there a need for control?
Statutory Instruments Act, 1947
 What
does it do?
 Suggestion:
 Is
“The primary purpose of The Statutory Instruments Act, 1947
is to ensure that SI’s as defined under s.2(1) are published in
IO within 10 days…”
this a good control?
 Public notice etc…

How about the proviso from criminal law?
– where offence in SI – need formal proof
 Is that a good control?
 S.3
– perhaps more likely to be “unnoticed”
 Control in the sense that it puts more
onus on the State to make sure that
law which may feel is already
“suspicious” in pedigree is clearly
brought to attention of public
 SI
But can’t take that too far?
DPP v Collins
Houses of the Oireachtas (Laying of
Documents) Act, 1966
 Revisit notes on Cityview Press…how
important is this?
 Committees
 What do you think of them?
 The EU law issue…

Tribunals
Purposes
 Explain the purpose of tribunals
 Explain the constitutional and legal
framework in which they work

important aspect – “administration of
justice”…exam importance there….
 Very
Tribunals – what do we mean?

Term used in wide sense – decision
making bodies other than courts
 Includes
“Tribunals” in the popular sense –
Morris, Mahon etc
 Also other bodies – Bord Pleanála, deciding
officers, Censorship of Films Board, PRTB,
EAT, Equality Authority, An Bord Altranais,
Medical Council, Disciplinary Committees
Executive Devolution


Tribs carry on functions which in many cases
were once those of Minister
Why?
(Pine Valley Developments) v Dublin CC –
Henchy J was considering one of the last occasions
in which the Minister had been involved in planning
decision before An Bord Pleanala was established
 Many problems with it – Henchy J said it was “no
wonder” that power had been shifted to an
independent appeal board – away from political
pressures or “unworthy considerations”
 State
Insulated from policy?
Trib’s do implement policy – An BP is
classic example
 But – must be indepdendent
 Subject to this Act, the Commission shall
be independent in the exercise of its
functions. (s.11 ComReg Act, 2002)

Why not use Courts?








French example…
Greater flexibility
Less formal procedures
Quicker and cheaper access?
Persons with expertises – EAT (one TU rep, one
from Industry, one lawyer)
Not “bound” by previous decisions
Rules of evidence more lax
Less lawyers involved – Housing example
But still subject to law
Natural and constitutional justice
 Judicial Review
 Appeals to court

General features


Rule and area bound – i.e. decisions in a particular area
– functions clearly defined in legislation
Procedurally less bound than court





ComReg Act – ComReg can regulate own procedure subject to
Act
But some changes here – PDA, 2000 viz An BP
Residential Tenancies Act, 2004 – PRTB
Bound by rules of NJ
Independent – ComReg – s.11 ComReg Act, 2002
More likely to be inquisitorial, but not
certain on this…
 Appointments usually political but slight
changes

 An
Bord Pleanala membership is complex
 EAT is governed by statute
 ComReg – still by Minister
Constitutional Context

Article 34.1 provides that: Justice
shall be administered in courts established by
law by judges appointed in the manner provided by
this Constitution, and, save in such special and
limited cases as may be prescribed by law, shall be
administered in public.

Article 37.1 provides that: Nothing
in this Constitution shall operate to invalidate
the exercise of limited functions and powers of a
judicial nature, in matters other than criminal matters,
by any person or body of persons duly authorised by
law to exercise such functions and powers,
notwithstanding that such person or such body of
persons is not a judge or a court appointed or
established as such under this Constitution.
Rules
JUSTICE to be administered by COURTS
 But LIMITED JUDICIAL powers can be
exercised by those authorised to do so
 But NEVER in CRIMINAL MATTERS

What is a Judicial Power?
 What is the administration of justice?

McDonald v Bord na gCon - often used indicia of the
judicial power. Kenny J described them as follows:




1. A dispute or controversy as to the existence of legal
rights or a violation of the law;
2. The determination or ascertainment of the rights of
parties or the imposition of liabilities or the infliction of a
penalty;
3. The final determination (subject to appeal) of legal
rights or liabilities or the imposition of penalties;
4. The enforcement of those rights or liabilities or the
imposition of a penalty by the Court or by the executive
power of the State which is called in by the Court to
enforce its judgment;
5. The making of an order by the Court, which as a
matter of history is an order characteristic of Courts in
this country.
Tribunals of Enquiry

Goodman v Hamilton
 Finlay CJ applied McDonald criteria
 Sure, existence of dispute was there
as to the
existence of legal rights or a violation of the law
 5th point – Tribunal could not make a order which
usually one associated with court
 Just a fact-finding operations

Haughey v Moriarty
 Hamilton
CJ (see above) said tribunals fulfill none of
the fundamental characteristics of admin of J
Disciplinary Hearings

Re the Solicitors Act, 1954
 Committee
empowered to strike a name off the rolls
and order sol to pay costs or part of costs of inquiry
 HC held it a limited admin of justice
 Admin of J – i.e. was going to make a decision in a
final manner and if necessary that would be enforced
by the State
 SC added the rider that this historically had been a
power for the courts

But was it really limited? SC disagreed
with HC: The
test as to whether a power is or is not
"limited" in the opinion of the Court, lies in the
effect of the assigned power when exercised.
If the exercise of the assigned powers and
functions is calculated ordinarily to affect in
the most profound and far-reaching way the
lives, liberties, fortunes or reputations of those
against whom they are exercised they cannot
properly be described as "limited.”
M v Medical Council


Medical Practitioners Act, 1978 allegations of
professional misconduct are investigated by a
Fitness to Practice Committee who reports to the
Medical Council.
Section 46 provides that, having considered that
report, the Council may decide that the
practitioner's name should be erased from the
general register of medical practitioners and, in
that event, the practitioner may apply to the High
Court under s. 46 for an order cancelling the
decision of the Council; if no such application is
made by the practitioner, the Council may apply
to the High Court for an order affirming its
decision.

An admin of justice?
 Finlay
P
very striking difference” existed between this case
and Re the Solicitors Act, 1954 insofar there was
 no power to erase the name from the register
 nor was there power to suspend a practitioner from
practice
 or attach conditions to the continuation of his
practice
 or to make him pay compensation or award costs
against him.

 Thus
he held that they were not judicial
powers and if they were they were limited in
nature.
K v An Bord Altranais

The Nurses Act, 1985 contained powers very
similar to under the Medical Practitioners Act,
1978. In hearing the appeal from the High Court
the Supreme Court commented that had the
power to erase from the register been invested
to the respondent Board, there would have been
a constitutional problem. The case essentially
confirms that it is in the High Court where the
effective decision leading to an erasure or
suspension of the operation of registration is to
be made.
Keady v Commissioner of an
Garda Siochánna
Garda Síochána (Discipline) Regulations,
1971
 Keady was, essentially, accused of making
false claims for hours worked and when an
inquiry was held, it reported to the
respondent who decided to dismiss him
from the force.


O’Flaherty J argued that the Re the Solicitors Act, 1954 was
“exceptional” and “perhaps, anomalous” and “owes a great deal to
the historic fact that judges always were responsible for the decision
to strike solicitors off the roll …”

Very influenced by the need for the Gardai to have effective disciplinary
prcoceedings:-

The force could not properly carry out its essential function of
preserving law and order unless there was an entitlement in the
commissioner to enforce discipline, which necessarily involves the
ultimate sanction of dismissal from the force for sufficiently grave
breaches of discipline …

In respect of K he argued that:
The K. case was concerned with the taking away or the suspension of a
professional qualification; it is to be distinguished from this case
because while a garda who is dismissed loses his immediate
employment he does not lose any qualification by virtue of his dismissal
…
Melton Enterprises v Censorship of
Publications Board


Not about disciplinary proceedings – but interesting
comment on Re Sol Act case
“It is clear from the judgment of Kingsmill Moore J. that
two factors led to the court's conclusion that the
provisions were constitutionally invalid and not saved by
Article 37.1. The first was the consequence for a solicitor
of being struck off the rolls, which was described as a
sanction of such severity that, in its consequences, it
could be much more serious than a term of
imprisonment. The second was that the act of striking
solicitors off the rolls had always been reserved to
judges.”

No such considerations arise in the present case.
Undoubtedly, a determination by the first respondent that
a person or body has published an indecent or obscene
periodical is one which could adversely affect the
reputation of the publisher. The same could be said of
many other decisions which are legitimately made by
bodies other than courts which are entrusted by the
Oireachtas with powers and functions of a judicial
nature. The specific consequence which follows - a
ban on the sale or distribution of the publications for
a limited period - is far removed in gravity from the
disqualification of a person from carrying on a trade
or profession. The effects of the first respondent's
functions, although in some instances at least of a
serious nature, cannot in the view of the court, be
described as"profound and far reaching".