Course PacingCourse Pacing

Started on Sept 20Started on Sept 20thth – done 6 – done 6 lectures (5 really)lectures (5 really)

This term ends on Tues 18 Dec - so This term ends on Tues 18 Dec - so we end on 13we end on 13thth Dec - 7 more classes Dec - 7 more classes including todayincluding today

Then Jan 7Then Jan 7thth - April 3 - 12 more - April 3 - 12 more classes classes

19 in total left19 in total left

Topics RemainingTopics Remaining

Finishing topic 5 – Christmas should Finishing topic 5 – Christmas should see the end of topic 12see the end of topic 12

18 topics left after – some need less 18 topics left after – some need less time than otherstime than others

Methodology starting to shift now….Methodology starting to shift now…. Class-room essaysClass-room essays Case-based reading – focussed in classCase-based reading – focussed in class Aim to dedicate some in-class time to Aim to dedicate some in-class time to

exam preparation, more guided study exam preparation, more guided study etc…etc…

Lesson 5Lesson 5

Non Judicial Controls of Non Judicial Controls of Delegated LegislationDelegated Legislation

Use of SI’sUse of SI’s

1991 – 3941991 – 394 2001 – 6582001 – 658 2005 – 9162005 – 916 Why? Increase in regulation / EU Why? Increase in regulation / EU

lawlaw

PurposePurpose

Be able to provide an outline of non-Be able to provide an outline of non-judicial controls of delegated judicial controls of delegated legislation. legislation.

Be able to form a own view on Be able to form a own view on whether you think they are effective whether you think they are effective or not or could be improved. or not or could be improved.

New Model Regulation New Model Regulation and SI’sand SI’s

The Commission for Communications Regulation The Commission for Communications Regulation (ComReg) (ComReg)

The Commission for Communications Regulation The Commission for Communications Regulation (ComReg) was established under the Communications (ComReg) was established under the Communications Regulation Act, 2002 and set up on 1 December 2002. Regulation Act, 2002 and set up on 1 December 2002. It currently operates under three commissioners - It currently operates under three commissioners - Isolde Goggin (Chairperson), John Doherty and Mike Isolde Goggin (Chairperson), John Doherty and Mike Byrne.Byrne.

ComReg is made responsible for the regulation of the ComReg is made responsible for the regulation of the electronic communications sector electronic communications sector (telecommunications, radiocommunications and (telecommunications, radiocommunications and broadcasting transmission) and the postal sector broadcasting transmission) and the postal sector

Specifically empowered to Specifically empowered to pass legislationpass legislation in the form in the form of statutory instruments. For example, it recently of statutory instruments. For example, it recently passed the Wireless Telegraphy Act, 1926 (Section 3) passed the Wireless Telegraphy Act, 1926 (Section 3) (Exemption of Short Range Devices) (Amendment) (Exemption of Short Range Devices) (Amendment) Order, 2006 and since 1997 has passed a vast amount Order, 2006 and since 1997 has passed a vast amount of regulatory instruments which previously would of regulatory instruments which previously would have been an Ministerial function.have been an Ministerial function.

Controls?Controls?

What could we have?What could we have? Courts?Courts? Set of rules about what can and cannot Set of rules about what can and cannot

be in a SI?be in a SI? Legislative annulment power?Legislative annulment power? Legislative accountability?Legislative accountability? Should it be strong accountability or Should it be strong accountability or

formal? – i.e. simply requiring the formal? – i.e. simply requiring the legislature to “rubber stamp” an SI?legislature to “rubber stamp” an SI?

Statutory Instruments Statutory Instruments Act, 1947Act, 1947

Section 1Section 1

the expression "statutory the expression "statutory instrument" means an order, instrument" means an order, regulation, rule, scheme or bye-law regulation, rule, scheme or bye-law made in exercise of a power made in exercise of a power conferred by statute.conferred by statute.

Section 2Section 2 Act applies “primarily” to SI made after Jan Act applies “primarily” to SI made after Jan

11stst 1948 by 1948 by (i) the President,(i) the President, (ii) the Government,(ii) the Government, [iii) any member of the Government,[iii) any member of the Government, (iv) any Parliamentary Secretary,(iv) any Parliamentary Secretary, (v) any person or body, whether corporate or (v) any person or body, whether corporate or

unincorporate, exercising throughout the State unincorporate, exercising throughout the State any function of government, or discharging any function of government, or discharging throughout the State any public duties in relation throughout the State any public duties in relation to public administration – (call this “V” for later)to public administration – (call this “V” for later)

(vi) any authority having for the time being (vi) any authority having for the time being power to make rules of court, andpower to make rules of court, and

Also the SI must fulfill either of the Also the SI must fulfill either of the followingfollowing required by statute to be laid before both or required by statute to be laid before both or

either of the Houses of the Oireachtas, oreither of the Houses of the Oireachtas, or is of such a character as affects the public is of such a character as affects the public

generally or any particular class or classes generally or any particular class or classes of the public (call this “X” for later)of the public (call this “X” for later)

And must not be a statutory instrument And must not be a statutory instrument which is required by a statute to be which is required by a statute to be published in the published in the Iris OifigiúilIris Oifigiúil..

Attorney General’s RoleAttorney General’s Role

If the Attorney-General certifies in writing If the Attorney-General certifies in writing that, in his opinion, a particular person or that, in his opinion, a particular person or body is an authority of the class mentioned in body is an authority of the class mentioned in “V” such person or body shall be deemed…to “V” such person or body shall be deemed…to be an authority of that classbe an authority of that class

If the Attorney-General certifies in writing If the Attorney-General certifies in writing that, in his opinion, statutory instruments of a that, in his opinion, statutory instruments of a particular class (defined in such manner and particular class (defined in such manner and by reference to such things as the Attorney-by reference to such things as the Attorney-General thinks proper) are “X” – so they are General thinks proper) are “X” – so they are deemed to bedeemed to be

Section 2 also gives the AG Section 2 also gives the AG power to exclude SI’s from power to exclude SI’s from the application of the Act the application of the Act by reason of their “local or by reason of their “local or personal application” or its personal application” or its “temporary operation” or “temporary operation” or “limited function” or for “limited function” or for any other reasonany other reason

RulesRules

S.1 Statutory Instruments S.1 Statutory Instruments (Amendment) Act, 1955(Amendment) Act, 1955 Copy of SI published in IO and sent Copy of SI published in IO and sent

within 10 days to listed libraries – no within 10 days to listed libraries – no effect of non-compliance in civil effect of non-compliance in civil proceedingsproceedings

But s.3 of the 1947 Act:-But s.3 of the 1947 Act:-

S.3 of the 1947 ActS.3 of the 1947 Act If charged with the offence of contravening If charged with the offence of contravening a a

provision in a statutory instrument provision in a statutory instrument the prosecutor does not prove that, at the date of the prosecutor does not prove that, at the date of

the alleged contravention, the alleged contravention, notice of the making notice of the making of the said statutory instrument had been of the said statutory instrument had been published in the published in the Iris OifigiúilIris Oifigiúil,,

the charge shall be dismissed, unless the the charge shall be dismissed, unless the prosecutor satisfies the Court that at the said prosecutor satisfies the Court that at the said date reasonable steps had been taken for the date reasonable steps had been taken for the purpose of bringing the purport of the said purpose of bringing the purport of the said instrument to the notice of the public or of instrument to the notice of the public or of persons likely to be affected by it or of the persons likely to be affected by it or of the defendant.defendant.

DPP v CollinsDPP v Collins

Drunk Driving (offence provided for by Drunk Driving (offence provided for by STATUTE)and s.1 of the Documentary STATUTE)and s.1 of the Documentary Evidence Act, 1925Evidence Act, 1925 Meant that prima facie evidence of Regulations Meant that prima facie evidence of Regulations

to be given by the production of a copy of the to be given by the production of a copy of the Iris Oifigiuil purporting to contain them or by Iris Oifigiuil purporting to contain them or by the production of a copy of the Regulations the production of a copy of the Regulations Printed under the superintendence or authority Printed under the superintendence or authority of and published by the Stationery Officeof and published by the Stationery Office

So prove SI in Crim chg by IO’s notice or proper So prove SI in Crim chg by IO’s notice or proper copy copy

This did not occur – could it win the This did not occur – could it win the day?day? such self-induced judicial blindness would such self-induced judicial blindness would

bring the administration of the law into bring the administration of the law into disrepute, I reluctantly but unavoidably disrepute, I reluctantly but unavoidably categorize this defence point as worthless. categorize this defence point as worthless. Whatever thin technicality it represents is Whatever thin technicality it represents is outweighed by the fact that the due outweighed by the fact that the due administration of justice requires that why administration of justice requires that why the making of the the making of the Regulations is so Regulations is so notorious, well established, embedded in notorious, well established, embedded in judicial decisions, and susceptible of judicial decisions, and susceptible of incontrovertible proof, a judge could not incontrovertible proof, a judge could not but take judicial notice of their making. but take judicial notice of their making.

Interpretation Act, 1937Interpretation Act, 1937 S.10 – NOT 11S.10 – NOT 11 Allows Minister to make regulations before Allows Minister to make regulations before

an Act comes into forcean Act comes into force Special circumstances – where Act not yet in Special circumstances – where Act not yet in

force but passed – i.e. “will come into effect”force but passed – i.e. “will come into effect” if such Act confers a power to make or do, for the if such Act confers a power to make or do, for the

purposes of such Act or such enactment (as the purposes of such Act or such enactment (as the case may be), any instrument, act, or thing the case may be), any instrument, act, or thing the making or doing of making or doing of which is necessary or which is necessary or expedient to enable such Act or enactment to have expedient to enable such Act or enactment to have full force and effect immediately upon its coming full force and effect immediately upon its coming into operationinto operation, such power may, subject to any , such power may, subject to any restrictions imposed by such Act, be exercised at restrictions imposed by such Act, be exercised at any time after the passing of such Act. any time after the passing of such Act.

Anulling PowerAnulling Power

Houses of the Oireachtas (Laying of Houses of the Oireachtas (Laying of Documents) Act, 1966Documents) Act, 1966 SI’s need to be laid before houses of O SI’s need to be laid before houses of O

for 21 daysfor 21 days Annulling resolution can be passedAnnulling resolution can be passed Allows chance for discussionAllows chance for discussion

Committee’sCommittee’s

1948 onwards – joint Oireachtas / 1948 onwards – joint Oireachtas / Seanad CommitteesSeanad Committees

Previously joint committee on Previously joint committee on european legislationeuropean legislation

Required to report legislation to Oir Required to report legislation to Oir for various specified reasonsfor various specified reasons

Post-1997Post-1997

Situation changed drasticallySituation changed drastically Model is committee’s tracking the Model is committee’s tracking the

departments – i.e. same namedepartments – i.e. same name Select and Joint Committee’sSelect and Joint Committee’s Select deal with primarySelect deal with primary Joint deal with delegatedJoint deal with delegated More powers for joint committee…but More powers for joint committee…but

less formal involvement in legislative less formal involvement in legislative processprocess

EU Law IssueEU Law Issue

S.2 of the European Communities S.2 of the European Communities Act, 1972 – acts adopted by EU Act, 1972 – acts adopted by EU institutions part of domestic lawinstitutions part of domestic law

S.3S.3 Minister may make regulations for Minister may make regulations for

purposes of giving s.2 full effectpurposes of giving s.2 full effect Such regulations could include Such regulations could include

provisions provisions amendingamending other law – i.e. other law – i.e. amending primary legislationamending primary legislation

Unconstitutional?Unconstitutional?

Meagher v Minister for AgricultureMeagher v Minister for Agriculture Reading exercise….Reading exercise….

What does it leave open?What does it leave open?

S.3 is constitutional…fineS.3 is constitutional…fine But remember the fight was on that But remember the fight was on that

particular section…particular section… Remember the “blame game”…we Remember the “blame game”…we

can’t blame the legislature for can’t blame the legislature for creating the creating the powerpower, but are there , but are there times we could blame the Minister times we could blame the Minister for acting for acting ultra vires ultra vires the power?the power?

Maher v Minister for Maher v Minister for AgricultureAgriculture

Regulation of milk quotas pursuant to a Regulation of milk quotas pursuant to a Council Regulation which permitted Council Regulation which permitted Member States to exercise Member States to exercise discretionary powers to re-organise discretionary powers to re-organise such quotas. Ireland did this in the such quotas. Ireland did this in the European Communities (Milk Quota) European Communities (Milk Quota) Regulations, 2000 one effect of which Regulations, 2000 one effect of which was to do away with the previous was to do away with the previous entitlement of farmers to sell quotas on entitlement of farmers to sell quotas on with their land with their land

Keane CJ concluded that Keane CJ concluded that MeagherMeagher could not support the view that, in could not support the view that, in cases where it is convenient or cases where it is convenient or desirable for the community desirable for the community measure to be implemented in the measure to be implemented in the form of a regulation rather than an form of a regulation rather than an Act, the making of the regulation Act, the making of the regulation can for that reason alone be can for that reason alone be regarded as "necessitated" by the regarded as "necessitated" by the obligations of membership. obligations of membership.

Thus, the test became the “EU version” of Thus, the test became the “EU version” of the principles and policies test. In the the principles and policies test. In the instant case it was held that whereas a instant case it was held that whereas a discretion existed it was a discretion discretion existed it was a discretion circumscribed by the objectives of the circumscribed by the objectives of the scheme authorising it, and the choices as to scheme authorising it, and the choices as to policy left to the member states in the policy left to the member states in the operation of the milk quota scheme operation of the milk quota scheme throughout the European Union, had been throughout the European Union, had been reduced almost to vanishing point. Thus reduced almost to vanishing point. Thus there was no unconstitutional delegation of there was no unconstitutional delegation of power.power.

What does this mean?What does this mean?

Well, it means the “system” is saved Well, it means the “system” is saved from the point of view of the legislature – from the point of view of the legislature – i.e. s.3 is fine.i.e. s.3 is fine.

But it doesn’t mean that the Minister is But it doesn’t mean that the Minister is always acting within his powers in always acting within his powers in making SI’s implementing EU legislationmaking SI’s implementing EU legislation

If the EU legislation does not contain If the EU legislation does not contain sufficient principles and policies…then sufficient principles and policies…then he is acting UV s.3!he is acting UV s.3!