Judicial Review and Non-Delegation

O’Malley v An Ceann Comhairle

A TD challenged A ruling preventing a parliamentary question being asked. The Supreme Court refused to intervene. The court emphasised the separation of powers, parliamentary expertise and the constitutional right of each house to regulate its own affairs.

Maguire v Ardagh

An Oireachtas committee sought to investigate the Garda shooting of John Carthy and make findings concerning the conduct of gardai. The Supreme Court accepted that the Oireachtas possesses investigative powers. However, it held that it cannot make findings of fact or determine wrongdoing against private citizens. Doing so would trespass upon judicial functions and threaten constitutional rights, such as the right to a good name.

Callely v Moylan

This is the bridge between Maguire and later cases. Senator Callely challenged disciplinary sanctions imposed by a Seanad committee. The Supreme Court held that courts can review Oireachtas activity where constitutional rights are engaged and where review would not undermine parliamentary functions. The decision rejected the idea that all internal parliamentary matters are automatically immune from judicial review.

Kerins v McGuinness

Arguably the most important modern case on this topic, the plaintiff, a former CEO of Rehab, appeared before the Public Accounts Committee and was subjected to extensive questioning beyond the scope of what she had been told would occur. The Supreme Court held that the courts could intervene. The critical factors were the PAC exceeded its limit. The questioning went beyond the terms of invitation. And internal parliamentary remedies were ineffective. The court stressed that substantial and unlawful departures from constitutional limits can be reviewed by the judiciary.

O’Brien v Clerk of Dáil Éireann

Dennis O'Brien sought relief arising from statements made under parliamentary privilege. The Supreme Court refused to intervene. A key distinction is that this was a pure utterance case. Article 15.13 specifically protects statements made in the houses of the Oireachtas. Unlike Kerins, there is no lawful conduct outside constitutional limits. JR was unavailable,

Pigs Marketing Board

The case saw the Legislature attempt to manage agricultural economy, specifically fixing prices for pigs and bacon. They couldn’t have the Parliament sit there every week so they delegated that specific price setting power to a board. The courts accepted that the Oireachtas can delegate some power to secondary legislators like Government Ministers or agencies out of pure necessity.

Kennedy v LSI

The Law Society was allowed to regulate its own legal apprentices. The courts acknowledged the necessity of this but they needed a metric to ensure Parliament wasn’t just abdicating its responsibility.

Cityview Press Ltd v AnCO

AnCO was empowered under the Industrial Training Act to impose levies on particular industries to fund training programmes. Cityview Press challenged a levy imposed on the printing industry, arguing that AnCO was effectively making law. The Supreme Court upheld the legislation and found that The Industrial Training Act already contains the relevant legislative policy. The Act specified the objective of industrial training, authorised levies for that purpose and established the framework within which AnCO was to operate. AnCO was merely deciding the practical details of implementation. It was filling in the details rather than engaging in lawmaking.

McDaid v Sheehy

The legislation empowered the government to vary, impose, limit or terminate Customs and Excise duties. The SC held that there were effectively no meaningful policies and principles containing the exercise of power. The Government had been given authority over an entire area of taxation policy. Blayney J observed that this was far more than merely filling in details. The legislation effectively transferred legislative authority from the Oireachtas to the Executive.

Laurentiu v Minister for Justice

The Aliens Act 1935 authorised the Minister for Justice to make deportation orders in respect of aliens whenever he considered it appropriate. Laurentiu argued that this was an unconstitutional delegation of legislative power. The Supreme Court agreed. While it accepted that deportation itself Is an executive function. The legislation failed because it provided virtually no guidance regarding how that power should be exercised. The minister was left free to determine the circumstances in which deportation should occur. The Oireachtas had therefore failed to establish the relevant policies and principles.

John Grace Fried Chicken

The High Court held that the Employment Regulation Orders made under the Industrial Relations Act failed to contain sufficient principles and policies. While the statutory scheme referred generally to maintaining harmonious industrial relations, this was considered too vague to provide meaningful legislative guidance. The legislation effectively allowed employment conditions to be determined without adequate control by the Oireachtas.

Bederev v Ireland

The Misuse of Drugs Act allowed the Minister to declare additional substances to be added to the list. Bederev Argued that this effectively allowed the minister to create criminal offences and therefore amounted to unconstitutional lawmaking. The Court of Appeal agreed with this argument and held that the Act lacked adequate policies and principles. The Supreme Court reached the opposite conclusion. Charleton J examined the act as a whole, including the schedule of already prohibited substances. From this, he concluded that the legislation contained an identifiable policy. Substances could only be prohibited where they were dangerous and liable to abuse. The Minister was therefore operating within a clearly defined legislative framework rather than creating policy independently.

McGowan v Labour Court

The challenge concerned registered employment agreements under the Industrial Relations Act 1964. These agreements. Were by employers and unions and, once registered by the Labour Court, became binding throughout an entire industry, including persons who had not participated in the negotiations. The Supreme Court struck the scheme down. It found that the legislation gave private parties an extraordinary power to regulate wages, pensions, hours at work, grievance procedures, disciplinary procedures and numerous other aspects of employment. There were no meaningful policies and principles controlling how those powers should be exercised.

NECI v Labour Court

Following the defeat of the REA system in McGowan, the Oireachtas enacted a replacement mechanism involving sectoral employment orders. NECI challenged the constitutionality of that system. The Supreme Court upheld the legislation. McMenamin J explained that the policies and principles doctrine exist to ensure that delegates do not become legislators. The crucial question is whether the Oireachtas has established sufficient boundaries within which the delegated body must operate. Unlike the legislation in McGowan, the new Act required the Labour Court to consider matters such as levels of employment, competitiveness, national agreements, remuneration standards and industrial harmony. The Act therefore supplied clear principles to guide decision making.

Harvey v Minister for Social Welfare

The Minister introduced a “one pension rule” under legislation relating to social welfare payments. The Supreme Court held that the Act itself was constitutional, but that the minister had acted beyond the scope of the powers granted. The regulation was therefore Ultra Vires.

Leontjava v DPP

The Aliens Act allowed the Minister to regulate persons entering the state. The minister subsequently introduced regulations permitting immigration officers to limit the duration of a person's stay in Ireland. The Supreme Court held that this exceeded the powers granted by the statute. The Act concerned entry into the state rather than continued residence. The minister had therefore acted outside the scope of the enabling legislation.