IPA – Administrative Law

1. IPA – Administrative Law Lesson 5 (contd) – Lesson 6

2. Lesson 5 • Aim – get comfortable with being able to provide an overview of the non-judicial controls of delegated legislation • Assess efficacy yourself

3. Revision • Is there a need for control? • Statutory Instruments Act, 1947 • What does it do? • Suggestion:- • “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…” • Is this a good control? • Public notice etc…

4. How about the proviso from criminal law? • S.3 – where offence in SI – need formal proof • Is that a good control? • SI – perhaps more likely to be “un-noticed” • 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

5. But can’t take that too far? DPP v Collins

6. 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…

7. Tribunals • Purposes • Explain the purpose of tribunals • Explain the constitutional and legal framework in which they work • Very important aspect – “administration of justice”…exam importance there….

8. 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

9. Executive Devolution • Tribs carry on functions which in many cases were once those of Minister • Why? • State (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”

10. 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)

11. 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

12. But still subject to law • Natural and constitutional justice • Judicial Review • Appeals to court

13. 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

14. 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

15. 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.

16. 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?

17. 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.

18. 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

19. 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

20. 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.”

21. 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.

22. 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.

23. 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.

24. 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.

25. 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 …

26. 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.”

27. 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".