Separation Of Powers Notes

The Judicial Power and the Legislature

Buckley v Attorney General (SC 1947)

Facts

1. The honorary treasurers of Sinn Féin in 1924 entrusted the central funds of the Party to the court.

2. The contemporary incarnation of the party began an action against the Attorney General looking to reclaim the funds.

3. The Oireachtas passed the Sinn Féin Funds Act to stop the litigation and redistribute the money to charitable cause.

Issue

• Judicial Power – Interference with a seised case

Judgment (O'Byrne J)

• The effect of Article 6 (Separation of Powers) and the Articles setting out the rights and duties of the courts is to vest in the courts the sole right to hear justiciable controversies between citizens and between citizens and the State.

• In deciding the dispute between the parties, the legislation in this case was an impermissible interference by the Oireachtas in the judicial domain.

The State (Divito) v Arklow UDC (SC 1984)

Facts

1. The applicant applied for a licence to convert his premises into an Amusement centre, which he could only get while Part III of the Gaming and Lotteries Act 1956 remained in force in his area.

2. This part of the Act only had effect when a resolution bringing it into effect was passed by a local Council, which the defendants in this case had done.

3. Upon announcing his intention to re-apply for a notice, the Council passed a resolution rescinding the effect of Part III in respect of a number of areas of the town, including where the applicant had his premises.

Issue

• Judicial Power – Where court is not seised of the case

Judgment

1. Henchy J

   • As the case was neither pending nor seised by the District Court when the resolution was passed, thus this was not an impermissible interference within the judicial sphere.

2. Griffin J (concurring)

3. Hederman J (concurring)

National and Provincial Building Society v UK (ECtHR 1997)

Facts

1. Transitory regulations were adopted to prevent certain building societies from getting a windfall gain from changes to the taxation system.

2. These regulations were successfully challenged by judicial review and as a result a number of building societies applied for repayment of taxes extracted by the transitory regulations.

3. While their cases were pending, Parliament passed a statute retrospectively validating the regulations, except to building societies which had brought proceedings before a certain date (which applied only to the building society which had orginally challenged the regulations)

Issue

• Judicial Power – Legislation of General Effect

Judgment

• The Constracting State has a wide margin of appreciation in issues of taxation.

• All the proceedings, whether the original proceedings for judicial review, or the later proceedings for restitution alone, formed one group of proceedings which related to private law claims for the return of moneys illegally collected – Article 6(1) is applicable.

• Any limitation on the right of access to the courts must not impair the essence of the right, it must pursue a legitimate aim and the means used must be proportionate to the goods to be achieved.

• The applicant societies were opposed to Parliament's desire to implement the tax regime and decided to exploit technical defects in the legislation and regulations used to bring that into effect.

• While the court should scrutinise retrospective legislation very closely, the legislation in this case could have been anticipated by the applicants and was enacted to resolve a problem in the public interest.

Dissenting Judgment

• Taking Article 6(1) in conjunction with Article 14, the principle of the rule of law requires that any interference with an individual's recourse to justice by retrospective legislation be justified by exceptional circumstances.

• No such justification existed in this case.

The State (O'Rourke) v Kelly (SC 1980)

Facts

1. The respondent issued a warrant for the a housing authority to repossess the applicant's house.

2. The applicant challenged the Statute under which the warrant was issued, claiming that it robbed the District Court of any real discretion in whether it issued the warrant.

Issue

• Judicial Power – Requiring an order

Judgment (O'Higgins CJ)

• The warrant must be issued by the District Court judge, only when he is satisfied that the circumstances laid out in the Act are proved.

• Thus the Statute is valid – requiring the order to be made when the District Court is satisfied as to the existence of certain circumstances.

The State (McEldowney) v Kelleher (HC 1982, SC 1983)

Facts

1. The prosecutor was seeking a collection permit and was refused.

2. The relevant statute required the District Court to refuse such an application where a chief superintendent of the Gardaí, where that person makes a statement on oath that the money collected is to be used for an unlawful object or illegal organisation.

3. The prosecutor challenged this as being an unlawful interference with the administration of justice.

Issue

• Judicial Power – Requiring an order

High Court Judgment (Costello J)

• Having set up a system to regulate the issuing of collection permits, the Oireachtas was under no obligation to provide for a system of appeals.

• When the statement is made, this is not a determination of the facts or merits of the case – it merely renders the case non-justiciable.

Supreme Court Judgment (Walsh J)

• The relevant section did not remove the issue from the jurisdiction of the court – if the Oireachtas wished to effect that it would have said so clearly rather than leaving the statement to be made in a public hearing on the merits.

• In this case the statute creates a justiciable controversy and then requires it to be decided in a certain way – the latter makes it unconstitutional.

O'Reilly v DPP (HC 1983)

Facts

1. The accused challenged the power of the DPP in having his case tried in the Special Criminal Court as an unconstitutional infringement on the judicial domain.

Issue

• Judicial Power and the Legislature

Judgment (Carroll J)

• The power of the DPP to...

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