Does the Supreme Court's Decision in Cityview Press vs. An Comhairle Oiliuna Have Any Enduring Relevance in a Modern Regulatory Society?

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  • Topic: Law, Legislature, Delegated legislation
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  • Published : April 29, 2013
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Does the decision of the Supreme Court in Cityview Press v. An Comhairle Oiliuna [1980] IR 381 (and ensuing case-law) have any enduring relevance in a modern regulatory society?

A study into the case of Cityview Press v. An Comhairle Oiliuna highlights the difficulties enshrined in delegated legislation and the problems associated with it and the matters of conflict in create in relation to the Irish Constitution. Article 15.2 establishes the position of the Constitution in relation to delegated legislation, in that it states; (1) “The sole legislative power of making laws for the State is hereby vested in the Oireachtas; No other legislative authority has the power to make laws for the State.” In addition to this, provisions may be made “…by law for the creation or recognition of subordinate legislatives and for the powers and functions of these legislatures.” (Article 15.2.2) Article 15.2 gives an indication of the separation of powers in force in the Irish government, and the provision for this separation in the constitution acts as a safeguard on Irish legislation. It serves to protect the function of the Oireachtas as laid down in the constitution, preventing the passage of legislation passed down through undemocratic means. It restricts the powers of Ministers and other authorities to make statutory instruments or subordinate legislation. What this essay aims to examine is the relevant case-law, the application of Article 15.2, its effects on legislature, and the dominant factors involved when negotiating the minefield of delegated legislation.

It is a fact of modern political life that delegated legislation is unavoidable. This is due partly to the manner of the amount of detail involved and with which certain matters must be regulated, a degree of detail well beyond what can, with convenience, be encompassed inside statutory legislation. As noted by Keane J; “ The increasing recourse to delegated legislation throughout this century in this and the neighboring jurisdictions has given rise to an understandable concern that parliamentary democracy is being stealthily subverted and crucial decision making powers vested in unelected officials.” In essence, the power to ‘make law’ has been passes into the hands of those who have not been constitutionally granted the right. The world that we live in is constantly changing, and legislation needs to be able to reflect this in order to evolve. However, the dividing line between administration and legislation must be maintained in order to preserve the separation of powers. Therefore there must be strict guidelines adhered to in order to create a uniform approach to delegated legislation. These guidelines can be found in the case-law and jurisprudence of the cases which call into question the constitutionality of particular legislation in accordance with Article 15.2.1.

The forerunning Irish case in relation to the ‘unconstitutional’ delegation of power is the case of Cityview v. An Co. An Comhairle Oiliuna was established by the Oireachtas to regulate training in the industrial sectors, and under Section 21 of the Industrial Training Act 1967; was given the power to impose a levy on employers in certain fields of industry. Cityview Press appealed this, with allegations that the proceedings were an unconstitutional delegation of legislative power to an executive body. This was in light of the fact that although power had been given to An Co. by the Oireachtas to impose a levy, there was very little in the way of regulation or direction in advising for the actual amount of the levy. It was because of this absence in Cityview that the ‘principles and policies test’ was established by O’Higgins C.J. “In the view of this court, the test is whether that which is challenged as an unconstitutional delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute...
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