Basic Institutions of State II

Taoiseach

The Constitution lays down details regarding the Constitution and organisation of the government and the Courts.  The head of the government is the Taoiseach or Prime Minister.  In practice, the Irish designation is invariably used.

The Taoiseach is appointed by the President on the nomination of the Dail.  The Taoiseach must be a member of the Dail. The Taoiseach is the head of government and has overall responsibility for the formulation and making of policy and the execution of law.

The Taoiseach has certain specific powers and duties under the Constitution.  He appoints government Ministers, may request a dissolution of the Dail unless he has lost the support of the majority, keeps the President informed generally on national and international matters, nominates the Taoiseach, may fire Ministers,  appoints the Attorney General, represents the country in the European Council.

The Taoiseach must resign if he loses the support of the majority of the Dail.  The appointment of all government Ministers terminate.The government continues in a caretaking role until the new government is appointed. The Taoiseach must generally resign on losing the support of the Dail.

The Government

The government is appointed by the Taoiseach. There must be at least seven and no less than fifteen government ministers which include the Taoiseach.  Ministers must be either members of the Dail or Seanad.  The Taoiseach, Tanaiste and Minister for Finance must be members of the Dail.  A maximum of two Senators may be government Ministers.

The Taoiseach assigns functions to Ministers.  The Ministers and secretaries legislation define the functions and responsibility of the Ministers.  Typically upon a change of government, there is an element of reorganisation and reassignment of departments.  Responsibilities under specific legislation may be moved from one department to another.  Departments may be reorganised.

It will be possible for a person to be appointed a Minister without having any responsibility.  This is extremely rare and unlikely to happen in modern times.

Discussions between members of the government are confidential and privileged.  Ministers must act as a collegiate body.  Therefore every Minister takes responsibility for the decisions of the government.

The Ministers are not entitled to reveal or discuss disagreements at Cabinet level.

Ministers may not be cross-examined in Court on proceedings at Cabinet meetings.  Discussions at Cabinet level cannot be disclosed before a Court or Tribunal.  Government Ministers may not conclude Cabinet discussions even voluntarily.  Courts and Tribunals cannot obtain evidence in relation to matters discussed at Cabinet table.

A constitutional amendment in 1997 provided for possibility that a Tribunal or Court of law may seek and obtain the information on Cabinet discussions if there is an overriding public interest in the case of Tribunals or it is shown to be in the interest of the administration of justice in a Court case.

In the above amendment Application must be made to a Court or Tribunal for the disclosure to be permissible.

The Courts

The Constitution sets out the basic minimums with respect to the system of Courts.  The Courts have sole and exclusive power to administer justice.  Administration of justice means determination and decision of legal disputes between individuals.

The High Court and Supreme Court are provided for under the Constitution.  The Supreme Court is the highest Court.  Its powers are confined almost exclusively to hearing Appeals on point of law.  It generally hears cases on the basis of a transcript of the High Court or lower Court evidence.

There are exceptional circumstances where Bills may be referred directly to the Supreme Court for an opinion and a review of their constitutionality before they become law.

There were eight Supreme Court Judges, a Chief Justice and seven others.  The Court can sit in groups of three, five or rarely seven.

The High Court has the power to hear all disputes.  They hear civil and criminal cases.  The constitutionality of law may only be challenged in the High Court or on Appeal in the Supreme Court.  Unless legislation otherwise provided any High Court decision may be appealed to the Supreme Court.  All High Court decisions in relation to the Constitution may be appealed to the Supreme Court.

The lower Courts, namely the Circuit Court and High Court are not directly recognised by the Constitution.  The Constitution contemplates the Court below the level of High Court and District Court will be appointed.

Judges

Judges are appointed by the President on the instructions of the government.  Since 1995 appointments have been made on the recommendation of the Judicial Appointments Advisory Board.

High Court Judges or Supreme Court Judges must be serving barristers for at least 12 years.  A Circuit Court Judge of four years may be appointed to the High Court and Supreme Court.  A Circuit or District Court Judge must have practised as a solicitor fur or barrister for at least ten years.

Judges are obliged to act impartially without fear or favour.  If there is a question that a Judge may appear to have an interest in a manner they will generally excuse themselves.

The Constitution guarantees that Judges are independent in their functions subject only to the law.  The government or Oireachtas may not interfere with ongoing proceedings.  Once a case has been decided they may not overturn the decision although they may change the law respect of other cases.

Administration of Justice

The administration of justice is an exclusive matter for the Courts.  Generally administration of justice involves a determination of a dispute in relation to legal rights.  This may include a criminal case, civil case or other types of determination.  The guilt or innocence of persons is almost invariably a judicial matter.

The matter of imposition of a penalty or punishment is exclusively one for the Courts.  However, it is legitimate that the government may cut short existing sentences or deal with matters such as parole and release.  The Minister for Justice may remit or commute sentences. The law may designate a range of penalties open to a Judge or impose mandatory penalties.

There has been a good deal of controversy regarding whether disciplinary hearings which have a severe impact on the person concerned are equivalent to judicial functions.  Most of the professional disciplinary procedure legislation allows for an ultimate confirmation of the decision by a Court.  This is done out of concern that they may otherwise be an unlawful purported judicial function.

It has been held, for example, that internal prison discipline is not judicial.  Similarly, disciplinary matters in employment and other equivalent functions do not require to be heard by a Court.

The Constitution allows limited types of judicial functions to be determined by bodies other than Courts.  It does not apply to criminal matters.  Unlimited power is one that may affect in a profound or far-reaching way the life, liberty, fortune and reputation of the persons concerned.

Many administrative bodies in the public sector may be exercised under Article 37 by none other than by Court.  Examples would include Bord Pleanala and numerous other administrative appeal bodies.  See our sections on administration.