Separation of Powers

The Constitution provides for a separation of powers. This principle is found in the Constitutions of most western democracies. The lawmaking power, the executive or administrative power and the courts are largely separated.

Each body or organ of State should not trespass on the other. This is a traditional idea dating back many hundreds of years. It is designed to prevent corruption and the abuse of power by a single body.

The separation of powers is a simplification and is subject to limitations in some cases. The separation is far from precise. The Government is elected by and, is in theory, answerable to the Oireachtas. However, in practice, the Government dominates the Oireachtas due to the system of political parties. Although independent, judges are appointed by the President on the nomination of the Government.

Basic Institutions

The main bodies of the State namely the President, the Oireachtas, the government and the Courts are given detailed recognition in the Constitution. Much of the mechanics of the four institutions are set out in detail in such a way that cannot be changed other than by referendum.

See separate section and chapters on government and the various institutions of State. The following looks at some of the constitutional framework for the institutions of State.

The Constitution requires that there must be the Oireachtas (Parliament). The Oireachtas passes and makes laws. It elects the Government. In practice, the Government dominates and controls the Oireachtas. The Government implements policies and administers laws. See the separate guides on Government.

The President is head of State and is elected directly by the people. His is to be above politics. He represents the State on formal occasions. The President is the so-called “guardian” of the Constitution. The Constitution creates a system of Courts and confers functions on them in relation to adjudicating on individual disputes.

The Courts administer justice. The High Court and Supreme Court have the exclusive jurisdiction or power to interpret the Constitution and to apply it. They hear individual disputes and apply the existing law. The Oireachtas cannot pass a law to affect the outcome of an existing dispute. Once the case is pending, it can only be decided by the Courts. The Oireachtas cannot make a retrospective change in the law.

The power to make laws is vested in the Oireachtas. Although many laws give the Executive (e.g. the relevant Minister) power to make rules. , they may be struck down as constituting lawmaking, if they go beyond filling in the gaps in the legislation. In principle, the Courts may not make new laws. They are limited to interpreting the existing laws.

The Government has exclusive executive power. The Oireachtas may not make laws which purport to make individual decisions. It may make general rules only. The Courts may not make executive decisions. The Courts may not order the State to provide facilities or undertake particular actions. They make decisions on disputes between parties regarding the application of existing laws to the facts.

Government

The Dail appoints the Taoiseach. It must approve the members of the government. The Taoiseach can appoint up the two senators as members of the governement.

Members of the government must be either ministers, TDs or senators. Up to two senators may be members of the government. This may not be the Taoiseach, Tanaiste or Minister for Finance who must be members of the Dail.

The government is responsible to the Dail in relation to its decisions and actions. A Taoiseach who loses the support of the majority of the Dail must resign unless the President agrees to dissolve the Dail. When the Taoiseach resigns the government is deemed to resign.

Oireachtas / Law Making

The Oireachtas is the legislature or law making body. The Oireachtas refers to Dail Eireann, Seanad Eireann (the lower house and upper house Senate).

The Oireachtas has sole powers to make laws. Neither the government nor the Courts can purport to make law.

Where statutory instruments or rules are made by governmental ministers or departments under the legislation they may be held to be void, if they go further than allowed. Delegated legislation refers to supplemental rules made under powers in legislation. The rules must follow the law rather than make new law. The rules must not change the law as set out and passed by the Oireachtas.

The Oireachtas very frequently gives rule making power to the government department. The Acts may give powers to ministers and others to give effect to principles and policies in legislation. They may fill in the details based on existing legal legislative policy.

In many cases, statutory instruments or rules have been found unconstitutional because they go further than implementing rules and principles. This may be the case even if the legislation does not provide rules and principles and gives specific powers. It is simply not possible for the Oireachtas to delegate its powers of legislation.

The European Union regulations made under EU necessitated by membership of the EU is not subject to this rule.

If legislation is in force, the government may not choose to fail to implement it. While there is very considerable discretion as to the extent of implementation by the government and executive a policy decision not to implement legislation would constitute an attempt to repeal the law passed by the legislature. If the legislation grants power to the on government to postpone the commencement of legislation it may effectively do so indefinitely.

Dail

There is absolute privilege against prosecution or legal suit for utterances made in either the Dail or the Seanad. TDs or Senators cannot be forced to reveal their sources of information used in parliamentary debates. Certain media coverage of the same is similarly immune. Media reports verbatim the privilege members extends to accurate media reports of the comment made.

The Constitution lays down the basic rules in relation to elections of the Dail and Seanad. Citizens over 18 who are not disqualified may vote in a Dail election. Non-citizens resident in Ireland may be afforded the right and this applies to British citizens residing in Ireland. Citizens over 21 years of age may run for the Dail. Certain persons including judges, undeclared bankrupts and members of the Defence Force are not eligible.

There must be one seat for every 20,000 to 30,000 population. Representation must be equal insofar as practicable to the State. Constituent boundaries should be reconsidered after each census or failing that it at least once every 12 years. Consistencies must have at least three seats. Voting must be by proportional representation and secret ballot.

Senate

The Senate or Seanad has 60 members. 11 are appointed directly by the Taoiseach after the general election. 6 are elected by university graduates. At present this is three from each of the National University of Ireland and Dublin University. The remaining 43 are elected by a constituency comprising county councilors, deputies and senators. There are a number of constituencies comprising panels.

Where a Bill is rejected by the Senate it can be passed into law by the Dail after a 90 day delay. It may be rejected or propose amendments which the Dail does not approve. After 90 days and within 180 days the Dail may pass a resolution deeming the Bill to have been passed.

A money Bill is one rating revenue or expenditure of money. This includes the imposition of taxes, providing for public expenditure, the supply of public money. A money Bill may only be initiated in the Dail. The Seanad can only make recommendations which the Dail may ignore.

If the Senate does not make recommendations within 21 days the Bill is deemed to have passed at the expiry of the 21 days. The chairperson of the Dail decides whether a Bill is a money Bill. The Senate can challenge the matter and the President can refer the matter to a committee of privileges. The committee consists of equal members of the House with a Supreme Court judge as chairperson.

President

The powers of the President and functions are stipulated by the Constitution. The President is deemed to take precedence over all persons in the State. However, the functions are effectively ceremonial and intended to be above politics. The President should not enter into political discourse or debate.

The basic rules regarding the President’s election, eligibility, term and nomination for election are stipulated. The powers of the President are limited and most of them are set out in the Constitution.

In most cases, the President acts on the instructions of the Dail or the Taoiseach. The President appoints the Taoiseach on the nomination of the Dail. He summons and dissolves the Dail, appoints members of governments, the attorney general and certain other officeholders on the advice of the Taoiseach.

The President acts on the instructions of the government id certain other matters including the appointment and army officers.

The Constitution allows the President to act alone in a small number of instances. The President may refuse a request to dissolve the Dail from a Taoiseach who has lost the support of the majority of Dail members.

President may refer a Bill to the Supreme Court to test its constitutionality.
President may establish committees of privileges to determine if a Bill is a monetary bill.
President may in emergency agree to shorten the time per consideration of Bill by the Senate.
President may address the nation (subject to approval by the government of the contents).
President may allow a request that a Bill be referred to a referendum which has been passed by the Dail and rejected by the Senate.

Where the President is unwilling or unable to perform functions the functions may be exercised by a presidential commission. This consists of the Chief Justice and Chairpersons of the Dail and Senate.

Separation of Powers