A bit like democracy, motherhood and apple pie, everyone is in favour of the separation of powers. But how does it work in Ireland and what happens when there’s a conflict between the branches of state power? What should happen?
Though constitutional lawyers will claim that it is enshrined in the constitution, and certainly judges refer to it frequently, the design of the separation between the executive and legislative branches in Ireland is such that we can only assume the drafters of the constitution wanted a strong executive unencumbered by a legislature. The legislature is one in name only as effectively all legislation comes from the executive. The legislature’s powers are neither separate nor significant. The independence of the judiciary is more secure, because even though the executive chooses the members of the judiciary the executive has no real way to influence judges once appointed.
The idea of a separation of powers comes from a presidential system where the legislature makes laws that the executive enacts and the judiciary enforces. All this is usually under basic laws laws that are rigid and difficult to change – a constitution – which also sets out which institution can act. In parliamentary systems this is less pure – but thought to exist nonetheless.
Problems arise when there’s a disagreement about which branch is entitled to act in what way. Often we see the executive behaviour censured in the courts because the court says it was acted beyond its powers – ultra vires. The courts have been quick to assert what are judicial functions and what are executive or legislative ones. So the Oireachtas was upbraided for its inquiry to the killing of John Carty in Abbeylara. This decision led to the Houses of the Oireachtas abandoning inquiries, even though they are seen as an important tool of accountability in virtually every legislature in the world.
Ultimately if there is a disagreement on the separation of powers the judiciary has the job of deciding who is right. This is problematic for two reasons. One, the judiciary has shown itself to be unwilling to interfere in the relationship between the government and the Dáil to uphold the rights of the Dáil to hold the government to account (for instance O’Malley v. Ceann Comhairle). In the recent Doherty judgement, the High Court showed itself not to understand that there is a legal separation between the government and the Dáil. Second, it seems unfair that one institution has all the power to adjudicate over disputes between it and the others. So if the executive doesn’t agree that it cannot make a certain decision because this amounts to a judicial function, to whom can it appeal – to the judiciary.
In any redesign of the constitution that may take place in the coming years, this anomaly should be dealt with. Perhaps here the president and the council of state could be the ultimate arbiter of separation of powers disputes – where the other two branches, the executive or legislature feel that the judiciary has denied one or other its rights. To work there’d have to be only very few of them, so only the government or a certain number of TDs could ask the council of state to consider a dispute. It could also give the president something more useful to do than delay rugby matches.
Several TDs have attempted to raise the issue of penalty points being removed from people’s licences in the Dáil.
Mick Wallace, Clare Daly, Joan Collins and Luke ‘Ming’ Flanagan all sought to speak about the matter but were prevented from doing so by the Leas Ceann Comhairle who said that Minister’s Questions was not the forum in which to raise the issue.
Earlier this month, Ceann Comhairle Seán Barrett found that his party colleague had failed to answer a question from Sinn Féin health spokesman Caoimhghín Ó Caoláin about the criteria he used to identify 35 priority locations for the centres announced last July.
Last week, Mr Barrett ruled that Dr Reilly had again failed to answer a question, this time from Labour backbencher Robert Dowds.
Mr Dowds had asked why a proposed primary care centre at Rowlagh in his constituency, which was originally slated to be funded under the Government’s capital programme, was now to be developed by public-private partnership.
This followed the revelation in September that Dr Reilly had added 15 locations, including two in his own constituency, to a list of priority locations for such centres.
After the Minister referred his inquiry to the Health Service Executive, Mr Dowds queried his compliance with Dáil standing orders in a letter to the Ceann Comhairle. Mr Barrett found that the Labour TD’s request for information had not been addressed, and sought a response from Dr Reilly.
The Minister replied that it was unfortunate that the detailed information sought by Mr Dowds was not furnished by his department at the time.
He said the department was not in a position to do so based on the information on its files alone and it had therefore referred the matter to the HSE for an answer.
He went on to say that Rowlagh was never included in a capital plans and was not included on the 2012 capital plan submitted to the department.
The delivery method for a potential primary care centre in Rowlagh changed in lists reported in the media and published by the department as part of the Government’s stimulus package announced last July, he said. This change occurred on the advice of the HSE’s head of estates as a public-private partnership was considered the fastest way to make progress.
According to the Ceann Comhairle, Standing Order 40A of the Dáil does not require ministers to provide information requested by a TD. It does, however, require that each and every request for information be addressed in the minister’s reply.
In response to questions from other TDs on the same issue, Dr Reilly said the consideration of projects for inclusion in the capital programme was “an evolving process”. Details of the next programme will be published
The Perpetual Ghost: Yawns, and mentally says here we go again. As he waits for the speeches to begin he notes that the cream of the opposition is made up by Independents and that the main opposition parties are but a shadow of themselves –he mentally chuckles
An Ceann Comhairle: I call Deputy Ó Cuív, who has six minutes.
Deputy Eamon Ó Cuív: I get an extra bonus late at night.
An Ceann Comhairle: That is because you are a good boy.
Deputy Éamon Ó Cuív: That is right. I try to be good every day.
My understanding is that we have approximately 4% of the fish available to us but 14% of the waters. The Minister maintains we get 15% of the fish caught and we have 14% of the waters.
Deputy Simon Coveney: That is in Irish waters.
Deputy Éamon Ó Cuív: I suggest that of the total European catch of fish, it is 4%.
Deputy Simon Coveney: Yes.
Deputy Éamon Ó Cuív: This means we are getting one quarter of our entitlement from the Common Fisheries Policy
The Perpetual Ghost: laughs and mentally communicates with the national audience of ghosts. A chorus of silent laughter echoes through the chamber “Boys everyone knows fisheries were sacrificed for farm subsidies”
Deputy Thomas Pringle: They have taken €500 billion from the seas around our coast in the intervening period and have left us with the scraps. One million tonnes of fish are taken from our waters every year out of which we take 170,000 tonnes.
Deputy Richard Boyd Barrett: It is a crime for an island country such as ours that the fishing industry is teetering on the brink of extinction. Our so-called partners are supposedly helping us but in fact they are burying us in the interests of big financial and corporate interests in Europe.
The Perpetual Ghost: This will be fun. The ace hypocrite will now speak.
(The PG is a Ghost who recalls the past in totality and can foresee the future)
Deputy Mick Wallace: We are depleting the oceans.
It reminds me of a saying by a Cree native North American tribe that only when the last tree has died, the last river been poisoned and the last fish been caught will we realise we cannot eat money.
The Perpetual Ghost: Observes the sayings of Wallace and allows himself a morally haughty smirk as he blows rings of ether with the words “Cowboy” dangling in the centre of the circle
Minister for Agriculture, Fisheries and Food (Deputy Simon Coveney)
I will try to respond to that profound comment at the end. Some of the commentary here has been inaccurate. The Irish fishing industry is not dying on its feet. Last year Irish fishing industry exports grew by 15%. T We also had some extremely wealthy people in the Irish fishing industry, in the pelagic sector in particular where there are 23 boats.
Deputy Martin Ferris: The Minister should compare the fleet size now and ten years ago.
Deputy Simon Coveney: The capacity for catch is just as high now. That said, I am not happy with the state of the industry.
I thank the Deputies for their frankness in contributing to the debate this evening. I certainly got a strong message from them and that will impact on the Government’s thinking.
The Perpetual Ghost: mutters the word Impact and laughs, oh my God government thinking, nonexistent, more thought emanates from the government crèche
The ghost knows that within the next year the only progress visible is fish dumped on the quayside of local fishing ports.
and how right he is.
Gardaí late last night received a tip off from a night watchman well on the way to alcoholism, which led to a sizeable seizure of Dope and stray cats from the locker rooms of Dáil Éireann.
Speaking on behalf of the Government, Phil Hogan Minister for the Environment, Community, and Local Government pledged that the Government would investigate this matter and take appropriate action. The Minister stated he knew nothing about how the cats came to be on the premises but went on to claim labour were only a crowd of pussies.
Ann Phelan of the labour party stated the finding of stray cats in the Dáil had nothing to with Kilkenny’s recent all Ireland hurling success. She believed in all probability; the culprits were jealous Galway TDs.
In a further development Luke “Ming” Flanagan claimed he had nothing to do with the stash of dope found but acknowledged that the Ceann Comhairle was a dope if ever there was a dope head. Ming further claimed that the Dáil had a long and proud history of having to deal with mind boggling dopes and that the finding of dope in the Dáil was nothing new.
Gardaí later today expect to charge a hundred and sixty six people for these offences.
In an interview on KCLR 96fm radio this morning Hogan defended his actions saying that he passed on these concerns to the local housing authorities “in good faith” and “without any direction from me or heavy-handedness”.
He told The Sue Nunn Show: “I’ve explained my position quite well, I am at the Ploughing Championships now and I have engagements here so thank you for giving me the opportunity to clarify my position.”
He then hung up as the presenter sought to question him further on the matter.
She said: “Minister Hogan needs to be informed that discrimination is unlawful including discrimination against members of the Travelling community.
The ineptitude of some front bench part members of FG in particular James Reilly, Phil Hogan, Leo Varadkar and John Perry is a cause for concern among backbenchers.
Speculation is rife that Hogan may have to go.
Michael Brennan: All eyes on Ceann Comhairle Sean Barrett, Luke ‘Ming’ Flanagan and John Halligan as Dail resumes – Comment, Opinion – Independent.ie
THE Dail returns today after its eight week summer break – and it won’t be boring.
They had been told by the Leinster House authorities to apologise for their part in a confrontation with Mr Barrett at the end of the last Dail term.
They have vowed not to apologise – so all TDs will be watching to see what happens if Mr Flanagan or Mr Halligan seek Mr Barrett’s permission to speak in the chamber.
But that will be just a side issue compared to the live political controversies that are going to cause plenty of early headaches for the Government.
The opposition already had the property tax and the motion of no confidence in Health Minister Dr James Reilly to keep them busy.
Then they were given an unexpected bonus when one of the Government’s own junior ministers put the spotlight on “well off” pensioners.
So Taoiseach Enda Kenny will have even more briefing material than usual in his folder when he stands up for Leader’s Questions in the Dail at 3.15pm.
The motion of no confidence in Dr Reilly will be easily defeated by the Government, given its massive majority. But what will be interesting to see is how much public support he gets from Government backbenchers.
Dr Reilly will be hoping that the Seanad quickly passes a vital piece of legislation this week to require pharmacists to offer patients lower priced generic drugs instead of the more expensive branded drugs. He is due in the Seanad tomorrow as the Health Pricing and Supply of Medical Goods Bill goes through its final stages.
The Dail also has to deal with a bill this week to improve the vetting procedures for teachers, sports coaches, youth workers and other people in contact with children. Expect plenty of debate about the measures in the bill to allow state bodies share “soft information” – where someone has been investigated for suspected child abuse but not convicted.
If you are to believe the Leinster House authorities, the public are now watching the Dail in greater numbers than ever.We don’t have any audience figures but Cable TV operator UPC has now moved its Dail TV service to channel 207. It used to be was less visible on the TV guide on Channel 801.
But it won’t be just the public who are watching today – the European Commission and the IMF will also be keeping a keen eye on the Dail make sure that the conditions of the bailout are met.