Course material

1. Answer: Introduction Every Society has its own set of rules,
Answer:
Introduction
Every Society has its own set of rules, laws, and regulations that stipulates the type of
relationship that should exist between its members; some of the laws are written, and some
are expressed. For any society, laws, rules, and order are essential in that they level the
playing ground to ensure that everyone is equal and given equal opportunities.
Furthermore, proper laws and order also ensure that People Coexist Harmoniously and
protect the right of every person. The Republic of Ireland is one such Society that has
always relied on the rule of law to govern its citizens, protect their rights, and ensure equal
opportunities for everyone. The Republic of Ireland’s laws is well documented in its
Constitution, which the government safeguards and implements on behalf of its people. The
Constitution creates the government’s branches and organs, including the court, and
specifies how all those government organs should be operated. It also outlines every Irish
citizen’s fundamental rights. In Ireland, the Constitution is part of a larger human rights
framework. One of the primary benefits of the country’s Constitution and one which
supports its resiliency in governing lies in its flexibility. The Constitution of Ireland is a
living document that understands the need for societal change and how the changes in
Society necessitate the change in the rule of law.
In this regard, the Constitution has made it easier to amend the laws to ensure that they are
responsive to citizens’ needs. One of the main aspects f the Constitution is the Doctrine of
separation of power. The article will look into the Doctrine of separation of power, which
represents one of the essential principles of the Constitution and determines its
applicability according to the shared case scenarios for this assignment. In the scenario, in
reliance to the Emergency Health Measures Act of 2020, which is an act to make provision
for the management of severe public health concerns, and through its section 5(1) grants
the Minister the authority to make rules and regulations to expedite the achievement of the
Act, the minister issues order SI 10/2020, in which every person over the age of 18years
who are employed must be vaccinated and order SI 12/2020 which restrict the sale of
alcohol on licensed entities to only Monday and Tuesday between 02:00 PM and 4:00 PM
and is reliant to section 6A(1) of the same Act which gives the health minister the powers
to make such regulations restricting the movement of persons as are thought necessary to

2. achieve the aims of the Act”. In addition, the minister issues SI 21/2020, which states that
persons may only travel within a 2km distance of their homes for exercise or essential
shopping, save for those deemed to be essential workers with the meaning of Schedule 1 to
the instrument. SI 21/2020 has received the assent of the Houses of the Oireachtas via
resolution and has become law. Below is my advice to Geraldine, who wishes to understand
whether the Doctrine of separation of power can challenge the above orders by the
executive through the Minister.
First, it is essential to understand the meaning and benefits of the Doctrine of separation of
powers. According to the Irish Constitution, the Irish people have all of the State’s power. It
states that the legislative, the executive, and the judiciary have equal ability to rule. The
Legislature has the authority to enact legislation. In Ireland, laws are made by the
Oireachtas (national parliament), which the President leads. The executive has the
authority to execute the law, operate state ministries, and establish the Oireachtas’ agenda.
The State’s executive authority is controlled by the State, which the Taoiseach leads. The
courts have the authority to interpret the law. The Irish courts have this authority, which
includes the ability to determine whether a piece of legislation or law is unconstitutional.
The Doctrine of separation of power is essential in the governing process of a nation. For
example, The decentralization of government authorities, which is evident in the political
system, is an essential aspect of the division of powers. There are several advantages to
decentralizing government power. These include efficient operational monitoring by each of
the government’s divisional organs. It also prevents one individual or organ from abusing
authority.
To back up this claim, Learned Justice Oputa, Nigerian Supreme Court Judge, noted in his
book “the Independence of the Courts in a Democratic Society” that the notion of division of
powers evolved from the necessity to secure the constraint of political authority by splitting
it without going too far. In reality, the convergence of three government organs is explained
by the check and balances system[1]. This aphorism illustrates why a government’s division
of powers is so important. The separation of powers in the State makes a system of checks
and balances in public administration. This implies that the current organs will be checking
over each other’s operations, and transparency and accountability will be ensured as a
result.
Another benefit of the division of powers doctrine is that it inhibits arbitrary power usage.
When ultimate authority is given to one entity, it is almost certain to be abused, which is
what the principle of separation is supposed to prevent. Moreover, division of powers
ensures that power to govern is not vested in a single centralized power. This has been
captured well in The State Vs. Lennon (1936) case in which the judges Sullivan, Meredith,
and O’Byrne JJ concurred that The Constitution had entrusted the court with the role and
responsibility of ensuring that the Legislature does not transcend its legislative authority by
making laws that are in violation of the Constitution. However, the Constitution has granted
the Legislature the right to change the Constitution directly, subject to a public referendum

3. in particular situations. The only responsibility of the court in situations where the
Legislature claims to alter the Constitution is to ensure that the proposed modification is
within the extent of the power conferred by the Constitution and that the Constitution’s
essential formalities have been followed. It has not been contested that the Oireachtas may
have adopted any alteration through customary law during the eight-year time indicated,
which could then be enacted by the Oireachtas with the permission of the individuals
currently addressed in a Referendum after the eight-year term.
Separation of powers also promotes a cooperative working environment among the State’s
organs. If all government departments and subdivisions are aware of their roles and
responsibilities, there is guaranteed acceptance for each unit’s responsibilities and roles,
resulting in a positive working environment for employees, administrators, and public
servants. As a result, every modern democracy should be guided by legislators who are
modeled legislators to legislate, executors to undertake those laws, and the judicial system
to settle disputes on those laws and the courts to make a ruling on some of its
imperfections, the rule of law is the only part yet designed by man for political sanity in any
nation.
Separation of powers is essential not only for splitting governmental power among the
organs but also for safeguarding and sustaining the judiciary by ensuring that neither
Legislature nor the executive strips away power and influence and that the activity of
legislative powers in specific is appealable control. The only way to defend individuals’
rights and liberties, particularly those of the nation’s minorities, is for government
authorities not to be centralized in the hands of a single individual; or else, such authority
will be completely corrupted. This appears to be one of the most critical aspects of the
separation of powers. Division of powers into distinct organs overcomes the problem of
state authority consolidation and safeguards individuals’ liberty. In “the spirit of the law,”
Montesquieu stated that the secret of personal freedom is the division of these authorities
and the delegation of each sort of authority to a distinct individual or group of people.
Having understood the importance and meaning of the Doctrine of separation of power, my
informed advice to Gerradline will be based on the scope of applicability of the Doctrine of
separation of power in relation to the Irish Constitution and the separate organs of this
country is as follows:
On whether the Doctrine of separation of power can be used to challenge the provisions of
the Emergency Health Measures Act of 2020, most Importantly, section 5(1), which grants
the Minister the authority to make rules and regulations to expedite the achievement of the
Act and 6A(1) of the same Act which gives the health minister the powers to make such
regulations restricting the movement of persons as are thought necessary to achieve the
aims of the Act, it is essential to note that While Article 15 of the Constitution gives the
Oireachtas primary legislative authority, this power is not unrestricted, since the Oireachtas
is prohibited from adopting legislation that is contrary to the Constitution’s provisions.

4. Similarly, legislation that establishes an offense retroactively or provides for the application
of the death sentence is prohibited. Except for Money Bills and Constitutional Amendment
Bills, which can only be brought in Dáil Éireann, legislation can be initiated in either House.
Therefore, through secondary legislation or the Statutory Instrument Act of 1947, a
minister is legally mandated to make laws and provisions for operational purposes. A
Statutory Instrument represents a device granted to ministers by another of the Oireachtas’
Acts: expressly known as the Statutory Instruments Act, 1947. The power originated before
the 1947 Act, as it was acquired from the political structure Ireland acquired from the
United Kingdom, but it was revised and legally entrenched in the 1947 Act. For example, in
Duman & Ors Vs. Minister for Justice (2007). In this case, the judgment of a cabinet member,
taken in an administrative process formed as an act of executive authority, to deal with a
distinct group of foreign individuals is at the question. On the one side, it is claimed that,
under this method, applicants’ Constitutional and Convention rights were supposed to be
evaluated in line with the law. On the other side, it was argued that neither Constitutional
nor Convention rights should be considered. As a result, the structure of the plan, and along
with it, the character of any legal challenge, is at the heart of the case. At the heart of the
matter is the premise that the status of a foreigner who fails to succeed in a request under
the program remains the same from before the request, with all applicable Constitutional
and Convention rights still to be considered. The Minister’s denial of the first and second
listed applicants’ petitions under the IBC 05 Program is at the heart of the issue. The court
upheld the decision of the Minister based on the Statutory Instrument Act 1947.
In a second case similar to the above case, Gorry &Anor Vs. Minister for Justice and Equality,
(2020), This ruling is about two appeals that raise the same broad questions of principle
about how a decision-maker such as Minister should handle an immigration decision
involving the non-national marriage partner of an Irish national. The Petitioners in each
instance are a legally wedded pair consisting of one Irish national and a non-national
partner; each of the non-national partners is a Nigerian citizen. The Minister has issued
deportation orders in the case of these foreign spouses. Both sets of Petitioners attempted
to have the Minister reverse their separate deportation orders, but they were both
ineffective. As a result, the Petitioners filed a court review petition, seeking, among other
things, a judicial order curtailing the Minister’s reluctance to reverse these orders. During
the first round of hearings, the Petitioners prevailed presented before Mac Eochaidh J. The
judge determined in his decision that an Irish citizen married to a non-Irish citizen has a
prima facie right to dwell in the country with that other individual; however, this right is not
unconditional, and the State is not required to determine the home nation selected either by
husband and wife in every case. In their decision, the judge specified that even though the
ministers have legislative powers conferred to them concerning Statutory Instrument Act
1947, the Minister is also obligated to administer their provisional acts in consideration of
the civil rights of the citizens, such as marriage and the right for freedom of choice.
Another essential aspect to consider to test the legality of the Minister’s legislative actions is
the Doctrine of delegated legislation under the “principles and policies test” as applicable

5. under the Irish Constitution. The principles and policies concept governs the extent to
which the duty of legislation can be promulgated by entities other than the legislative
entities. This is admissible in Irish courts provided that the policies and principles have
provided in the primary law and the secondary legislation merely gives direction and effects
to the policy of the primary Act. For example, Kelly and Shiels, In the Matter of (2000). This
is an appeal from Kerr J’s judgment of 13 October 1999, in which he declined the applicants’
judicial review claim. The application sought legal review of judgments by the Law Society
of Northern Ireland, the Council of Legal Education (Northern Ireland), and the Institute of
Professional Legal Studies unwilling to acknowledge the petitioners to the Institute’s
postgraduate course, which provides training for those desiring becoming admitted as
solicitors, as stated in the grounding statement. The legality of the clause in the Law
Society’s regulations requiring an applicant for registration as a Society student to prove
that they were given a seat in the Institute was evident when the matter was submitted to
the trial judge in the Queen’s Bench Division and on appeal. The appellants argued that the
provision was unlawful because it violated the enabling laws, and they sought various
remedies as a result. The court determined that the conduct in dispute was done to
accomplish two or more goals, one inside and one beyond the enabling power’s boundaries;
it must use an appropriate test to assess whether the action was a legal exercise of the
authority. The usual standard is whether the allowed purpose was the actor’s real or
primary purpose, although courts have also used other criteria. In the end, the appellant’s
request was quashed as the subjective tests revealed that the institution’s policies were
made for administrative and policing purposes.
Therefore, based on these decisions of the ministers, it is critical to note that for a
government’s Minister to be legally acceptable, it should meet the following criteria; for
example, the ministers need to follow the proper procedures in their duties. This means
that it needs to be within their area of jurisdiction, it should be approved by the legislative
House, and the provisions should also be considerate of the civil rights and liberties of the
citizens. In this regard, the Minister’s actions in SI 10/2020, according to Section 5 (1),
where he developed a provision that made it mandatory for every person who is 18 years
and above and employed by the State to be vaccinated, can be challenged in a court of law
according to the Doctrine of Separation of power. This is because first, the Minister’s
provision contravenes civil rights liberty as guaranteed by the Constitution. Secondly, the
Minister did not follow the correct procedure in the actions to develop such provisions.
Finally, as stated by the Constitution, every law in the land needs approval from the
legislative House, and the Minister overlooked this Act even though they acted within the
principles and policy concept. Again, SI 12/20 20 enacted to restrict the sale of alcohol
within the country can also be challenged based on the grounds mentioned earlier.
The Minister’s actions in SI 21/2020, where he developed a provision to curtail the peoples’
acts of freedom of movement in some considerable measure, cannot be successfully
challenged in a court of law for the following reasons; first, it is essential to note that the
Minister acted within his constitutional powers in the exercise of his duties. Secondly, the

6. Minister acted in good faith for a matter considered a national security issue. According to
the law, the government can restrict the citizens’ freedoms as guaranteed by the
Constitution during national security emergencies. The other essential aspect to consider is
that the Minister considered the citizens’ right to freedom; for example, rather than
confining people to their homes, the Minister allowed for a 2 km circumferential distance to
allow people to exercise their right to freedom. Lastly, the Minister ensured that all the
correct procedures had been followed before enacting the provision. As a result, the
Legislature adopted the provision, making it legally binding law in our jurisdiction. The
principles and policy tests are not admissible in this case since the order was adopted by
the Legislature making it a primary principle