• Explanation: the doctrine of SOP is a historic maxim which divides the powers of the State into the legislator (Oireachtas: Dail Eireann and Seanad Eireann); government/executive; and judiciary. The legislative function is the making or amending of new or old laws. The executive is the general administration of the State including the framing of policy. The judicial function consists of the interpretation of laws and their application to factual scenarios by the independent cts. The doctrine does not forbid co-operation however between the powers if this is necessary. Article 6.1 establishes the SOP principle.

• Checks and balances in the SOP: Oireachtas can control the Government by refusing to enact its policies into law, and the Dail can by withdrawing its support, force the Governments’ resignation. Oireachtas checks cts by deciding the content of the law, legal procedures, the structure of ct system and is empowered to remove judges from office. Government balances the power of the Oireachtas as it has the exclusive right to recommend the appropriation of public monies. Cts also check the government by demanding that it acts intra vires of BnaH and checks the Oireachtas by denying it the ability to enact unconstitutional legislation.

Harvey v Minister for Social Welfare: SC noted that the Oireachtas may not delegate the power to make, amend, or repeal legislation.

McDaid v Sheehy: validity of a statue which allowed the Government wide powers in imposing, varying or terminating certain taxes by order was deemed invalid by the SC which stated that the statute gave the Government a power to legislate.

Laurentiu: SC held a provision unconstitutional which purported to give the minister powers in relation to deportation without principles and policies being set out in the act.

Irish cts have only allowed for this type of delegated legislation in very specific circumstances, which were laid out in: Cityview Press v AnCo. In this case, the Industrial Training Act 1967 gave AnCo (the Industrial Training Authority) power to make a statutory instrument fixing the amount of a levy to be collected from each business in a specified industry and used for training recruits to that industry. Cityview argued that the delegation of the power to fix the amount they had to pay violated Article 15.2.1. It was stated that the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to of principles and policies which are contained in the statute itself. It is permissible for the Oireachtas to delegate authority to make law but only law which fills in details of a policy already contained in legislation. The person or body making the statutory instrument is not allowed to establish new principles not already found in the parent act or some other act of the Oireachtas.

Furthermore, there must be sufficient guidance in the parent act for the order or regulation to follow. This was ultimately the problem in Bederev where the Misuse of Drugs Act 1977, which vested the Government with powers to declare certain substances to be ‘controlled drugs’, was challenged as unconstitutional on the ground that it contravened Article 15.2.1. Under the act, there were two means by which a substance could be defined as a ‘controlled drug’ and therefore be banned. First, the schedule of the Act contains a list of drugs which are designated as ‘controlled drugs’. Section 2(2) also empowered the Government to make an order adding a particular ‘substance, product or preparation’ to that the schedule. In other words this section delegated legislative power to the Government to change to the parent act by adding substances to the ‘controlled drugs’ list. Bederev argued that there were no principles and policies contained in the section to provide guidance to the Government in relation to the granting of orders. State argued that the Act was to be construed as a whole and that the guidance was to be found in the long title and the schedule so that any order made by the Government would have to be in respect of drugs which had the same character, properties and propensities as those controlled drugs already contained in the schedule to the Act. Ct concluded did not contain sufficient principles and policies. The difficulty was that the Act determined that only ‘certain’ dangerous or harmful drugs would be controlled, thus leaving important policy judgments to be made by the Government rather than by the Oireachtas. While the Oireachtas has responsibility for the passing of legislation and did pass the Act, it also delegated limited power to the Government to amend this legislation. However, this power granted to the Government is only valid if it is curtailed by the original Act and does not allow for the Government to create new law under the auspices of the original legislation. Unfortunately, because of the manner in which the legislation was set out, the power given to the Government in the act was too vague, gave a power to the Government which was not limited by principals and policies, and did not contain sufficient guidance in relation to the exercise of this power. This was therefore an unconstitutional delegation of legislative power under Article 15.2.1 and so it was struck down. This also meant that the 2011 Order made under the Act, which had banned many psychoactive substances being sold in ‘head shops’ and over the internet, was also made invalid.

Leontjava v DPP: minister provided that an immigration officer could limit the duration of the entrants stay which was ultra vires the legislation i.e. legislation said nothing about the duration of the stay. Secondly, the minister required aliens to produce a registration certificate of passport and this was held to be constitutional and appropriate.

McDaid v Sheehy: HC found provisions of the Imposition of Duties Act 1957 unconstitutional having applied the principles and policies test. However, this was overturned on appeal on the grounds that the delegated legislation was granted retrospective validity because it was referenced in the Finance Act 1976, and the principles and policies text should not apply.

• Ireland and foreign relations: one of the non-justiciable areas of the executive (as well as socio-economic rights i.e. how State resources are spent). Article 29.4 means that BnaH will not invalidate laws which are necessitated by Irish membership of the EU (for example) but we should not go beyond them i.e. principles and policies test apply here as well. O'Connor v DPP: turf cutting in an area of conservation which was an offence under habitats directive. HC held it was permissible to create an offence in this manner. O'Sullivan v Sea Fisheries Protection Authority: fisherman was under-recording catch, and this was to lead to penalty points on licence which could be served without a criminal conviction and was called a stand-alone licence. There was no mechanism to suspend these points and EU law did not require the stand-alone licence. The question was whether the minister had exercised a legislative function in creating it. Ct acknowledged that with EU legislation there is some scope for implementation. The principles and policies in the parent legislation are to narrow the scope so that the powers of the authority are not unlimited and as such give guidance to the decision maker. Here, the only thing left to the discretion of member states was the process by which points would be allocated. This was to be incidental, supplemental and consequential and therefore constitutional and it is a choice that does not imply a capacity to determine policy. Section 3 European Communities Act 1972 enables a minister to make regulations to implement EU law. Section 3 is clearly a Henry VIII clause as it allows a minister of State to amend primary legislation by regulation, and would be unconstitutional except for Article 29.4. This was decided by SC in Meagher v Minister for Agriculture where applicant had been prosecuted under regulations that amended primary legislation. While the constitutionality of Section 3 was upheld, it does not mean that this is appropriate in all cases. Browne v AG: SC found that Section 3 could not be used to make regulations creating an indictable offence. However, Browne was reversed by the European Communities (Amendment) Act 1997 and indictable offences may be created now.

Cooke v Walsh: SC found that regulations made by the Minister for Health providing that health services would not be available to persons injured in a car crash unless they can establish that they are not entitled to compensation or damages from a third person were ultra vires the Health Act 1970, as the legislative could not have delegated such power. The effect of this case and Harvey v Minister for Social Welfare is that SC has outlawed the Henry VIII clauses i.e. a Minister may not amend primary legislation by using delegated legislation, and may not act inconsistent with primary legislation.