Transfer of primary legislation.

loremolis

Can anyone clarify if the power bestowed on a statutory body by primary legislation can be transferred to another statutory body by way of a statutory instrument?

Victor

I imagine certain powers yes, even without an SI, e.g. many state organisations delegate their property management requirements to the OPW, but it would depend on the circumstances. The courts will look to see if any delegation or agency is reasonable and done within either a statutory framework or other reasonable procedure.

However, the Minister for Justice or Garda Commissioner can't transfer general policing power to say, the Department of Health, although there is statutory procedure to deputise members of the Defence Forces.

Tom Young

Para 20/24: http://courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/86974e2b607ca37e802578e8004b4d2d?OpenDocument&Highlight=0,Chicken

My view in light of Art 15 of the Constitution is that the answer is only if the transfer of power, or making of regulations was explicitly contemplated by the Oireachtas at the time of the passing of the legislation.

Outside of that, the transfer of power is likely to be ultra vires.

loremolis

Tom Young wrote: »

Para 20/24: http://courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/86974e2b607ca37e802578e8004b4d2d?OpenDocument&Highlight=0,Chicken

My view in light of Art 15 of the Constitution is that the answer is only if the transfer of power, or making of regulations was explicitly contemplated by the Oireachtas at the time of the passing of the legislation.

Outside of that, the transfer of power is likely to be ultra vires.

Regulation 8(2) of SI 445/2000 transfers various functions of the Electricity Supply Board under the Electricity Supply Acts to Eirgrid.
http://www.irishstatutebook.ie/2000/en/si/0445.html#article8

Is a transfer of functions the same as a transfer of power?

234

loremolis wrote: »

Regulation 8(2) of SI 445/2000 transfers various functions of the Electricity Supply Board under the Electricity Supply Acts to Eirgrid.
http://www.irishstatutebook.ie/2000/en/si/0445.html#article8

Is a transfer of functions the same as a transfer of power?

That's a slightly different situation since the SI is implementing an EC Directive. Art 15 doesn't really have any application there except in so far as the Oireachtas gave a general power to do this under the European Communities Act 1972.

loremolis

234 wrote: »

That's a slightly different situation since the SI is implementing an EC Directive. Art 15 doesn't really have any application there except in so far as the Oireachtas gave a general power to do this under the European Communities Act 1972.

I understand that the SI is intended to implement an EU Directive but in doing so can it transfer the powers given to another statutory body under primary legislation?

That's what Regulation 8(2) purports to do.