Under-explored Corners: Inherent Executive Power in the Irish Constitutional Order

Abstract

It has been suggested that it may be surprising to some that after 80 years one could claim that Bunreacht na hÉireann has some significant ‘under-explored corners’. It may be added to this claim that some under-explored corners are perhaps more surprising than others. Article 28.2 of the Constitution provides that `the executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on authority of the Government`. However, as a matter of Irish law, the parameters of executive power in the domestic sphere is an area lacking detailed examination. This has led to an under-exploration of a key branch of State, indeed, the most powerful branch of the Irish State given that it is frequently perceived to dominate the legislature. This paper seeks to explore this corner of the Irish constitutional order, examining the rich history, precedents, and principles which constitute this fascinating, if rarely examined, aspect of our basic law.

Part I of this article begins by briefly considering the different conceptual frameworks that may be used to discern an inherent executive power in the Irish constitutional order. In Part II I consider examples of such powers expressly identified by the courts. These include the power to regulate immigration, the power to establish tribunals in the public interest, and the power to create non-statutory policy schemes. In Part III, I analyse the relatively limited number of authorities examining exercises of non-statutory executive power in the domestic sphere, and set out observations which can be drawn from their academic and judicial treatment. I suggest that a consensus of sorts has been reached on the issue of non-statutory exercises of executive power in the absence of legislation. This section includes a detailed analysis of the core principles of this emerging consensus, and discussion of their long history in Anglo-American legal thought. This section also suggests these principles are discernible in the drafting history of the constitution and in the recent case law of the courts. In Part IV I distil the core principles of the jurisprudence discussed in detail in Part III. Then, having outlined the basic contours of domestic executive powers jurisprudence, I conclude by identifying what I consider the difficult and fascinating unresolved questions posed by this emerging body of case law.

Ultimately, I hope to demonstrate that after 80 years Bunreacht na hÉireann indeed remains a document filled with fascinating under-explored corners – even in respect of fundamental questions of constitutional law.