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the judgment to substantiate such delegation. Geoghegan J. dealt with the issue as follows
in his judgment;
“Pursuant to its powers under subsection 3 of Section 23, the Government did in
fact delegate to the Minister for Justice the power conferred by the section. I have
some doubts as to whether Article 13 of the Constitution permits such delegation
and therefore as to whether a query might arise as to the constitutionality of
subsection 3 of Section 23 of the Criminal Justice Act 1951. But although the
constitutionality of that section has been challenged in these proceedings, no
challenge has been put forward on that particular ground and therefore I am
making no decision on it. For the purposes of this judgment I am assuming that a
lawful delegation of the power was made by the Government was made to the
Minister for Justice”. (Patrick J. Brennan -v- Minister for Justice, Ireland and the
AttorneyGeneral and Others [1995] I.R. 618)
Accordingly, the Brennan case proceeded without a determination of the validity of the
power of the Minister for Justice to remit sentences on this point. It was assumed for the
purpose of the case that such delegation was lawful. The issue was soon clarified by the
repeal of Section 23 subsection3 of the Criminal Justice Act 1951 and its replacement by
the following section in Section 17 of the Criminal Justice (Miscellaneous Provisions) Act
1997:
Section 23a
“(1) The Government mayby order delegate to the Minister for Justice anypower
of the Government under Section 23 of this Act.
(2) The Government may by order revoke an order under this section.”(emphasis
addedbywriter)
This newsection came in to operation on the 4 th March 1997. This amendment gives clear
recognition to the deficiencies in the lawmaking process to grant to the Minister for Justice
the power to remit sentences. There can be no doubt that the President has the power to
remit sentences on the recommendation of the Government. Similarly, since 1951 the
Government itself as a corporate whole was invested with such power to remit a sentence
of imprisonment (Section 23(1)). However a significant doubt existed about the power of
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