Varadkar seeking unconstitutional extra judicial powers on welfare fraud

01 June 2017

Today, the Joint Oireachtas Committee on Social Protection discussed the draft heads of the Social Protection and Pensions Bill 2017.

Former Minister of State in the Department of Social Protection, Senator Kevin Humphreys, who is a member of the Committee has said that part of the proposed law, Head 5, from Minister Varadkar would provide him with extra judicial powers on welfare fraud that Sen. Humphreys has been advised are unconstitutional.

Senator Humphreys said:

“Head 5 of the proposed law would provide the Minister with the power to punish someone convicted of social welfare fraud in our courts. The law if passed would allow the Minister to cut a person’s weekly social welfare payment by up to 25% for a period of 9 weeks. This essentially sets the Minister up as a judge as he will be able to determine the level of penalty.

“For a potential Taoiseach to be bringing forward legislation that would even try to usurp the powers of the judiciary is deeply worrying.

“Only the Courts are empowered to judge a citizen, and the powers the Minister is seeking are arbitrary and not properly defined but will be set out by regulation. There is already the power in place to recover overpayments and payments as a result of fraud over a period of time.

“The Minister is seeking power under Head 5 to assess ‘the gravity of the offence’ in individual cases, along with any and all other relevant factors, and then to impose a punishment that, on his view of the matter, fits the crime – after the courts have already pronounced on exactly the same question.

“The trouble is that any penalty imposed by a court of law is part of the judicial function. The administration of justice in criminal matters is constitutionally confined to the courts, and the selection of penalty following conviction is an integral part of the judicial function in such cases.

“Essentially, what is proposed is that, on top of trial, conviction and sentence in a criminal court, there should be an additional penalty imposed by way of administrative sanction, in the form of a reduction in social welfare payments.

“In this case Leo Varadkar is dealing with nothing so serious as the authority and stability of the State. He would be unlikely to be given any similar latitude by the courts and his proposed forfeiture plans would, I believe, be even less likely to survive constitutional scrutiny.

“I questioned officials in the Department today as to whether they had reviewed the possible constitutionality of this proposed law and decision in the Supreme Court case Cox v. Ireland [1992] 2 I.R. 503.”

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