Cassidy v Minister for Industry and Commerce

JudgeHENCHY J.,O'Higgins C.J.
Judgment Date01 January 1978
Neutral Citation1975 WJSC-SC 617
CourtSupreme Court
Docket Number[1974 No. 1146P],(133-1976)
Date01 January 1978

1975 WJSC-SC 617

O'Higgins C.J.

Henchy J.

Griffin J.




JUDGMENT delivered the 13th day of May 1977by O'Higgins C.J. (nem diss)


Under the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas and there is no other legislative authority. As a consequence where, as in this case, a statutory instrument made by a Minister is impunged the Courts have the duty to enquire whether such instrument has been made under powers conferred by and for purposes authorised by the Oireachtas. If the powers conferred by the Oireachtas on the Minister do not cover what was purported to be done, then, clearly, the instrument is ultra vires and of no effect. Equally, if the rule-making power given to the Minister has been exercised in such a manner as to bring about a result not contemplated by the Oireachtas the Courts have the duty to interfere.Not to do so in such circumstances would be to tolerate the unconstitutional assumption of powers by great departments of state to the possible prejudice of ordinary citizens. If what the Minister seeks to do was not contemplated by the Oireachtas, then, clearly, it could not have been authorised. In this instance, in my view, the application of a maximum prices order to all drink sold, whether in public bars or in lounge bars, in the town of Dundalk, has the effect of discriminating unfairly against owners of lounge bars in Dundalk. I can find no evidence that such a result was contemplated by the Prices Amendment Act 1965, and, for the reasons given by Mr. Justice Henchy in the Judgment he is about to deliver, I agree that the Order should be declared to have only the effect authorised by that Statute. I wish to add that I agree with the entire of the Judgment about to be delivered by Mr. JusticeHenchy.




Price control is looked on as an essential part of the strategy of the government in the war against inflation. In practice, control of prices operates in two ways. The Minister for Industry and Commerce, who is charged with the duty of monitoring prices, has worked out a voluntary, non-statutory arrangement whereby suppliers of goods and services agree that they will not increase their prices or charges without prior notice to him. Advance notice of a price increase enables him to have the increase vetted. If he finds it acceptable, he allows it to go through. If he finds it acceptable, he allows it to go through. If he finds it unjustified, he refuses to give it his approval. In the main, the Minister's veto is accepted as the determining factor in deciding whether or not there will be a price increase.


Auxiliary to this voluntary method of price control, there is vested in the Minister, by statute, power to compel prices to be held at specified levels. If, for example, a commodity is being sold, or is proposed to be sold, at an excessive price, the Minister is empowered to make a statutory instrument fixing the maximum pricewhich may be charged for that commodity. If the commodity is then sold for more than the maximum price so fixed, an offence is committed. This form of compulsory price control is allowed by the Prices Acts, 1958to 1972.


In 1972 the associations representing licensed vintners were co-operating with the Minister in the voluntary control of the price of drink sold in public houses. In August 1972 it came to the notice of the Minister that this voluntary arrangement - or gentleman's agreement, as it has been called in this case - was being broken in the town of Dundalk. Drink was being sold there at increased prices of which he had got no advance notice. He sought, by letter and by sending a representative to Dundalk to make the case against the price increases, to dissuade the publicans from persisting in charging the increased prices. But to no avail. He therefore turned to his statutory powers of price control. In exercise of those powers, he laid down by statutory instrument the maximum prices that could be charged for intoxicating liquor in the urban district of Dundalk. The relevant statutory instruments giving that result are No. 99 of 1973 and No. 136 of 1973 - the litter merely varies the maximum prices fixed by the former. Those maximum price orders are expressly not applicable to premises registered under the Tourist Traffic Acts, 1939to 1970, (i.e. hotels) andthe maximum prices fixed apply regardless of whether the drink is sold in a public bar or in a lounge bar.


The five Dundalk publicans who have brought this action against the Minister seek to have those two maximum price orders condemned as invalid. Their claim failed in the High Court. In this appeal they seek a reversal of that decision. They base their appeal on two grounds. Firstly, they contend that the orders are bad because they were made not for the statutorily allowed purpose of maintaining the stability of prices generally but for the unpermitted purpose of forcing the plaintiffs - and the vintners' organisation of which they are members - to fall into compliance with the non-statutory arrangement whereby proposed price increases are to be notified in advance to the Minister. Secondly, they contend that the orders are bad because of unreasonableness, in that the single scale of maximum prices laid down in them unfairly compels publicans to observe those maximum prices when the drinks are being sold in lounge bars.


The trial judge disposed of the first of those grounds by finding asfollows:

"There is no evidence to suggest that the Minister was under any misapprehension as to the basis upon which he could operate the informal price control which prevailed after 1968 or that he thought that there was any legal obligation onmembers of the licensed trade to notify intended price increases. I have no doubt that the Minister made the order because he considered the price increases in the Dundalk area was excessive and with a view to promoting the objects of the Prices Acts, 1958and 1965, by maintaining stability of prices of intoxicating liquor in the Dundalk area."


I am satisfied, on a review of the correspondence and the oral evidence, that those findings were justified and could not be disturbed on appeal. The increases which the Dundalk publicans arrogated to themselves produced drink prices which were higher than those obtaining in any other provincial town and even higher than those obtaining in Dublin, where the overheads in the licensed trade are considered to be higher than elsewhere in the State. Those unwarranted increases evoked complaints from the public which the Minister could not ignore. The evidence in coercive of the conclusion that the Minister, in making these orders, was primarily concerned to restore the stability of prices that had existed in the retail drink trade before the unilateral decision of the Dundalk publicans to award themselves price increases. In other words, the Minister, in making these orders, was exercising his statutory powers so as to achieve the object set by thelegislature.


I think, however, that the Minister had a secondary purposewhich...

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