Ó Cléirigh v Minister for Agriculture, Food and Forestry

• Jurisdiction: Ireland
• Judgment Date: 27 March 1998
• Date: 27 March 1998
• Docket Number: [1993
• Court: Supreme Court

Ó Cléirigh v. Minister for Agriculture

Micheal Ó Cléirigh ó cléirigh

Plaintiff

and

The Minister for Agriculture, Food and Forestry, The Minister for Finance, Ireland and The Attorney General

Defendants

[1993 No. 4055P; S.C. Nos. 92 and 102 of 1996]

High Court

Supreme Court

Constitution - Statute - Validity - Personal rights - Property rights - Lay commissioner of Irish Land Commission - Statute providing for compensation in event of early loss of office - Compensation payable in amount "as the Minister considers reasonable" - Compensation payment requiring consent of Minister for Finance - Whether statutory power unfettered - Whether power judicial or administrative - Whether irrelevant factors considered in exercise of power - Irish Land Commission (Dissolution) Act, 1992 (No. 25), s. 9 - Constitution of Ireland, 1937, Articles 40.3 and 43.

The Irish Land Commission (Dissolution) Act, 1992, which at all times material to the instant proceedings had not yet been brought into force, provides for the dissolution of the Irish Land Commission.

Section 9 of the Act of 1992,inter alia, provides:-

"(1) The Minister [for Agriculture, Food and Forestry], with the concurrence of the Minister for Finance, may, . . ., provide such compensation to . . . a lay commissioner ceasing to hold office . . . as the Minister considers reasonable."

The plaintiff was appointed a lay commissioner in 1980, at the age of 46 for a term which was to expire when he reached the age of 67. In light of the imminent dissolution of the Land Commission, there were negotiations between the plaintiff and the first defendant as to the terms of his possible compensation on his early loss of office but no agreement could be reached.

The plaintiff instituted proceedings seeking,inter alia, a declaration that s. 9 of the Act of 1992 was invalid having regard to the Constitution. He contended that the words "as the Minister considers reasonable" contained in the section gave the first defendant an unfettered power which might be exercised in contravention of the provisions of Article 40.3 and Article 43 of the Constitution. He further argued that the section, in allowing the first defendant to assess the compensation payable, permitted him to act as a judge in his own cause contrary to the principles of natural and constitutional justice.

The defendants submitted,inter alia, that the proceedings were premature in view of the fact that the Act had not yet been brought into operation.

Held by Barron J., in granting the relief sought, 1, that the fact that an Act had not been brought into operation did not affect its status as law; accordingly, a court might determine its validity having regard to the provisions of the Constitution.

2. That a decision made by the first defendant pursuant to s. 9(1) of the Act of 1992 must be madebona fide and be sustainable factually; accordingly, it was not an unfettered power such as to contravene the provisions of the Constitution.

The State (Lynch) v. Cooney [1982] I.R. 337 applied.

3. That, in requiring the consent of the second defendant to a decision made by the first defendant, s. 9(1) of the Act of 1992 introduced inappropriate budgetary considerations into a judicial determination.

4. That, because a decision made under the sub-section was one of a judicial nature, justice must not only be done, it must be seen to be done; accordingly, the first defendant being the person making a payment under the sub-section might not determine the amount of such payment.

O'Brien v. Bord na Móna [1983] I.R. 255 applied.

The defendants appealed to the Supreme Court.

The plaintiff cross-appealed against the refusal of the High Court to grant a declaration that in the event of his ceasing to hold office by reason of the Act of 1992, the plaintiff would be entitled to such compensation as would put him in the same financial position as he would have been in had he remained in office until he reached the retirement age of 67 years.

Held by the Supreme Court (Hamilton C.J., Barrington, Keane, Murphy and Lynch JJ.), in allowing the defendants' appeal and in dismissing the plaintiff's cross-appeal, 1, that the Act of 1992 was a law which had been duly passed by the Oireachtas and was therefore open to challenge under Article 34.3.2 of the Constitution.

2. That the ascertainment of the rights lost by the plaintiff in the present case by his ceasing to hold office was not an enormous task requiring a judicial inquiry nor was the second step of assessing reasonable compensation in respect of such lost rights.

3. That the fulfilment of these functions was not the exercise of the judicial power of the State but was an administrative function similar to many such functions exercisable by ministers and public officials and as such had to be exercised reasonably, conscientiously and fairly; but to which the principlenemo iudex in causa sua did not apply.

O'Brien v. Bord na Móna [1983] I.R. 255;Radio Limerick One Ltd. v. Independent Radio and Television[1997] 2 I.R. 291 andThe State (Plunkett) v. Registrar of Friendly Societies (No. 1)[1998] 4 I.R. 1 followed.Electricity Supply Board v. Gormley[1985] I.R. 129 considered.

Cases mentioned in this report:-

Condon v. Minister for Labour [1981] I.R. 62.

Dreher v. Irish Land Commission [1984] I.L.R.M. 94.

Electricity Supply Board v. Gormley [1985] I.R. 129; [1985] I.L.R.M. 494.

Fisher v. Irish Land Commission [1948] I.R. 3.

Loftus v. The Attorney General [1979] I.R. 221.

McDaid v. Judge Sheehy [1991] 1 I.R. 1; [1991] I.L.R.M. 250.

District Judge McMenamin v. Ireland [1996] 3 I.R. 100; [1997] 2 I.L.R.M. 177.

Meskell v. Coras Iompair Éireann éireann [1973] I.R. 121.

Murphy v. Corporation of Dublin [1972] I.R. 215.

O'Brien v. Bord na Móna [1983] I.R. 255; [1983] I.L.R.M. 314.

O'Byrne v. Minister for Finance [1959] I.R. 1.

Radio Limerick One Ltd. v. Independent Radio and Television [1997] 2 I.R. 291; [1997] 2 I.L.R.M. 1.

In re Solicitors Act, 1954 [1960] I.R. 239.

State (Lynch) v. Cooney [1982] I.R. 337; [1983] I.L.R.M. 89.

The State (Plunkett) v. Registrar of Friendly Societies (No. 1) [1998] 4 I.R. 1.

Plenary summons.

The facts are summarised in the headnote and fully set out in the judgment of Barron J., infra.

By plenary summons issued on the 10th June, 1993, the plaintiff sought, inter alia, a declaration that s. 9 of the Irish Land Commission (Dissolution) Act, 1992, was invalid having regard to the provisions of the Constitution of Ireland, 1937.

The matter was heard by the High Court (Barron J.) on the 30th and 31st May, 1995.

The defendants appealed to the Supreme Court by way of notice of appeal dated the 7th March, 1996. The plaintiff cross-appealed by way of notice dated the 12th March, 1996.

The appeal was heard by the Supreme Court (Hamilton C.J., Barrington, Keane, Murphy and Lynch JJ.) on the 26th and 27th February, 1998.

Cur. adv. vult.

Barron J. 19th December, 1995

The plaintiff is a lay commissioner of the Land Commission having been appointed in 1980 at the age of 46. At the present time he still has six years of his appointment to run. The work of the Irish Land Commission has been lessening year by year and in 1984, consideration was given to the possibility of dissolving the Commission. Since that date, the work of the Commission lessened further and as of now has virtually ceased. In 1992, the Irish Land Commission (Dissolution) Act, 1992, was passed. This Act provides for a dissolution of the Irish Land Commission. Insofar as it is material to the present proceedings, s. 9 of the Act provides for compensation for lay commissioners who lose office by virtue of the Act.

Section 9 is as follows:-

"(1) The Minister, with the concurrence of the Minister for Finance, may, out of moneys provided by the Oireachtas, provide such compensation to or in respect of a Lay Commissioner ceasing to hold office by reason of section 2 of this Act as the Minister considers reasonable.

(2) This section shall have effect notwithstanding any other enactment."

These proceedings have been brought by the plaintiff seeking in effect a declaration that s. 9 is repugnant to the provisions of the Constitution. The case made on behalf of the plaintiff seeks such a declaration upon two main grounds:-

• (1) that the words "as the Minister considers reasonable" gives to the Minister a power which may be exercised in contravention of the provisions of Article 40.3 and Article 43 of the Constitution; and

• (2) that in permitting the Minister to assess the compensation, he is being permitted to act as a judge in his own cause.

The Act has not yet been brought into force. Upon this ground a preliminary point has been taken by the defendants. It is submitted that since the Act is not yet in force, the proceedings are premature. The fact that the Act has not been brought into operation does not affect its status as law. It is unlike a bill, where the legislative process has not been completed and where the statute as enacted may well differ from the bill. In my view, once an enactment has passed into law, this Court is empowered to determine its validity having regard to the provisions of the Constitution. The issue is not moot. The evidence shows that it is likely to be brought into force soon. In addition, negotiations have been taking place between officials in the Department of Agriculture and Food and the plaintiff as to the terms of the compensation to be actually paid to the plaintiff. Although...