Condon v Minister for Labour

• Jurisdiction: Ireland
• Judge: KENNYJ.,O'HIGGINS C.J.
• Judgment Date: 01 January 1981
• Neutral Citation: 1980 WJSC-SC 44
• Date: 01 January 1981
• Docket Number: (178-1977),[1975 No. 5078P]
• Court: Supreme Court

CONDON v. MINISTER FOR LABOUR

CONDON AND ORS.

v.

THE MINSTER FOR LABOUR AND THE ATTORNEY GENERAL

Affirming High - 27/7/76

1980 WJSC-SC 44

O'Higgins C.J.

Kenny J.

Parke J.

(178-1977)

THE SUPREME COURT

1 JUDGMENT delivered the 11th day of December 1979by O'HIGGINS C.J.

2 The issue which was raised by this appeal while a simple one is also one of some importance. The Plaintiffs are all members of an association known as the "Irish Bank Officials Association". This Association entered into an agreement with another body representing the employing banks and known as the "Bank Staff Relations Committee". This agreement which was signed on the 30th June 1975 provided for certain rates of remuneration and conditions of employment for the period of twelve months commencing on the 1st June 1975. It was regarded with considerable disfavour by the Government, as providing for rates of remuneration outside the national norm and as being, on that account, potentially dangerous to the economy. Accordingly, legislation was introduced and passed quickly through the Oireachtas which purportedtoempower the Minister for Labour, in accordance with its provisions, to prohibit such increases of remuneration to bank employees as were determined to be, "at variance with the provisions or purposes of either the national agreements or this Act". This legislation was the Regulation of Bank (Remuneration and Conditions of Employment) (Temporary Provisions) Act 1975. The national agreements mentioned in the Act were the National Wage Agreements of 1974 and 1975. Section 1 of the Act provided that it should both come into operation and having been brought into operation should expire on such days as the Minister should be orders appoint. Having been passed the Act was immediately brought into operation by the Minister pursuant to the provisions of Statutory Instrument No. 304 of 1975. The commencement date for the Act was the 15th December 1975. When the Act was brought into operation the Plaintiffs commenced these proceedings by Plenary Summons on the 23rd December 1975. In their Statement of Claim they allege on various grounds that the Acts was invalid having regard to the provisionson the Constitution and claim declarations that both the Act and the implementing order were invalid and of no effect. A Defence was filed on behalf of the Minister and the Attorney General on April 1st 1976 in which the various contentions put forward by the Plaintiffs were denied and in which, in effect, the constitutionality of the impugned legislation and order was asserted. Subsequent to the filing on this Defence the Minister made an Order entitled

3 The Regulation of Banks (Remuneration and Conditions of Employment) (Temporary Provisions) Act 1975Expiration Order 1976 (S.I. 137 of 1976)

4 under which the impugned Act and Order expired as from the 15th June 1976. This having been done the Defendants sought liberty, and were permitted, to amend their Defence by pleading, as an additional ground of defence, that by reason of the expiration of the Act the Plaintiffs' Statement of Claim disclosed no cause of action "there being no subject matter in respect of which the relief claimed herein can operate". A preliminary issue was then raised prior to the hearing of the action, claiming thatthe same should be dismissed on the grounds put forward in this amended Defence. Mr. Justice McWilliam having found against the Defendants on this preliminary issue, this appeal has been brought to this Court. The Court has already decided that the appeal should stand dismissed. The purpose of the Court's sitting to-day is to state the reasons for thatdecision.

5 The Defendants" submission was to the effect that as the impugned Act and expired to consider its validity would be to engage in an academic exercise which would be outside the function of the Courts under Article 34 of the Constitution. It was conceded that if money had been paid or contracts entered into under the Act or if rights had been adversely affected then a question would arise which would warrant a decision on validity by the Court. It was contended, however, that nothing of this kind has taken place and that accordingly the question whether or not the law was within the competence of the Legislature to enact had become purely academic. Even if I were prepared to accept, which I am not, that rights have notin fact been interfered with, it appears to me that the implications in this argument in the context of this case are extremely dangerous to constitutional rights.

6 In large measure, the preservation of constitutional rights depend on the manner in which the Courts exercise the power of judicial review over legislation. A strong, healthy and concerned public opinion may in the words of Edmund Burke "snuff the approach of tyrrany in every tainted breeze" but effective resistance to unwarranted encroachment on constitutional guarantees and rights depends, in the ultimate analysis, on the Courts. If access to the Courts is denied or prevented or obstructed, then such encroachment being unchallenged may become habitual and therefore acceptable. In this instance a law alleged to constitute an interference with the constitutional rights of the Plaintiffs, having been in operation from December 1975 to June 1976, was terminated by act of the Minister for Labour. It was terminated before a decision on its validity could be pronounced by the High Court. The Minister who caused the Act to expire by MinisterialOrder has contended that its provisions did not contravene the Constitution. Implicit in such a defence is an assertion on behalf of the Executive of an intention, if thought proper to do so, to introduce similar legislation in the future. In 1973, two years before, identical legislation was introduced by the Government and passed by the Legislature under the title

7 Regulation of Banks (Remuneration and Conditions of Employment) (Temporary Provisions) Act 1973.

8 This Act expired or was terminated in the same manner by Ministerial Order. It was in operation from July 1973 to December 1973. I do not know whether any question as to its validity was in fact raised in the High Court, but obviously the legislation would have expired before such a question, if raised, could have been determined.

9 If this Court pronounced that temporary legislation of this kind should be immune from judicial review merely because it had expired before the question of its validity could be examined serious consequences could ensue. All legislation passed by the Oireachtas is presumed to be valid. If the Oireachtas were free to enact temporarylegislation creating offences and providing for serious penalties (as this legislation does) which, on its expiry, escaped examination in the Courts, a form of legislative intimidation could be exercised. More serious, however, by permitting such to happen this Court would be failing to exercise that vigilance and care upon which constitutional rights and guarantees depend for their protection. In my view, this Court could not countenance such a development.

10 These are my reasons for deciding that this appeal should be dismissed. I may add that I have had the opportunity of reading and considering the Judgment about to be delivered by...