Naisiúnta Léictreach Contraitheoir Éireann Coideachta Faoi Theorainn Ráthaoichta v The Labour Court, The Minister for Business, Enterprise and Innovation, Ireland and the Attorney General

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice John MacMenamin
• Judgment Date: 18 June 2021
• Neutral Citation: [2021] IESC 36
• Docket Number: Supreme Court appeal number: S:AP:IE:2020:000097
• Court: Supreme Court

Between

Naisiúnta Léictreach Contraitheoir Éireann Coideachta Faoi Theorainn Ráthaoichta

Applicant/Respondent

and

The Labour Court, The Minister for Business, Enterprise and Innovation, Ireland and the Attorney General

Respondents/Appellants

[2021] IESC 36

[2020] IESC 000

[2020] IEHC 178

Clarke CJ

O'Donnell J

MacMenamin J

Dunne J

Charleton J

Supreme Court appeal number: S:AP:IE:2020:000097

High Court record number 2017/146 JR

An Chúirt Uachtarach

The Supreme Court

Statutory interpretation – Statutory vires – Industrial Relations (Amendment) Act 2015 – Appellants appealing from High Court judgment – Whether Chapter 3 of the Industrial Relations (Amendment) Act 2015 complies with Article 15.2.1 of the Constitution

Facts: The respondent, Náisiúnta Leictreach Contraitheoir Eireann Cuideachta Faoi Theorainn Ráthaíochta (NECI), a company limited by guarantee representing small and medium sized electrical contractors, successfully applied for a judicial review of a Sectoral Employment Order, the subject of a recommendation by the Labour Court, under procedures laid down in Chapter 3 of the Industrial Relations (Amendment) Act 2015, and subsequently embodied in a statutory instrument, S.I. 251/2019. The effect of this Order was to set terms and conditions for workers across the entire electrical contracting area in the State. The recommendation was made in response to applications to the Labour Court from Connect trade union, and two employers’ groups, namely, the Electrical Contractors’ Association, and the Association of Electrical Contractors of Ireland, which were treated as a joint applicant by the Labour Court. The High Court (Simons J) had to deal with a range of issues. Two of the most significant questions were firstly, a challenge to the constitutionality of Chapter 3 of the 2015 Act, on foot of which the statutory instrument was promulgated; and secondly, NECI’s alternative case that, in making the recommendation on foot of which the statutory instrument in question was promulgated, the Labour Court had acted ultra vires the 2015 Act, specifically by failing to give reasons for its recommendation. NECI was successful on both of these claims. On the first issue, the High Court judge subsequently granted a suspended declaration that Chapter 3 of the 2015 Act violated Article 15.2.1 of the Constitution, which vests sole legislative power for the State in the Oireachtas, as he held the impugned provision empowered the Labour Court to make decisions which were legislative in nature; as a matter of logic, any procedures conducted under the impugned section would also be invalid. The appellants, the Labour Court, the Minister for Business Enterprise and Innovation, Ireland and the Attorney General, appealed to the Supreme Court from Simons J’s judgment delivered on the 23rd June, 2020 ([2020] IEHC 303). Five main issues arose for consideration: (i) the interpretation of certain terms contained in Chapter 3 of the 2015 Act; (ii) whether Chapter 3 of the 2015 Act complies with Article 15.2.1 of the Constitution; (iii) whether the enforcement provisions contained in the 2015 Act comply with Article 6 ECHR; (iv) the statutory vires issue, namely, whether the Labour Court furnished adequate reasons for its recommendation; and (v) whether in adopting and appending the Construction Workers Pension Scheme to the recommendation, the Labour Court acted ultra vires.

Held by MacMenamin J that he would set aside that part of the High Court judgment which held that Chapter 3 of the 2015 Act was repugnant to Article 15.2.1 of the Constitution. MacMenamin J held that he would uphold the High Court judgment on the ECHR issue, the statutory vires issue, and in relation to the adoption of the Construction Workers Pension Scheme in the Sectoral Employment Order. MacMenamin J held that he would remit the matter to a different panel of the Labour Court to prepare and furnish a recommendation giving reasons, in accordance with the statute. MacMenamin J held that such procedures as may be necessary in order to give effect to these orders were a matter for the Labour Court, subject to the legislation.

MacMenamin J held that he would hear counsel on the form of the orders which follow.

Set aside part of High Court judgment.

Judgment of Mr Justice Peter Charleton delivered on Friday 18 June 2021

1 Article 15.4.1° of the Constitution bars the Oireachtas from passing “any law which is in any respect repugnant to this Constitution or any provision thereof”, the Irish text making it clearer that there is no permission to legislate against the fundamental law: “Ní cead don Oireachtas aon dlí a achtú a bheach ar aon chuma in aghaidh an Bhunreachta seo nó in aghaidh aon fhorála den Bhunreacht seo.” In so far as that happens, such law is invalid, “gan bhail”. Articles 15.2 and 15.3 enable subordinate legislatures and provide for vocational councils. Neither have ever come to pass. These subordinate legislatures would be set up by the Oireachtas, for instance regionally, with limitations as to “powers and functions”, or in the case of vocational councils, on the basis of limitations as to “rights, powers and duties”. Thus, it is established in the text of the Constitution that delegation of law-making authority may originate from the Oireachtas and devolve to bodies so authorised but subject to express limitations which are in themselves set by the Oireachtas. But the possibilities for such devolution are necessarily limited. These sub-articles are one with the declaration in Article 5 that: “Ireland is a sovereign, independent democratic state.” Further, Article 6 in declaring that all “powers of government, legislative, executive and judicial, derive under God, from the people” establishes the democratic imperative as integral to the nature of the State since it is in the people that there is the sole right to “designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.” In concurring with the judgment of MacMenamin J, therefore, some observations may usefully be added as to the Constitution and the delegation of power.

2 Much of the drafting debate as to the change from the Constitution of Saorstát Éireann of 1922 to the 1937 Constitution centred on sovereignty, on the ultimate ownership of land being in the Irish people and on the necessity to declare and to emphasise the independence of the Irish Republic from any other polity. Yet technical legal measure in defining the nature of the State and in establishing a separation of powers on definite foundations were no less important; Hogan, The Origins of the Irish Constitution 1928–1941 (Dublin, Royal Irish Academy, 2012). Article 15.2 of the Constitution in continuing Article 12 of the earlier constitution, had its origins as a statement of independence but was also included so as to preserve that delegation of legislative powers to government ministers and local authorities which traditionally characterised the prior polity: “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” This is both declarative, that only the elected representatives of the Irish people may construct laws to govern them, and imperative, that the powers vested in the Oireachtas are to be exercised by Dáil Éireann, Seanad Éireann and the President. These cannot be alienated to any other body in such a way as to undermine the democratic nature of the State, declared in Article 5, and nor can the required mandate of the people to their elected representatives under Article 6 be shunned through sloughing off powers that the Constitution requires the Oireachtas to exercise.

Origin of laws

3 As those drafting the Constitution of 1937 were aware, laws are to be found not only in parliamentary legislative measures but also in the myriad of statutory rules and orders made by government and in the bye-laws made by local councils and other authorities. It does not appear to have been intended by any of those debating the wording of the Constitution that Article 15.2 would dry up these sources of legislation, quite the opposite; Hogan, 438, 459 (observation of George Gavan Duffy, later a judge of the High Court). Rather, a specific mischief was recognised whereby it was expected that the Oireachtas should legislate and in delegating would be confined to permitting only details to be formulated subordinately. Thus, Philip O'Donoghue, later a judge of the European Court of Human Rights, observed that the “the principles of legislation must be definitely enacted in the Statute.” But that “form, time and manner of carrying into effect the objects of the statute” could be left to regulation, though “any such rule which would seek to depart from the scope of the statute, impose new obligations or confer new rights” would be unlawful; Hogan, 480–481, 438. Such subordinate rule-making powers in a statute, according to the Attorney General, while clearly laws when promulgated by a delegated authority, “must be in conformity” with the primary legislation and “something necessary to enable the carrying out of” what is “in conformity with it strictly and literally.”

4 At that time, delegation to newly empowered parts of the British Empire, the conferring of dominion and other status, had been a part of the legislative task of Westminster since earlier in the century. What was of concern in the Observations on the Draft Constitution, of March 1937, was based, like the other considerations quoted, on keeping the legislature to its task. Hence, “Ministers and Departments” were not to be allowed to legislate outside the boundaries of what a statute necessitated, and the ultra vires rule in English law, which reigned in any excessive subordinate legislation inside the...