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

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

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 parameters fixed by the primary enactment, was deemed adequate to restrain the potential mischief in delegated legislation. This was trenchantly described by O'Donoghue thus:

Statutory Rules and Orders, as the title suggests, are intimately related with legislative enactments. They are considered part of the law and have the force of law but alone do not constitute legislation. They must always be referred back to the enabling statute under which they are made. Very little consideration will indicate the abuses which would grow up of the legislature contented itself with enacting loose and indefinite principles adding that the Minister could give effect to such principles by rules regulations.

Legislative models

5 The language of limitation, of principle, of filling in detail, of primary legislation being required to set clear boundaries and that definite objects must be found within the statutory text to validate secondary legislation is language expressing a concept that continues into the analysis of the boundaries of permissible delegation in modern constitutional analysis by this Court. The commentators on the 1937 draft wrote in a simpler age, when legislation was less complex, with quasi-judicial decision making sparsely resorted to as a societal structure, at a time prior to effective planning regulation, with scarcely any oversight of financial institutions, and where the requirements of a modern state did not insistently demand bodies outside the traditional ambit of government, courts and legislature.

6 A second factor not considered in any of the documents gathered and analysed by Hogan is what in other contexts is akin to the right of appeal from a quasi-judicial decision, or even an administrative decision, whereby decisions can be reviewed through fresh determination in a court. The possibility of keeping control over quasi-judicial decisions through a legislative provision enabling a court appeal is akin, where delegated legislation is concerned, to the bringing back before the Oireachtas of the legislative measure delegated to a Minister or local authority and requiring some measure of democratic scrutiny. This was also part of the Westminster approach, and, see below as to the three models, it seems, first appears in this jurisdiction within a decade of the referendum adopting the Constitution in sections 4 and 6 of the Local Government Act 1946.

7 There are three common formulations in delegated legislation whereby democratic scrutiny is potentially to be reaffirmed by the Oireachtas. These models are in the Westminster procedure of the British parliament as well; Craig, Administrative Law (8th edition, London, 2016) 16–008. The first, and most common to legislation which delegates powers to local authorities, is where the local authority sets rates or other charges, such as harbour fees, or makes rules for the use of public spaces: there is no potential for debate before the Oireachtas as to the balance or lack thereof of these decisions. The only remedy for those claiming to be affected would be judicial review as to reasonableness and vires under the primary legislation. Partly, the reason for such local rules not returning to the Oireachtas is that the local authorities have their own debating bodies and their membership is subject to local election. Hence, harbour charges for using ports are laid down by local authorities but the classification of vessels, the extent of the charges and the conditions of use are matters outside the remit of any body save that of local government, properly so called for this reason but exercising democratic powers devolved from central government; see Island Ferries Teoranta v Ireland [2015] IESC 95, [2015] 3 IR 637 as an example. In that first instance, there is no reappraisal by...