Excessive Delegation
Cases
Laurentiu v. Minister for Justice
[1999] 4 IR 26
Hamilton C.J.
20th May, 1999
I agree with the judgments to be delivered by Denham and Keane JJ.
Denham J.
This is an appeal by the respondents (hereinafter referred to as the State) against the decision of the High Court (Geoghegan J.) delivered on the 22nd January, 1999. The learned High Court Judge granted a declaration that s. 5 (1)(e) of the Aliens Act, 1935, was not carried over by Article 50 of the Constitution of Ireland, was inconsistent with Article 15.2 of the Constitution of Ireland and did not form part of Irish law. The learned High Court Judge also made consequential declarations that art. 13 (1) of the Aliens Order, 1946, and the deportation order regarding the applicant were invalid.
The case turns on the issue as to whether the legislature could, in the terms of s. 5(1)(e) of the Aliens Act, 1935, delegate to the Minister the power to deport aliens, or whether it is an impermissible delegation of legislative power contrary to Article 15.2.1 of the Constitution of Ireland.
Submissions
Counsel on behalf of the State, submitted that s. 5(1)(e) of the Aliens Act, 1935, and art. 13 of the Aliens Order, 1946, are valid. He submitted that the right of the State to control the entry of aliens, their activity in the State and their departure, is part of the sovereign right of the State. The exercise of that control is primarily an executive and administrative function. The entitlement of aliens is dependent on the consent of the appropriate authority. If that consent is refused or withdrawn the alien has no right to stay in the State. He submitted that what the Minister did was within the four corners of the Aliens Act, 1935. He submitted that the policy of the Act is clear: aliens are only allowed into the State and to remain in the State with the permission of the Minister for Justice. The relevant jurisprudence, he submitted, is to be found in Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, which was developed and supplemented in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232. He submitted that the appropriate methodology is to see if the enabling legislation, that is, s. 5 of the Aliens Act, 1935, makes it inevitable and necessary that the Minister in making regulations under the Act would breach Article 15.2.1 of the Constitution. He submitted that applying that test the Act did not fail. He supported his argument by reference to the judgment of Keane J. in Carrigaline Company Limited v. Minister for Transport [1997] 1 I.L.R.M. 241.
Counsel for the applicant, submitted that s.5(1)(e) of the Aliens Act, 1935, gave excessive legislative powers to the Minister for Justice in that it effectively left the Minister at large insofar as the making of a ministerial order was concerned and it did not set out principles and policies upon which deportation orders were to be made; consequently, it did not survive the enactment of the Constitution. Further, he submitted that art. 13 of the Aliens Order, 1946, is a form of legislation outside the powers of legitimate delegation and contrary to Article 15.2.1 of the Constitution of Ireland. In oral argument he considered that there were three issues for the Court:-
1. What is the proper test to apply in relation to Article 15.2.1 of the Constitution of Ireland? Is it the “principles and policies” test of Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381 or has that been qualified by Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232?
2. Is the executive power of the State to deport an alien free-standing or can it be exercised only through legislation?
3. Given that the Oireachtas has legislated, does s. 5(1)(e) of the Aliens Act, 1935, meet the appropriate test, which he submitted is the principles and policies test set out in Cityview ?
Relevant Constitutional Articles
The relevant constitutional Articles are:-
Article 5
“Ireland is a sovereign, independent, democratic state.”
Article 6
“1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is 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.
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
Article 15.2.1
“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.”
Article 28.2
“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
Article 29.4.1
“The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.”
Article 34.1
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
The Statutory Scheme
The statutory scheme is the Aliens Act, 1935. The long title of the Act described it as:-
“An Act to provide for the control of aliens and for other matters relating to aliens.”
The term “alien” was defined as meaning:
“a person who is not a citizen of Saorstat Eireann .”
Section 5 set out provisions for the control of aliens. Section 5(1) provides, inter alia:-
“The Minister may, if and whenever he thinks proper, do by order (in this Act refer to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say:-
¦
(e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstat Eireann and provide for and authorise the making by the Minister of orders for that purpose.”
As a consequence of that legislation the Minister for Justice enacted the Aliens Order, 1946. Article 13 thereof stated:-
“(1) Subject to the restrictions imposed by the Aliens Act, 1935 (No. 14 of 1935), the Minister may, if he deems it to be conducive to the public good so to do make an order (in this Order referred to as a deportation order) requiring an alien to leave and to remain thereafter out of the State.
(2) An Order made under this Article may be made subject to any conditions which the Minister may think proper.
(3) An alien with respect to whom a deportation order is made shall leave the State in accordance with the order, and shall thereafter so long as the Order is in force remain out of the State.
(4) An alien with respect to whom a deportation order is made, or a recommendation is made by a court with a view to the making of a deportation order, may be detained in such a manner as may be directed by the Minister, and may be placed on a ship, railway train or road vehicle about to leave the State, and shall be deemed to be in legal custody whilst so detained, and until the ship, railway train or road vehicle finally leaves the State.
(5) The master of any ship and the person in charge of any passenger railway train or passenger road vehicle bound for any place outside the State shall, if so required by the Minister or by an immigration officer, receive an alien against whom a deportation order has been made and his dependants, if any, on board such ship, railway train or road vehicle and afford him and them proper accommodation and maintenance during the journey.
(6) Where a Deportation Order is made in the case of any alien the Minister may, if he thinks fit, apply any money or property of the alien in payment of the whole or any part of the expenses of or incidental to the transport from the State and the maintenance until departure of the alien and his dependants, if any.”
Precedent
There has been significant case law on Article 15.2.1 of the Constitution. The first important analysis was in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413. In that case Hanna J. stated at p. 421:-
“It is axiomatic that powers conferred upon the Legislature to make laws cannot be delegated to any other body or authority. The Oireachtas is the only constitutional agency by which laws can be made. But the Legislature may, it has always been conceded, delegate to subordinate bodies or departments not only the making of administrative rules and regulations, but the power to exercise, within the principles laid down by the Legislature, the powers so delegated and the manner in which the statutory provisions shall be carried out.”
Here, in effect, is the beginning of the principles and policies test. In this case it was alleged that the Pigs and Bacon Acts, 1935 and 1937, were unconstitutional under article 12 of the Constitution of 1922 whereby the legislature was given exclusive power to make laws and were also unconstitutional under Article 15 of the Constitution of Ireland, 1937.
The first modern statement of a principles and policy test was in Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, where at pp. 398 and 399 O’Higgins C.J. stated:-
“The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the legislature and the executive in a modern State. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
This important case was itself based on a situation where, as McMahon J. stated in the High Court at p. 389:-
“[i]t was agreed by the parties that under the Constitution (in particular Article 6, s. 2, and Article 15, s. 2, sub-s. 1) there is a limit upon the extent to which legislative power may be delegated to subordinate agencies by the Oireachtas, and that it is not competent for the Oireachtas by such delegation to abdicate its legislative function.”
The principles and policies test continued to be applied. Thus, in The State (Gilliland) v. Governor of Mountjoy Prison [1987] I.R. 201 Barrington J., having referred to Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, stated at p. 222:-
“In the Extradition Act, 1965, the Oireachtas has laid down certain principles and policies which are incorporated in the law governing extradition in this country. It has also established certain machinery and procedures for controlling applications for extradition. But it has left to the Government the question of whether an extradition treaty should be entered into with a particular country and what additional safeguards should be incorporated in it.”
The learned judge applied the principles and policies test to the relevant Act. However, the decision as to whether Ireland should enter into an extradition treaty with a particular country and the incorporation of additional safeguards, if any, was left to the Government. It is of relevance to this case to note that the function in issue – to determine whether an extradition treaty should be entered into with a particular country – is a classic example of an executive function. The legislature did not impinge on the executive function. The legislature did not delegate the power to a minister. The executive, Government, proceeds with its function.
In McDaid v. Sheehy [1991] 1 I.R. 1, on the issue of the constitutionality of s. 1 of the Imposition of Duties Act, 1957, (which empowered the Government to, by order, impose, vary or terminate any excise, custom or stamp duty) Blayney J., whilst a judge of the High Court, applied a principles and policy test and stated at p. 9:-
“When this test is applied to the provisions of the Act of 1957 giving the Government power to impose customs and excise duties, and to terminate and vary them in any manner whatsoever, I have no doubt that the only conclusion possible is that such provisions constitute an impermissible delegation of the legislative power of the Oireachtas. The question to be answered is: Are the powers contained in these provisions more than a mere giving effect to principles and policies contained in the Act itself? In my opinion they clearly are. There are no principles or policies contained in the Act ¦ The fundamental question in regard to the imposition of customs or excise duties on imported goods is first, on what goods should a duty be imposed, and secondly, what should be the amount of the duty? The decision on both these matters is left to the Government. In my opinion, it was a proper subject for legislation and could not be delegated by the Oireachtas. I am satisfied accordingly that the provisions of the Act of 1957 which I cited earlier are invalid having regard to the provisions of the Constitution”
Geoghegan J. found the above reasoning very helpful.
However, in McDaid v. Sheehy [1991] 1 I.R. 1 on appeal, as the order in question had been validated by a section of the Finance Act, 1976, the Supreme Court did not consider the constitutional issue. Indeed, Finlay C.J. appeared to indicate a warning when he said at p. 19:-
“The settled jurisprudence of this Court, to which I have referred, is against deciding the issue of constitutional validity in these circumstances. On the issues potentially arising in the instant case, there are practical considerations strongly supporting that jurisprudence.
Amongst the many issues which could arise in the course of a challenge to the constitutional validity of this section would be questions as to whether in any particular instance, if the delegated legislation were impermissibly wide, that resulted in the annulment of both the statute and the order made pursuant to it, or whether it annulled the order only (c.f. Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232).”
In Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232, at issue was what may be called a Henry VIII clause i.e. a statutory provision which gives authority to an administrative body to make delegated legislation which may amend legislation. Finlay C.J. stated at p.244:-
“The fourth submission made on behalf of the applicant is that the provisions of article 38, as inserted by the Regulations of 1979, are in direct contradiction to the provisions of s.7 of the Social Welfare Act, 1979, and, as such, are an impermissible intervention by the Minister pursuant to the powers of making regulations vested in him by s. 75 of the Act of 1952, in the legislative function and is, therefore, an unconstitutional exercise of that power which breaches Article 15, s.2 of the Constitution. I accept that this submission is correct ¦
Quite clearly, for the Minister to exercise a power of regulation granted to him by these Acts so as to negative the expressed intention of the legislature is an unconstitutional use of the power vested in him.”
The courts have held this type of delegated legislation to be unconstitutional, even if it does not create a new principle. This type of delegated legislation is not in issue in this case. Finlay C.J. set out at pp. 240 and 241 a methodology. He stated:-
“The impugned section having been enacted in 1952 is entitled to the presumption with regard to constitutional validity which has been laid down by this Court, and in particular falls to be construed in accordance with the principles laid down in the decision of this Court pronounced in East Donegal Co-Operative v. Attorney General [1970] I.R. 317. This means that it must be construed so that as between two or more reasonable constructions of its terms that which is in accordance with the provisions of the Constitution will prevail over any construction not in accordance with such provisions. Secondly, it must be implied that the making of regulations by the Minister as is permitted or prescribed by s. 75 of the Act of 1952 is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice and, therefore, that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to that section contravene the provisions of Article 15, s. 2 of the Constitution. The Court is satisfied that the terms of s. 75 of the Act of 1952 do not make it necessary or inevitable that a Minister for Social Welfare making regulations pursuant to the power therein created must invade the function of the Oireachtas in a manner which would constitute a breach of the provisions of Article 15, s. 2 of the Constitution. The wide scope and unfettered discretion contained in the section can clearly be exercised by a Minister making regulations so as to ensure that what is done is truly regulatory or administrative only and does not constitute the making, repealing or amending of law in a manner which would be invalid having regard to the provisions of the Constitution.
Without the necessity, therefore, for the Court to decide whether the terms of the Regulations of 1979, which have been quoted in this decision, do in fact constitute an invasion of the legislative function of the Oireachtas, the Court is satisfied that the applicant has not shown that the provision of s. 75 of the Social Welfare Act, 1952, is invalid, having regard to the provisions of the Constitution and will so declare.”
This methodology applies the presumption of constitutional validity: the rule of construction that where there are two or more reasonable constructions that which is constitutional will prevail. Specifically, it must be implied that the making of delegated legislation by the Minister is intended by the legislature to be in accordance with constitutional justice. It may be summarised by inquiring if the impugned regulation makes it necessary or inevitable that the Minister making regulations pursuant to the power must invade the power of the legislature contrary to Article 15.2. This “necessary or inevitable” test is apt in construing Henry VIII clauses, which was the issue in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232.
European Union
The Oireachtas is no longer the sole and exclusive legislature for the State. European Union law applies directly to Ireland and membership necessitates certain legislation in Ireland. Section 3(2) of the European Communities Act, 1972, enables Ministers by regulation to implement the law. It was held in Meagher v. The Minister for Agriculture [1994] 1 I.R. 329, that the power to make regulations pursuant to s. 3(2) of the Act of 1972, is necessitated by the obligations of membership of the State of the European Union and is therefore by virtue of Article 29.4.3, 4 and 5 immune from constitutional challenge. The community law has primacy.
Article 15.2 cannot be read alone. It must be read with Article 29.4.5. Article 189 of the Treaty of Rome empowers the Council and Commission to, inter alia, make regulations and issue directives. A regulation has general application and is binding in its entirety and directly applicable to states. A directive is binding as to the result to be achieved. Article 189 leaves it to the national authority to chose the form and method for incorporating the European law into national law. In Meagher v. The Minister for Agriculture [1994] 1 I.R. 329, the Minister in his choice had to have due regard to Articles 15.2 and 29.4.5. In that case the Minister made regulations under s. 3 of the Act of 1972, and this Court applied the principles and policies test. I stated at p. 365:-
“If the directive left to the national authority matters of principle or policy to be determined then the ‘choice’ of the Minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined by the national authority, where the situation is that the principles and policies were determined in the directive, then legislation by a delegated form, by regulation, is a valid choice. The fact that an Act of the Oireachtas has been affected by the policy in a directive, is a ‘result to be achieved’ wherein there is now no choice between the policy and the national Act. The policy of the directive must succeed. Thus where there is in fact no choice on a policy or a principle it is a matter appropriate for delegated legislation. If the directive or the Minister envisaged any choice of principle or policy then it would require legislation by the Oireachtas.”
Thus even where, as in this case, the regulation amended a statute it was not a breach of Article 15.2 because it did not determine principles or policies – rather those principles and policies had been determined in the relevant Council directives, which are binding as to the results to be achieved.
This analysis is of interest to the Henry VIII type clause – but is tangential to this case. However, it does show the strength of the principles and policies test in our jurisprudence.
Comparative case law
United States of America
Counsel referred to comparative case law. Cases of the United States of America appear to have exercised an influence on the decision in Pigs Marketing Board v. Donnelly (Dublin) Ltd . [1939] I.R. 413. It is of importance to note that there is not a great body of jurisprudence in the United States on this aspect of constitutional law.
In Panama Refining Co. v. Ryan (1935) 293 U.S. 388, federal legislation was struck down on the ground of excessive delegation. Hughes C.J., in delivering the opinion of the Court, stated at p.421:-
“The Constitution provides that ‘All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ Art.I, § 1. And the Congress is empowered “To make all laws which shall be necessary and proper for carrying into execution” its general powers. Art.I, § 8, par. 18. The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.”
In concluding on this topic the Chief Justice stated at p. 430:-
“Thus, in every case in which the question has been raised, the Court has recognised that there are limits of delegation which there is no constitutional authority to transcend. We think that § 9 (c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress had declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited.
If § 9 (c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its law-making function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its law-making function, the Congress could at will and as to such subjects as it chose transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government.”
In the same year in A.L.A. Schechter Poultry Corp. et al v. United States (1935) 295 U.S. 495 the Court stated at p. 528:-
“Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.”
The Court applied the test set out in Panama Refining Co. v. Ryan (1935) 293 U.S. 388, and looked to the statute to see if Congress had overstepped these limitations – whether it had itself established the standards of legal obligation, thus performing the essential legislative function or by failure to enact the standards had attempted to transfer the function to others. Whilst neither decision has been overruled by the Supreme Court there appears to have developed a more relaxed view on the issue of delegated legislation; however, principles are required to be stated by the legislature.
Arising out of concern about sentencing disparities the United States Congress passed the Sentencing Reform Act, 1984, which established the United States Sentencing Commission as an independent body in the judicial branch with power to create binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offences and defendants according to specific and detailed factors. In Mistretta v. United States (1989) 488 U.S. 361, the petitioner claimed that the Commission constituted a violation of the separation of powers principle and that Congress had delegated excessive authority to the Commission to structure the guidelines. It was held that the sentencing guidelines were constitutional since Congress neither delegated excessive legislative power to the Commission nor violated the separation of powers principle by placing the Commission in the judicial branch, by requiring federal judges to serve on the Commission and to share their authority with non-judges or by empowering the President to appoint Commission members and to remove them for cause. On the delegation of power issue Blackmun J., in delivering the opinion of the Court stated at p. 371:-
“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that ‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,’ U.S. Const., Art I. § 1, and we long have insisted that ‘the integrity and maintenance of the system of government ordained by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark ,143 U.S. 649, 692 (1892). We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate branches. In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: ‘In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.’ J.W. Hampton, Jr., & Co. v. United States , 276 U.S. 394, 406 (1928). So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorised to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’ Id., at 409.
Applying this ‘intelligible principle’ test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. See Opp Cotton Mills, Inc. v. Administrator, Wage and Hour Div. of Dept. of Labour , 312 U.S. 126, 145 (1941) (“In an increasingly complex society Congress obviously could not perform its functions if it were obliged to find all the facts subsidiary to the basic conclusions which support the defined legislative policy”); see also United States v. Robel , 389 U.S. 258, 274 (1967) (opinion concurring in result). “The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function.” Panama Refining Co. v. Ryan , 293 U.S. 388, 421 (1935). Accordingly, this Court has deemed it”constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” American Power & Light Co. v. S.E.C. , 329 U.S. 90, 105 (1946).
Until 1935, this Court never struck down a challenged statute on delegation grounds ¦
In light of our approval of these broad delegations, we harbour no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to ‘assure the meeting of the purposes of sentencing as set forth’ in the Act; to ‘provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records ¦ while maintaining sufficient flexibility to permit individualized sentences’, where appropriate; and to ‘reflect, to the extent practicable, advancement in knowledge of human behaviour as it relates to the criminal justice process,’ 28 U.S.C. § 991(b)(1). Congress further specified four ‘purposes’ of sentencing that the Commission must pursue in carrying out its mandate: ‘to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense’; ‘to afford adequate deterrence to criminal conduct’; ‘to protect the public from further crimes of the defendant’; and ‘to provide the defendant with needed ¦ correctional treatment,’ 18 U.S.C. § 3553(a)(2).
In addition, Congress prescribed the specific tool – the guidelines system – for the Commission to use in regulating sentencing. More particularly, Congress directed the Commission to develop a system of ‘sentencing ranges’ applicable ‘for each category of offense involving each category of defendant’, 28 U.S.C. §994(b). Congress instructed the Commission that these sentencing ranges must be consistent with pertinent provisions of Title 18 of the United States Code and could not include sentences in excess of the statutory maxima. Congress also required that for sentences of imprisonment, ‘the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment,’ §994(b)(2). Moreover, Congress directed the Commission to use current average sentences ‘as a starting point’ for its structuring of the sentencing ranges. §994(m).
To guide the Commission in its formulation of offense categories, Congress directed it to consider seven factors: the grade of the offense; the aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a particular sentence may have on others; and the current incidence of the offense, §§994(c)(1)-(7). Congress set forth 11 factors for the Commission to consider in establishing categories of defendants. These include the offender’s age, education, vocational skills, mental and emotional condition, physical condition (including drug dependence), previous employment record, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for a livelihood. §994(d)(1)-(11). Congress also prohibited the Commission from considering the ‘race, sex, national origin, creed, and socioeconomic status of offenders,’ §994(d), and instructed that the guidelines should reflect the ‘general inappropriateness’ of considering certain other factors, such as current unemployment, that might serve as proxies for forbidden factors, §994(e).
In addition to these overarching constraints, Congress provided even more detailed guidance to the Commission about categories of offenses and offender characteristics. Congress directed that guidelines require a term of confinement at or near the statutory maximum for certain crimes of violence and for drug offenses, particularly when committed by recidivists, §994(h). Congress further directed that the Commission assure a substantial term of imprisonment for an offense constituting a third felony conviction, for a career felon, for one convicted of a managerial role in a racketeering enterprise, for a crime of violence by an offender on release from a prior felony conviction, and for an offense involving a substantial quantity of narcotics, §994(i). Congress also instructed ‘that the guidelines reflect ¦ the general appropriateness of imposing a term of imprisonment’ for a crime of violence that resulted in serious bodily injury. On the other hand, Congress directed that guidelines reflect the general inappropriateness of imposing a sentence of imprisonment ‘in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense,’ §994(j). Congress also enumerated various aggravating and mitigating circumstances, such as, respectively, multiple offenses or substantial assistance to the Government, to be reflected in the guidelines, §§994(l) and (n). In other words, although Congress granted the Commission substantial discretion in formulating guidelines, in actuality it legislated a full hierarchy of punishment – from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives – and stipulated the most important offense and offender characteristics to place defendants within these categories.
We cannot dispute petitioner’s contention that the Commission enjoys significant discretion in formulating guidelines. The Commission does have discretionary authority to determine the relative severity of federal crimes and to assess the relative weight of the offender characteristics that Congress listed for the Commission to consider. See §§994(c) and (d) (Commission instructed to consider enumerated factors as it deems them to be relevant). The Commission also has significant discretion to determine which crimes have been punished too leniently, and which too severely, §994(m). Congress has called upon the Commission to exercise its judgment about which types of crimes and which types of criminals are to be considered similar for the purposes of sentencing.
But our cases do not at all suggest that delegations of this type may not carry with them the need to exercise judgment on matters of policy. In Yakus v. United States 321 U.S. 414 (1994), the Court upheld a delegation to the Price Administrator to fix commodity prices that ‘in his judgment will be generally fair and equitable and will effectuate the purposes of this Act’ to stabilize prices and avert speculation. See id, at 420. In National Broadcasting Co. v. United States 319 U.S. 190 (1943), we upheld a delegation to the Federal Communications Commission granting it the authority to promulgate regulations in accordance with its view of ‘public interest’. In Yakus , the Court laid down the applicable principle:
‘It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework ¦
¦ only if we could say that there is an absence of standards for the guidance of the Administrator’s action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would we be justified in overriding its choice of means for effecting its declared purpose. ¦” 321 U.S., at 425-426.’
Congress has met that standard here. The Act sets forth more than merely an ‘intelligible principle’ or minimal standards. One court has aptly put it: ‘The statute outlines the policies which prompted establishment of the Commission, explains what the Commission should do and how it should do it, and sets out specific directives to govern particular situations.’ United States v. Chambless , 680 F. Supp. 793, 796 (ED La. 1988).
Developing proportionate penalties for hundreds of different crimes by a virtually limitless array of offenders is precisely the sort of intricate, labour-intensive task for which delegation to an expert body is especially appropriate. Although Congress has delegated significant discretion to the Commission to draw judgments from its analysis of existing sentencing practice and alternative sentencing models, ‘Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.’ Yakus v. United States , 321 U.S. 414, at 425-426. We have no doubt that in the hands of the Commission ‘the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose’ of the Act. Sunshine Coal Co. v. Adkins , 310 U.S. 381, 398 (1940).”
This judgment sets out clearly the policies established by the legislature of the United States. The Supreme Court of the United States applied the “intelligible principle” test and found the delegation to be sufficiently specific and detailed. It found that Congress had requested the Commission to meet three goals which were spelt out. Further, Congress specified four purposes which the delegated authority must pursue, Congress prescribed the tool for the Commission to use and Congress directed the Commission, as a guide, to consider seven specified factors. In addition, Congress set forth eleven factors for the Commission to consider in establishing categories and the Congress also provided detailed guidance about categories of offences and offender characteristics. This case shows modern legislation in the United States of America giving a delegated discretion yet with detailed principles and standards set out by the legislature.
Australia
Comparative case law was also cited from Australia. In Chu Kheng Lim and Ors. v. Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 C.L.R. 1, the High Court of Australia considered the nature of the power to deport aliens. Mason C.J. described at p. 10 the authority to deport an alien as “an incident of executive power”.Brennan, Deane and Dawson JJ. in a joint judgment stated at pp. 29 and 30:-
“The power to exclude or expel even a friendly alien is recognised by international law as an incident of sovereignty over territory. As Lord Atkinson, speaking for a strong Judicial Committee of the Privy Council, said in Attorney General for Canada v. Cain [1906] A.C. 542, at p. 546:-
‘One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government, or to its social or material interests: Vattel,Law of Nations, book 1, s. 231; book 2, s. 125.’
His Lordship added:-
‘The Imperial Government might delegate those powers tothe governor or the Government of one of the Colonies, either by royal proclamation which has the force of a statute – Campbell v. Hall – or by a statute of the Imperial Parliament, or by the statute of a local Parliament to which the Crown has assented. If this delegation has taken place,the depository or depositories of the executive and legislative powers and authority of the Crown can exercise those powers and that authority to the extent delegated as effectively as the Crown could itself have exercised them.’ (Emphasis added).
The question for consideration in Attorney General (Canada) v. Cain was whether the Canadian statute 60 and 61 Vict. c.11 had validly clothed the Dominion Government with the power to expel an alien and to confine him in custody for the purpose of delivering him to the country whence he had entered the Dominion. The Judicial Committee concluded that it had. As the emphasised words in the above passage indicate, the power to expel or deport a particular alien, and the associated power to confine under restraint to the extent necessary to make expulsion or deportation effective, were seen as prima facie executive in character. ¦
In this Court, it has been consistently recognized that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorising the Executive to restrain an alien in custody to the extent necessary to make the deportation effective.”
In this case we see the principle that control of aliens isprima facie a matter for the executive. Also touched upon is the matter of the transfer of power to a dominion and the role of parliament and the executive. However, the cases do not refer to or relate to a country with a written Constitution where the separation of powers has been established and is relevant to the issue. The cases relate to British constitutional governance with the royal prerogative and parliamentary sovereignty, not a written Constitution with a separation of powers, such as is found in Ireland and the United States of America.
Separation of Powers
This is the first challenge to the Aliens Act, 1935, on Article 15.2 grounds. It is a novel issue upon which to review the Act. As O’Dalaigh C.J. said in The State (Quinn) v. Ryan [1965] I.R. 70 at p. 120:-
“¦ a point not argued is a point not decided; and this doctrine goes for constitutional cases ¦ as well as for non-constitutional cases.”
The submission calls up for consideration fundamental concepts as to the separation of powers and the nature of those separated powers.
Article 12 of the Constitution of Saorstat Eireann stated,inter alia,that the sole and exclusive power of making laws for the peace, order and good government of the Irish Free State was vested in the Irish Parliament. This wording had no precedent in any of the dominion constitutions. The reason for this wording given by Leo Kohn inThe Constitution of the Irish Free State (London, 1932) at p.181, was:-
“Its object was not indeed to fix the position of Parliament in the general framework of the Constitution, but to exclude any form of legislative interference by the British Parliament.”
An echo of that wording may be seen in the Constitution of Ireland, 1937. It established clearly that the law-making authority for the State – the sole and exclusive power of making laws for the State – is vested in the Oireachtas.
That legislative power must be seen in the context of the Constitution of Ireland as a whole. The scheme created by the Constitution is based on the separation of powers. Ireland is a democratic State: Article 5. All powers of government, legislative, executive and judicial derive from the people: Article 6.1. These powers are exercisable only by the organs of State established by the Constitution: Article 6.2. In a classic exposition of the separation of powers three branches of government are established. To the legislature is given the sole and exclusive powers of making laws: Article 15.2.1. To the government is given the executive power of the State: Article 28.2. To the judges is given the judicial power: Article 34.1.
Thus, the general structure of the Constitution follows the doctrine of the separation of powers. A similar approach, though not identical, can be seen in the Constitution of the United States of America. The Irish structure is not a simple or clear-cut separation of powers. There is overlapping and impingement of powers. However, in a general sense there is a functional division of power.
Historically, the control of aliens is for the executive. Aliens are not mentioned in the Constitution. However, the executive of a state, as an incident of sovereignty, has power and control over aliens. If this case simply raised the issue of the nature and extent of executive power as to aliens it would be a different matter. It does not.
What is in issue?
The nature of sovereignty is not in issue. Nor is the ambit of the executive powers of the State. At issue is the power of the legislature to delegate. If the Act had never been passed then issues of sovereignty and executive powers would have been relevant. But the legislature having seized itself of the subject, its power to delegate, as it purported to do to the Minister, is the kernel of the case and the issue for decision. The constitutional power of the legislature to legislate being found in Article 15.2, this case falls to be decided in the light of that Article and relevant case law.
Delegated Legislation
The Oireachtas is the legislative organ of the State. It has the exclusive power to legislate under the Constitution, subject to the European Union which does not arise in this case. However, it must exercise this power in accordance with the Constitution. Article 15.2 means that there are limits on the Oireachtas – while it is given the power to legislate it is the sole body with that power and as such has a duty to legislate and is constitutionally prohibited from abdicating its power. In accordance with the Constitution it is for the court to determine whether the constitutional framework has been breached.
There are limits to permissible delegation by the organs created by the Constitution. The Oireachtas may not abdicate its power to legislate. To abdicate would be to impugn the constitutional scheme. The scheme envisages the powers (legislative, executive, judicial) being exercised by the three branches of government – not any other body. The framework of the Constitution, the separation of powers, the division of power, retains a system which divides by function the powers of government to enable checks and balances to benefit democratic government. Also, in accordance with the democratic basis of the Constitution, it is the people’s representatives who make the law, who determine the principles and policies. The checks and balances work as between the three branches of government – not elsewhere. Thus Article 15.2 must not be analysed in isolation but as part of the scheme of the separation of powers in the Constitution.
According to the Constitution and the law it is for the Oireachtas to establish the principles and policies of legislation. It may delegate administrative, regulatory and technical matters. The principles and policies test has been part of Irish case law since 1939 – as has been set out earlier in this judgment. It is somewhat similar to the case law requiring standards to be set by the legislature, for delegated legislation, in the United States of America.
The principles and policies test must be applied in accordance with constitutional presumptions as to the interpretation of legislation (favouring that which is constitutional) and presuming actions by ministers and officials will be made in a constitutional fashion. However, none of these presumptions can determine this case. As this is not a Henry VIII clause case I reach no conclusions on that type of delegated legislation. Insofar as Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232, related to a situation where it was purported to amend legislation by regulation, a special issue not relevant here, I find it neither relevant nor helpful.
There has not been extensive analysis of the principles and policies test. Partly this is because of the very nature of the issue. Each case depends on its own facts and requires that the principles and policies of those matters be set out in the legislation.
Counsel for the State, submitted that the policy created by the legislature was that aliens were only allowed in the State and to remain in the State with the consent of the Minister. It is clear that the Oireachtas intended that aliens would be deported if in the opinion of the Minister the common good so required. However, principles and policies such as those discussed in Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381 and McDaid v. Sheehy [1991] 1 I.R. 1, are not present. Standards, goals, factors, and purposes such as those set out in Mistretta v. United States (1989) 488 U.S. 361, are absent.
Counsel referred to factors which he argued were important in relation to this delegated legislation. Thus, the orders to be made by the Minister under s. 5 are subject to the provisions of s. 5(8) which require them to be laid before the Houses of Parliament; the powers of the Minister are subject to the provisions of s. 5(4) and s. 5(5) of the Act as well as other legislative measures such as the free movement provisions of European Union law to which effect is given in the State principally through the European Communities (Aliens) Regulations, 1977; the Minister must act in accordance with constitutional justice and fair procedures; although the deportation power is administrative/executive it is accepted that the Minister is subject to review by the courts in accordance with the principles established in The State (Lynch) v. Cooney [1982] I.R. 337 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; the Minister’s powers are subject to the provisions of the Constitution, (see for example Fajujonu v. The Minister for Justice [1990] 2 I.R. 151 where the family law principles of the Constitution came into play); the rule-making power in this case is the Minister who is politically accountable to the Oireachtas.
However, the two Houses of Parliament are not the Oireachtas; most of the legislative restrictions on the Minister are post-1935 and are not helpful to the interpretation of s. 5(1)(e); even though the Minister must act in accordance with the principles of constitutional justice this does not correct the situation if there has been an unconstitutional delegation of powers. The fact that the Minister is politically accountable to the Oireachtas, although an important factor, would be more relevant if the consideration was as to the exercise of an executive power alone. However, here, because the legislature legislated for the matter it has raised the issue of delegated legislation.
If there had been no legislation the situation would have a parallel to that of the issue of passports. That also is a classic example of an exercise of the executive power of a sovereign nation. There has been no legislation on this matter in Ireland. The scheme is run by a minister of the executive. It must be run in a constitutional and fair manner. However, there is no issue of the constitutional ambit of delegated legislation as the Oireachtas has not sought to give the powers to the Minister.
The inherent authority of the State and the powers of the State incidental to sovereignty are not relevant. The issue in this case is net – the power of the legislature to delegate.
Conclusion
This case turns on Article 15.2 of the Constitution and its interpretation as regards delegated legislation. This raises the principles and policies test. One searches in vain to find principles and policies regarding deportation of aliens in the Act. The legislature grasped the power over aliens from the executive and then delegated inadequately to the Minister. It abdicated its power.
The Act was enacted at a time when the constitutional jurisprudence of the new State was unfolding and authority still being transferred one way or another to the new nation. The Constitution of 1922 was in force. The principles test by Hanna J. was yet to be decided and the formative cases of the United States Supreme Court referred to herein were decided the year the Act was passed. The Act was passed at the inception of modern case law on the issue of delegated legislation and in a State which was assuming its nationhood. However, the Act must now be reviewed under the Constitution of 1937 and the powers of the Oireachtas thereunder, to see if it was carried over by Article 50.
Analysed in accordance with Article 15.2, as must be done, the Act was an abdication of the legislature’s duty to set policies and principles. The power of the legislature must be protected. The power is for that body for the benefit of democratic government and may not be surrendered.
This case did not raise for decision any issue on the sovereign power of the State nor the inherent powers of the State. Thus, neither have been addressed.
For the reasons set out in the judgment, I would dismiss the appeal.
Barrington J.
This appeal raises a net point on the consistency, or otherwise, with the Constitution of s. 5(1)(e) of the Aliens Act, 1935.
The applicant was the subject of an aliens order made by the Minister pursuant to the provisions of art. 13 of the Aliens Order, 1946. This Court has already held that art. 13 of the Aliens Order, 1946, is intra vires the powers of the Minister under s. 5(1) (e) of the Aliens Act, 1935. (See Tang v. Minister for Justice [1996] 2 I.L.R.M. 46). The question for consideration in this case is whether the general power of deportation contained in s. 5(1)(e) of the Aliens Act, 1935, is itself consistent with the Constitution.
Aliens Act, 1935
The Aliens Act, 1935, is described, in its long title, as:-
“An Act to provide for the control of aliens and for other matters relating to aliens.”
An alien is defined as a person who is not a citizen of Saorstat Eireann . The Act entitles aliens to hold property and makes them amenable to, and triable under, the law of Saorstat Eireann to the like extent in all respects as a citizen.
What it does not do is to allow to aliens generally any right to be in Saorstat Eireann .
Section 5 of the Act provides accordingly as follows:-
“(1) The Minister may, if and whenever he thinks proper, do by order (in this Act referred to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say:-
(a) prohibit the aliens to whom the order relates from landing in or entering into Saorstat Eireann ;
(b) impose on such aliens restrictions and conditions in respect of landing in or entering into Saorstat Eireann , including limiting such landing or entering to particular places or prohibiting such landing or entering at particular places;
(c) prohibit such aliens from leaving Saorstat Eireann and for that purpose prohibit such aliens from embarking on ships or aircraft in Saorstat Eireann ;
(d) impose on such aliens restrictions and conditions in respect of leaving Saorstat Eireann including limiting such leaving to particular places or particular means of travelling or prohibiting such leaving from particular places or by particular means of travelling;
(e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstat Eireann and provide for and authorise the making by the Minister of orders for that purpose;
(f) require such aliens to reside or remain in particular districts or places in Saorstat Eireann ;
(g) prohibit such aliens from residing or remaining in particular districts or places in Saorstat Eireann ;
(h) require such aliens to comply, while in Saorstat Eireann , with particular provisions as to registration, change of abode, travelling, employment, occupation, and other like matters.
(2) An aliens order may contain provisions for all or any of the following purposes, that is to say:-
(a) imposing such obligations and restrictions on the masters of ships entering or leaving Saorstat Eireann , the pilots or other persons in charge of aircraft entering or leaving Saorstat Eireann ,railway companies whose railway lines cross the land frontier of Saorstat Eireann , and the drivers or other persons in charge of road vehicles entering or leaving Saorstat Eireann as may, in the opinion of the Minister, be necessary for giving full effect to or securing compliance with such order;
(b) conferring on the Minister and on officers of the Minister, officers of customs and excise and the military and police forces of the State all such powers (including powers of arrest and detention) as are, in the opinion of the Minister, necessary for giving full effect to or enforcing compliance with such order;
(c) determining the nationality to be ascribed to aliens whose nationality is unknown or uncertain;
(d) in the case of an aliens order which provides for the exclusion or the deportation and exclusion of aliens, continuing the operation of such order and every order made thereunder notwithstanding any change in the nationality of the aliens or the alien to which such order or the order made thereunder relates;
(e) requiring hotelkeepers and innkeepers and other persons providing for reward on premises owned or occupied by them lodging or sleeping accommodation to keep registers of persons lodging or sleeping in such hotel, inn, or premises and to permit officers of the Minister and members of the police forces of the State to inspect and take copies of or extracts from such registers.
(3) If in any proceedings, whether civil or criminal, any question arises under or in relation to an aliens order or an order made under an aliens order whether any person is or is not an alien, or is or is not an alien of a particular nationality or otherwise of a particular class, or is or is not a particular alien specified in such order, the onus of proving (as the case may require) that such person is not an alien, or is not an alien of a particular nationality or of particular class, or is not such particular alien, shall lie on such person.
(4) An aliens order shall not apply to any of the following persons, that is to say:-
(a) the head of any diplomatic mission duly accredited to Saorstát Eireann, the members of the household of such head, and every member of the diplomatic staff of such mission whose appointment as such has been officially notified to the Minister for External Affairs or is otherwise entitled to diplomatic immunities and the spouse and child of such member;
(b) the consul-general and any consul or vice-consul in Saorstat Eireann of any other country and the spouse and child of such consul-general, consul or vice-consul;
(c) any persons to whom neither of the proceeding paragraphs of this sub-section applies who is declared by an order made by the Minister for External Affairs to be an official representative in Saorstat Eireann of the Government of another country.
(5) An alien who is ordinarily resident in Saorstát Eireann and has been so resident for a period (whether partly before and partly after the passing of this Act or wholly after such passing) of not less than five years and is for the time being employed in Saorstát Eireann or engaged in business or the practice of a profession in Saorstat Eireann shall not be deported from Saorstat Eireann under an aliens order or an order made under an aliens order unless-
(a) such alien has served or is serving a term of penal servitude or of imprisonment inflicted on him by a Court in Saorstat Eireann , or
(b) the deportation of such alien has been recommended by a Court in Saorstat Eireann before which such alien was indicted for or charged with any crime or offence, or
(c) three months’ notice in writing of such deportation has been given by the Minister to such alien.
(6) Every order made under the Aliens Restriction Acts, 1914 and 1919, and in force at the date of the passing of this Act may be amended or revoked by an aliens order, and until so revoked, and subject to any such amendment, shall continue in force and be deemed to have been made under this Act, and shall be an aliens order within the meaning of this Act.
(7) The Minister may, at any time, by order revoke or amend an aliens order previously made.
(8) Every aliens order and every order revoking or amending an aliens order shall be laid before each House of the Oireachtas as soon as may be after it is made, and, if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such order is laid before it annulling such order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.
(9) Whenever an order made under an aliens order is made in respect of aliens of a particular class, such order shall be published in the Irish Oifigiúil as soon as may be after it is made.”
Section 10 of the Act reads as follows:-
“(1) The Executive Council may by order exempt from the application of any provision or provisions of this Act, or of any aliens order, the citizens, subjects or nationals of any country in respect of which the Executive Council are satisfied that, having regard to all the circumstances and in particular the laws of such country in relation to immigrants, it is proper that the exemption mentioned in such order should be granted.
(2) Every order made by the Executive Council under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and, if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after the order is laid before it annulling such order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.
(3) The Executive Council may, at any time, by order, revoke any order previously made by them under this section.”
Finally, s. 11 is in the following form:-
“(1) The Minister may by order make regulations in relation to any matter or thing referred to in this Act as prescribed or to be prescribed, but no such regulation shall be made in relation to the amount of a fee without the consent of the Minister for Finance.
(2) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such regulation is passed by either such House within the next subsequent twenty-one days on which such House has sat after such regulation is so laid before it, such regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”
The power given by s. 10 was used to allow free movement between Ireland and the United Kingdom. Also, our accession to the European Economic Community led to the making of the European Communities (Aliens) Regulations, 1977, which granted certain rights to aliens who are nationals of a member state of the community.
Section 11 provides the machinery whereby orders contemplated by s. 5(1)(e) can be made. But, as previously indicated the real issue in this case is whether it is competent for the Oireachtas to grant discretions such as that contained in the s. 5(1)(e) of the Aliens Act, 1935.
Presumption of constitutionality
The Aliens Act, 1935, being a pre-constitutional statute, there can be no formal presumption that it does not violate the present Constitution. Nevertheless the onus still rests on the applicant to show that it is inconsistent with the present Constitution and not therefore carried forward by Article 50. Indeed, in the peculiar circumstances of the present case, where the attack on the statute is based on Article 15.2 of the present Constitution one could point out that the Constitution of 1922 contained an almost identical provision.
Article 15.2 of the present Constitution appears in a portion of the Constitution headed “The National Parliament – Constitution and Powers” and reads as follows:-
“1 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.
2 Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.”
Article 12 of the Constitution of the Irish Free State provided,inter alia, as follows:-
“The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstat Eireann ) is vested in the Oireachtas.”
For the purposes of this case I would be of the view that the difference of wording between the relevant provisions of Article 15 of the present Constitution and of article 12 of the Constitution of the Irish Free State are so slight that if the Aliens Act, 1935, could be presumed to be not in conflict with the relevant provisions of the Constitution of the Irish Free State it could also be presumed to be not in conflict with the relevant provisions of the present Constitution.
For many years it was assumed that, because the Constitution of the Irish Free State could be amended during all of its life by”ordinary legislation” that any piece of legislation which, incidentally, conflicted with the Constitution amended it pro tanto even though it was not expressed to be an Act to amend the Constitution. This doctrine is derived from a passage in the judgment of O’Connor M.R. in R. (Cooney) v. Clinton (delivered in 1924) [1935] I.R. 245, at p. 247. The passage in question reads as follows:-
“It was urged that any Act of Parliament purporting to amend the Constitution should declare that it was so intended, but I cannot accede to that argument in view of the express provision that any amendment made within the period may be made by ordinary legislation.”
But if one looks at Article 50 of the Constitution of the Irish Free State it seems quite clear that the Article uses the term”ordinary legislation” to distinguish amendments which may, for a limited period, be made by the Oireachtas itself from amendments which must be submitted to the people by way of referendum.
To derive from this distinction a doctrine that the Constitution could be amended by ordinary legislation which need not even be expressed to be a constitutional amendment showed scant respect to the Constitution. It also assumed that the Oireachtas had so little respect for the Constitution that they would amend it without thinking of what they were doing. It also had the practical disadvantage that one could not find out what the Constitution of the Irish Free State provided without reading the whole body of statute law passed since 1922.
In any event this doctrine was abandoned by the modern Supreme Court in Conroy v. Attorney General [1965] I.R. 411, when it summarily rejected a submission that the Constitution of the Irish Free State must be taken to have been automatically amended by any provision of the Road Traffic Act, 1933, which was in conflict with it (see p. 443).
For these reasons, therefore, I would approach this case on the basis that the onus of proving that s. 5(1)(e) of the Aliens Act, 1935, is inconsistent with the Constitution rests on the applicant.
The special position of aliens
Article 15.2 of the Constitution vests in the Oireachtas”the sole and exclusive” power of making laws for the State. It is an assertion of the power of the Oireachtas. That is why, for instance, s. 6 of the Offences Against the State Act, 1939, makes it a criminal offence punishable with up to ten years penal servitude for any person to take part in any way in any body of persons purporting to be a legislature not authorised under the Constitution. Certainly one could not deduce from the words of Article 15 alone that the Oireachtas had not power, within the Constitution, to pass laws of any particular kind.
One must bear this in mind when considering the case of Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381. In that case the attack on the constitutionality of the Industrial Training Act, 1967, was rejected by the High Court and, on appeal, by the Supreme Court, so that the remarks about the limitations on the Oireachtas’s capacity to delegate its powers areobiter. More important, in that case counsel were agreed on the principles to be applied and the dispute related merely as to how these principles were to be applied. As McMahon J. put the matter at p. 389 :-
“It was agreed by the parties that under the Constitution (in particular Article 6, s. 2, and Article 15, s. 2, sub-s. 1) there is a limit upon the extent to which legislative power may be delegated to subordinate agencies by the Oireachtas, and that it is not competent for the Oireachtas by such delegation to abdicate its legislative function. Counsel were not able to find any authority of our Courts upon the question but the Court was referred to a number of decisions of the Supreme Court and of State Courts of the United States of America; the parties agreed that the general principles which were expounded in such authorities are applicable to the constitutional position in our law.”
The reference to Article 6 is important. Article 6 provides that all powers of Government “legislative, executive and judicial”,derive, under God, from the people and goes on to provide that these powers of government are excercisable “only by or on the authority” of the organs of State established by the Constitution.
Counsel maintained that common approach to the case in the Supreme Court and it is clear from their submissions that both sides relied on the theory of separation of powers, and that the problem was how that theory was to be applied to the particular circumstances of that case. Both sides appear to have been agreed that one way of reconciling the powers of legislature with those of the executive was if the legislature formulated policy and the executive implemented it.
The Court accepted these principles, used them to test the statute, and found that the statute survived the test.
But the purpose of the theory of separation of powers is to protect the rights of the citizen. Absolute power may not be delegated to any executive agency because to do so would be inconsistent with the rights of the citizen. On the theory of the separation of powers, the rights of the citizen will be secure only if the legislature makes the laws, the executive implements them and the judiciary interprets them.
One of the tasks of legislation is to strike a balance between the rights of individual citizens and the exigencies of the common good. If the legislature can strike a definitive balance in its legislation so much the better. But the problem which confronted the Court in Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, is that the facts of modern society are often so complex that the legislature cannot always give a definitive answer to all problems in its legislation. In such a situation the legislature may have to leave complex problems to be worked out on a case by case basis by the executive. But even in such a situation the legislature should not abdicate its position by simply handing over an absolute discretion to the executive. It should set out standards or guidelines to control the executive discretion and should leave to the executive only a residual discretion to deal with matters which the legislature cannot foresee.
This, as I understand it, was the reasoning of the learned High Court Judge in the present case and the reasoning appears to me to be perfectly sound. Where I, respectfully, disagree with the learned High Court Judge is in his application of this reasoning to the facts of the present case. The reasoning was developed in an effort to strike a balance between the rights of the individual citizen and the exigencies of the common good. But there is no such balance to be struck in the present case for the simple reason that, under our law, an alien has, generally speaking, no right to reside in Ireland. That is the principle on which the Act of 1935 rests. It is important to remember that we are here dealing, not with the rule, but with the exception.
That is why the Act of 1935 is entitled an Act – “for the control of aliens”. The Act accepts that a number of aliens may in fact be in Ireland and provides that they are to be subject to the normal civil and criminal law as these affect citizens. The Act protects diplomatic and consular officials and authorises the Minister to make special provisions concerning the masters of ships, the pilots of aircraft, railway companies whose railway lines cross the land frontier and the drivers of road vehicles entering or leaving the State. But the draconian nature of the Act is well illustrated by s. 5(5) which provides, in effect, that an innocent alien who has been ordinarily resident in the State for upwards of five years may not be deported unless he has received three months advance notice of such deportation in writing.
If one is to glean the policy of the Act from its terms it would appear to be that generally speaking aliens have no right to be in Ireland and may be excluded or deported at any time unless the Minister sees some reason for allowing them to remain.
Rule of law
Counsel on behalf of the applicant submits and, counsel for the respondent, in large measure, concedes that there are certain limits placed on the powers of the Oireachtas and of the powers of the Minister which derive from the fact that Ireland is a country governed by law. Thus the Oireachtas would not be competent to delegate to the Minister power to amend the Aliens Act, 1935, itself. Likewise if the Oireachtas were to delegate to the Minister a discretion which on its face appeared absolute the Minister could not use this discretion to amend the Act of 1935. So also if an alien were to get involved in civil or criminal litigation he would, generally speaking, have the same rights as any other litigant. Moreover the State will not be permitted to give inconsistent reasons for deporting an alien. It cannot refuse him a work permit and then say that the reason for deporting him is that he cannot support himself. All of these matters are important but must not be allowed to obscure the central issue in this case which is that an alien has no right to be in Ireland save only with the consent of the Minister for Justice.
Previous challenges to Act
The Aliens Act, 1935, has survived many previous constitutional challenges. In Pok Sun Shum v. Ireland [1986] I.L.R.M. 593, the plaintiff who was an alien married to an Irish citizen, and who had been served with a deportation order, sought to challenge the order and the Act on the basis that they violated the family provisions of the Constitution.
Costello, J. rejected the challenge stating at pp. 596 and 597:-
“Mr. Gaffney S.C. submitted on behalf of the plaintiffs that because of the very entrenched provisions of the family rights in the Constitution, these could not be trenched upon, in any way, by the State and, in particular, by the Aliens Order. He went so far as to answer a question I put, to say that if an alien landed in the State on one day and married the next day to an Irish citizen in the State, the State was required, by the Constitution, to safeguard the rights which were given to the family, and these could not be taken away by the Aliens Act 1935. In other words, the order made under the Aliens Act 1935 was unconstitutional. I cannot accept that view. I do not think that the rights given to the ‘family’ are absolute, in the sense that they are not subject to some restrictions by the State and, as Mrs. Robinson SC has pointed out, restrictions are, in fact, permitted by law, when husbands are imprisoned and parents of families are imprisoned and, undoubtedly, whilst protected under the Constitution, these are restrictions permitted for the common good on the exercise of its rights. It seems to me that the Minister’s decisions and the Act, and orders made under it are permissible restrictions and I cannot hold that they are unconstitutional.”
Later in the same year Gannon J. in Osheku v. Ireland [1986] I.R. 733, rejected a similar challenge stating at p. 746:-
“The control of aliens which is the purpose of the Aliens Act, 1935, is an aspect of the common good related to the definition, recognition, and the protection of the boundaries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.”
In the same case Gannon, J. made the following significant findings at p. 749:-
“(1) The Aliens Act, 1935, and the statutory Orders of 1946 and of 1975 are not inconsistent with the Constitution.
(2) The said statutory Orders of 1946 and 1975 and any implementation thereof by the Minister for Justice are not ultra vires the authority conferred by the Aliens Act, 1935, nor inconsistent with the Constitution.
(3) Mr. Osheku the first plaintiff is not entitled to remain nor reside in nor leave nor re-enter the State otherwise than in conformity with the Aliens Act, 1935, and the orders thereunder.
(4) Mr. Osheku is not entitled to remain in nor reside in nor leave nor re-enter the State save in compliance with the restrictions or requirements of the Minister for Justice in pursuance of the Aliens Act and orders.
(5) An order by the Minister for Justice deporting Mr. Osheku the first plaintiff, if made in the due exercise of the discretion vested in him by the Aliens Act, 1935, and the statutory Orders thereunder, would not infringe the constitutional rights of any of the plaintiffs.”
In the following year, 1987, the issue of the constitutionality of the Aliens Act, 1935, came before me in Fajujonu v. The Minister for Justice [1990] 2 I.R. 151.
The first and second plaintiffs in that case were a Nigerian and a Moroccan citizen respectively, who had been married in London in 1981, and who, shortly thereafter had come to live in Ireland and had remained in Ireland without notifying the Minister for Justice of their presence. Shortly before the institution of proceedings the first plaintiff had been asked by the Minister for Justice to make arrangements to leave the State and it was this request, coupled with the fear that a deportation order would follow, which gave rise to the proceedings.
The case was one of considerable hardship. At the date of the hearing before me, the plaintiffs had been resident in the State for upwards of six years. They had three young children all of whom had been born in Ireland. In 1983, they had been given a house by Dublin Corporation in Ballyfermot. They were apparently popular with the local community. The secretary of the local Tenants’ Association, Mr. Larkin gave evidence on their behalf at the hearing before me. Indeed it would appear that it was a request by the committee of the Ballyfermot Sports and Leisure Complex to employ the first plaintiff which brought his presence in the country formally to the attention of the Department of Justice.
However, as I stated at p. 153 of my judgment:-
“¦ the issue of principle which the plaintiffs seek to raise in this case arises not from any of these matters but from the fact that the third plaintiff, Miriam Fajujonu, is a citizen of Ireland having been born here on the 24th September, 1983. Since then Mr. and Mrs. Fajujonu have had two further children. These also are Irish citizens and, though they have not joined as parties to these proceedings, the same issues arise in relation to them as arise in Miriam’s case.”
However I felt obliged to follow the decisions in Osheku v. Ireland [1986] I.R. 733 and Pok Sun Shun v. Ireland [1986] I.L.R.M. 593, with which I expressed myself to be in agreement.
When the matter came on appeal before the Supreme Court the plaintiffs had been resident in the State for upwards of eight years. In the Supreme Court the plaintiffs formally abandoned their attack on the constitutionality of s. 5 of the Aliens Act, 1935, and sought instead guidance as to the way the Minister should exercise his discretion under the section having regard to the period of time during which the parents had been resident within the State and having regard to the fact that the children were Irish citizens. The Court accordingly, dismissed their appeal on the constitutionality of the Act but, in the peculiar circumstances of the case, allowed them to make the alternative case concerning the exercise of ministerial discretion. As Finlay C.J. (with whom Griffin, Hederman and McCarthy JJ. agreed) put the matter at [1990] 2 I.R. 160 at p. 162:-
“When the matter came before this Court on appeal the case really made on behalf of the plaintiff by Mr. McDowell was not an assertion of the absolute right incapable of being affected by the provisions of the Act of 1935, but rather the assertion of a constitutional right of great importance which could only be restricted or infringed for very compelling reasons. Notwithstanding the fact that this was not the case which had been made in the court below, and notwithstanding the fact that it is difficult to fit it comfortably within any of the grounds of appeal which were contained in the notice of appeal, in the interests of justice this Court considered this submission and argument and the reply of the respondents to it.
I have come to the conclusion that where, as occurs in this case, an alien has in fact resided for an appreciable time in the State and has become a member of a family unit within the State containing children who are citizens, that there can be no question but that those children, as citizens, have got a constitutional right to the company, care and parentage of their parents within a family unit. I am also satisfied that prima facie and subject to the exigencies of the common good that that is a right which these citizens would be entitled to exercise within the State.
I am also satisfied that whereas the parents who are not citizens and who are aliens cannot, by reason of their having as members of their family children born in Ireland who are citizens, claim any constitutional right of a particular kind to remain in Ireland, they are entitled to assert a choice of residence on behalf of their infant children, in the interests of those infant children.
Having reached these conclusions, the question then must arise as to whether the State, acting through the Minister for Justice pursuant to the powers contained in the Aliens Act, 1935, can under any circumstances force the family so constituted as I have described, that is the family concerned in this case, to leave the State. I am satisfied that he can, but only if, after due and proper consideration, he is satisfied that the interests of the common good and the protection of the State and its society justifies an interference with what is clearly a constitutional right.”
It is quite clear from the passage quoted (and in particular from the last paragraph) that Finlay C.J. was satisfied that the Act was not inconsistent with the Constitution but that the Minister, in exercising his discretion, would have to give due and proper consideration to all the circumstances of this case.
The emphasis in the judgment of Walsh J. (with which Griffin, Hederman and McCarthy JJ. also agreed) is slightly different. He warned, for instance that the Minister could not give inconsistent reasons for a deportation order. The State could not, while denying the first plaintiff a work permit, deport him because of his poverty.
Walsh J. however was also of the opinion that the Aliens Act was not inconsistent with the Constitution. At p. 166 he says:-
“In view of the fact that these are children of tender age, who require the society of their parents and when the parents have not been shown to have been in anyway unfit or guilty of any matter which make them unsuitable custodians to their children, to move to expel the parents in the particular circumstances of this case would, in my view, be inconsistent with the provisions of Article 41 of the Constitution guaranteeing the integrity of the family.
The Act of 1935 did not in any way contemplate a situation in which infant citizens of this State could in effect be deprived of the benefit and protection of the laws and constitution of this State. In my view, therefore, the Act is not inconsistent with the Constitution. But it would be ultra vires the Act to exercise the powers which had been sought to be exercised by the Minister to disrupt this family for no reason other than poverty, particularly when that poverty has been effectively induced by the State itself.”
The case of Tang v. The Minister for Justice [1996] 2 I.L.R.M. 46, was concerned with the validity of a departmental decision refusing the plaintiffs’ permission to remain in the state. However Hamilton C.J. in the course of his judgment had the following remarks to make concerning the position of aliens in Irish law at p. 59:-
“There is no provision of Irish law entitling the applicants without the consent of the minister to reside in the State for more than one month and without the consent of the minister the applicants are not entitled to remain in the State.
The applicants have no right, legal or otherwise, to remain or reside in this State and had no permission so to remain or so reside; the letters dated 12 October 1993 did not purport to remove the applicants’ permission to remain in the State; they had no such permission and the letters referred to constituted a refusal to grant such permission. The applicants had sought and obtained from the learned trial judge an order of certiorari quashing the decision of the minister contained and communicated by the aforesaid letters.
The quashing of the decision to refuse them permission to remain in the State does not in any way affect their status as aliens. In the absence of the consent of the minister, they have no right to remain in the State.”
Discrimination
The control of aliens, though vested principally in the Minister for Justice, relates also to the foreign policy of the State and, in earlier times, was one of the prerogative powers of the Crown. In earlier times prerogative powers were used to authorise the settling in Ireland of Huguenot refugees from France and Protestant refugees from the Palatinate. Many of the sovereign States of Europe used such powers to entice to their countries workers with particular skills such as workers skilled in making silk or glass. At the present time the Government is considering the admission of refugees from Kosovo but the fact that some aliens are admitted does not mean that those not admitted are entitled to complain of discrimination. The reason is simple. They have no right to be in Ireland and the mere fact of their exclusion does not therefore constitute unlawful discrimination against them. The Minister may decide, in the interest of the common good, to admit a particular alien or aliens with particular qualifications such as doctors or computer experts. The Government has, under s. 10 of the Act, given rights, on a reciprocal basis, to British subjects and, at a later stage, to citizens of the member states of the European Union. But the general power to exclude aliens still remains. This is legislation of a unique kind where the people who are the subject matter of the legislation are not recognised as having any right to be in Ireland. It is unsafe therefore to test this legislation by reference to cases dealing with legislation designed to regulate the rights of citizens.
Conclusion
The Aliens Act reflects the philosophy of the nation state. Its unspoken major premise is that aliens have, in general, no right to be on the national territory. It cannot therefore be compared with normal legislation designed to reconcile the rights of the citizen with those of the State in the interests of the common good. On the central issue the Act does not regard the aliens as having any right to be in Ireland though it allows to the Minister a discretion to make exceptions in certain cases. I don’t think it matters whether the discretion of the Minister derives historically from the prerogative powers of the Crown or from some other source. The important point is that the Oireachtas has seen fit to regulate this sphere of life and to do so on the basis of maintaining the distinction between citizens who have a right to reside in the State and aliens who have not. But, as Fajujonu v. The Minister for Justice [1990] 2 I.R. 151, illustrates, the Minister, having fairly considered all the matters involved in the case can still deport an alien even though his decision may incidentally cause hardship to the alien’s children who may be citizens of Ireland.
Whether this system suits the needs of the modern world is another question. Already the State has had to make an exception to it to maintain the common market in labour between this State and the neighbouring island. Another major exception was required on our entry to the European Economic Community. It may be that the increased movement of people in the modern world demands a different system. But this is a matter for the Oireachtas not for this Court.
I would reverse the order of the learned trial judge.
Keane J.
Introduction
The applicant in this case is a Romanian national who, before he left his native country in 1994, was a professional footballer. Three days after his arrival in the United Kingdom from Romania he travelled to Ireland where he has since remained.
Immediately following his arrival in Ireland, he applied for asylum in the State under the provisions of the Geneva Convention relating to the Status of Refugees. Under those provisions, this State would be obliged to grant the applicant asylum if he were a refugee within the meaning of the Convention,i.e. a person who has left his native country because of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. That application was made to the first respondent, as was an application to remain in the State based on humanitarian considerations. The office of the United Nations High Commissioner for Refugees have set out certain principles and procedures to be applied by the contracting states in dealing with applications under the Convention in a document known as “the Von Arnim letter” which was in due course superseded by the “Hope Hanlan letter”. It was not in dispute in this case that the first respondent, in accordance with normal procedures, consulted with United Nations High Commissioner for Refugees before arriving at his decision.
That decision was to refuse the applicant’s claim to be treated as a refugee under the Convention. An appeal was brought from it in accordance with the relevant procedure to the Interim Refuge Appeal Authority (the retired President of the Circuit Court, O’Malley J.): he recommended that the first respondent’s decision be affirmed and, accordingly, the first respondent refused to alter his original decision. On the 12th March, 1998, the first respondent also refused the application for leave to remain on humanitarian grounds and the applicant’s solicitor was informed that a deportation order had been made pursuant to the Aliens Order, 1946. On the 16th March, 1998, the High Court gave leave to the applicant to apply for judicial review in respect of these decisions and interim relief restraining the deportation was also granted pending the outcome of the proceedings.
In the proceedings, the applicant claims a range of reliefs, including orders of certiorari quashing the various decisions to which I have referred on the grounds that the procedures to which I have referred had not been followed, that, in particular, the Von Arnim and Hope Hanlan principles had not been applied and that, in any event, art. 13(1) of the Order of 1946, under which the applicant was purportedly being deported, was ultra vires the Aliens Act, 1935, (hereinafter “the Act of 1935”) under which it was purportedly made. In addition, the applicant claimed a declaration that the relevant provisions of the Act of 1935 were inconsistent with the provisions of the Constitution and, hence, had not survived the enactment of the Constitution.
A statement of opposition having been filed on behalf of the respondents, the substantive case came on for hearing in the High Court before Geoghegan J. In a reserved judgment, he dealt first with the grounds other than those relating to the constitutionality of the Act of 1935. Having come to the conclusion that the applicant had not established his claim to be entitled to those reliefs, he went on to consider the constitutionality of the Act of 1935 and concluded that s. 5(1)(e) of the Act of 1935, which empowered the first respondent to make orders in respect of the deportation of aliens, was inconsistent with Article 15.1 of the Constitution which vests the law making power for the State exclusively in the Oireachtas.
An appeal has now been taken to this Court from that finding and the applicant, for his part, has cross-appealed against the dismissal by the learned High Court Judge of his claim for other relief by way of judicial review in respect of the decisions and order of the first respondent.
The Act of 1935 and its interpretation
The Act of 1935 is described in the long title as:-
“An Act to provide for the control of aliens and for other matters relating to aliens.”
Although one paragraph only of s. 5(1) is challenged in these proceedings, the entire subsection must be set out. It provides that:-
“The Minister may, if and whenever he thinks proper, do by order (in this Act referred to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say:-
(a) prohibit the aliens to whom the order relates from landing in or entering into Saorstat Eireann ;
(b) impose on such aliens restrictions and conditions in respect of landing in or entering into Saorstat Eireann , including limiting such landing or entering to particular places or prohibiting such landing or entering at particular places;
(c) prohibit such aliens from leaving Saorstat Eireann and for that purpose prohibit such aliens from embarking on ships or aircraft in Saorstat Eireann ;
(d) impose on such aliens restrictions and conditions in respect of leaving Saorstat Eireann including limiting such leaving to particular places or particular means of travelling or prohibiting such leaving from particular places or by particular means of travelling;
(e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstat Eireann and provide for and authorise the making by the Minister of orders for that purpose;
(f) require such aliens to reside or remain in particular districts or places in Saorstat Eireann ;
(g) prohibit such aliens from residing or remaining in particular districts or places in Saorstat Eireann ;
(h) require such aliens to comply, while in Saorstat Eireann , with particular provisions as to registration, change of abode, travelling, employment, occupation and other like matters.”
Subsection (2) empowers the first respondent to include in an aliens order provisions for a number of purposes which, in his opinion, may be necessary for giving full effect to or securing compliance with the order. These extend to imposing specific obligations and restrictions on masters of ships, pilots, drivers etc. when leaving or entering the State and giving powers of arrest and detention to the first respondent’s officers, customs and excise officers and, the defence forces and the gardaÃ.
Subsection (4) provides that an aliens order is not to apply, in general, to members of diplomatic or consular missions. Subsection (5) provides that, subject to certain qualifications, an alien who has been ordinarily resident in the State for not less than five years and is either employed or engaged in a business or profession is not to be deported under an aliens order.
Subsection (8) provides that:-
“Every aliens order and every order revoking or amending an aliens order shall be laid before each House of the Oireachtas as soon as may be after it is made, and, if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such order is laid before it annulling such order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.”
Section 10 of the Act should also be noted. It empowers the executive council (now the Government) to exempt by order nationals of any specified country from the provisions of the Act. It appears that the power has been exercised in respect of one country only, the United Kingdom. Our accession to the European Economic Community, as it then was, in 1972 also led to the making of the European Communities (Aliens) Regulations, 1977, (S.I. No. 393 of 1977) which established a different regime for aliens who were nationals of a member state.
In purported exercise of the power conferred by the Act of 1935, the first respondent made the Aliens Order, 1946, (S.R. & O. 395) (hereafter “the Order of 1946”). Article 13 providesinter alia as follows:-
“(1) Subject to the restrictions imposed by the Aliens Act, 1935 (No. 14 of 1935), the Minister may, if he deems it to be conducive to the public good so to do make an order (in this Order referred to as a deportation order) requiring an alien to leave and to remain thereafter out of the State.
(2) An order made under this Article may be made subject to any conditions which the Minister may think proper.
(3) An alien with respect to whom a deportation order is made shall leave the State in accordance with the order, and shall thereafter so long as the Order is in force remain out of the State.”
The provisions of the Act of 1935 and the Order of 1946 have been considered in a number of cases in the context of the Constitution. In Tang v. Minister for Justice (Unreported, High Court,, Flood J, the 11th October, 1994) the High Court declared art. 13(1) of the Aliens Order, 1946, to be ultra vires the powers conferred on the Minister by the Act of 1935 because the parent Act did not expressly authorise the first respondent to make a deportation order where he deemed it “conducive to the public good”. That decision was reversed by this Court, which found the Order of 1946 to be intra vires the powers conferred on the Minister by s. 11 of the Act of 1935 ( Tang v. Minister for Justice [1996] 2 I.L.R.M. 46.) In the course of his judgment in that case, Hamilton C.J. cited with approval the following passage from the judgment of Gannon J. in Osheku v. Ireland [1986] I.R. 733 at p. 746:-
“The control of aliens which is the purpose of the Aliens Act, 1935, is an aspect of the common good related to the definition, recognition, and the protection of the boundaries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizens, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is of the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concorde maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.”
In Osheku v. Ireland [1986] I.R. 733, the constitutionality of the Act of 1935 was upheld, but it had not been challenged on the ground advanced in this case. That decision was followed by Barrington J. as a High Court Judge in Fajujonu v. Minister for Justice [1990] 2 I.R. 151, but again the ground relied on by the plaintiff was not the same as that advanced in the present case. The claim that the Act was unconstitutional was abandoned in the Supreme Court.
A similar view to that expressed by Gannon J. as to the inherent power of sovereign states to exclude and deport aliens has been taken in at least two other common law jurisdictions, the United Kingdom and the United States. In R. v. Brixton Prison (Governor) Ex Parte Soblen [1963] 2 Q.B. 243 Lord Denning M.R. said at p. 300:-
“Although every alien, as soon as he lawfully sets foot in this country, is free, nevertheless the Crown is entitled at any time to send him home to his own country if, in its opinion his presence here is not conducive to the public good; and it may for this purpose arrest him and put him on board a ship or aircraft bound for his home country. That was clearly the law under the Aliens Order, 1916 ¦ It is unnecessary to go into the state of the law before the Aliens Orders. I always understood that the Crown had a Royal Prerogative to expel an alien and send him home whenever it considered that his presence here was not conducive to the public good.”
It should also be noted that, although it was made clear in Osheku v. Ireland [1986] I.R. 733, that the vindication of the rights of the State itself could have as its consequence the restriction of the exercise of personal rights, circumstances may also arise in which the exercise by the Minister of his powers, or at least the manner in which they are exercised by him, must yield to the necessity to protect such personal rights guaranteed by the Constitution. Thus in Fajujonu v. Minister for Justice [1990] 2 I.R. 151, it was held that, while the parents who were the subject of the deportation order at issue in the case had no particular constitutional right to remain in Ireland, they were entitled to assert a choice of residence on behalf of their infant children, who were Irish citizens, in the interests of the children. It followed, accordingly, that the Minister could not make a deportation order in respect of the parents, unless he was satisfied, after due and proper consideration, that the interests of the common good and the protection of the State and its society justified an interference with the constitutional right of the children to remain within the family unit (see in particular the observations of Finlay C.J., at p.162.) In that case, Walsh J. at p. 166 said:-
“The Act of 1935 did not in any way contemplate a situation in which infant citizens of this State could in effect be deprived of the benefit and protection of the laws and Constitution of this State. In my view, therefore, the Act is not inconsistent with the Constitution ¦”
Since the challenge to the constitutionality of the Act of 1935 was not pursued in this Court, that observation was clearlyobiter but, in any event, I do not think that the learned judge was saying anything more than that the Act was not inconsistent with the Constitution by reason of any conflict with Article 41, guaranteeing the integrity of the family. It follows that the issue raised in this case as to whether the Act is inconsistent with the Constitution in trespassing on the exclusive law making role of the Oireachtas is res integra.
Delegated legislation
The increasing recourse to delegated legislation throughout this century in this and the neighbouring jurisdictions has given rise to an understandable concern that parliamentary democracy is being stealthily subverted and crucial decision making powers vested in unelected officials.
The exclusive law-making role of the national parliament under the Constitution is set out in emphatic language in Article 15.2.1:-
“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.”
Historically, this Article can be seen as an uncompromising reassertion of the freedom from legislative control by the Imperial Parliament at Westminster of the new State. But it is also an essential component in the tripartite separation of powers which is the most important feature of our constitutional architecture and which is enshrined in general terms in Article 6. At an early stage in the history of the Constitution, however, it was recognised that the practice of delegated legislation then well established had not been outlawed by this Article, provided it was exercised within certain defined limits. As Hanna J. put it, in one of the earliest decisions on the Constitution, Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413 at p. 421:-
“¦ the Legislature may, it has always been conceded, delegate to subordinate bodies or departments not only the making of administrative rules and regulations, but the power to exercise, within the principles laid down by the Legislature, the power so delegated and the manner in which the statutory provisions shall be carried out. The functions of every Government are now so numerous and complex that of necessity a wider sphere has been recognised for subordinate agencies, such as boards and commissions. This has been specially so in this State in matters of industry and commerce. Such bodies are not law makers; they put into execution the law as made by the governing authority and strictly in pursuance therewith, so as to bring about, not their own views, but the result directed by the Government.”
The reference to “the Government” in the last sentence might, I think, more appropriately have been to “the Oireachtas”. Subject to that qualification, that passage still clearly represents the law and has been endorsed on more than one occasion by this Court. In one such decision, Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, O’Higgins C.J., speaking for the Court, explained the criteria for determining whether the delegation of powers is permissible in somewhat more detail at p. 399:-
“In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised: for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details are only filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
The learned Chief Justice pointed out that the statute being considered in that case contained a provision for the annulment of the regulations or orders by either House, as does the Act of 1935. While recognising that this was a safeguard, he added:-
“Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution.”
A subsequent decision of this Court, Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232, was strongly relied on by counsel on behalf of the respondents in support of his general submission that s. 5(1)(e) of the Act of 1935 was consistent with Article 15.2 of the Constitution. While he did not go so far as to say that it overruled Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413 and Cityview Press Limited v. An Chomairle Oiliúna [1980] I.R. 381, either expressly or by implication, he urged that it required the courts to adopt what he called a new”methodology” in assessing constitutional challenges grounded on Article 15.2. The first task of the Court, he said, was to determine whether the making of ministerial regulations apparently authorised by the impugned legislation necessarily invaded the exclusive legislative function of the Oireachtas. In determining whether they did, the Court was obliged to assume that the Minister would exercise his powers only in accordance with the Constitution. Hence, if they were capable of being exercised in a manner which did not invade the domain of the Oireachtas, they must survive the challenge to their constitutionality. Thus, in the present case, the impugned section empowers the Minister, not merely to prohibit the entry into Ireland of particular aliens or to order their deportation, but also, for example, to prohibit the arrival of all Romanian nationals or the deportation of any Romanian nationals already here. Such a determination might seem, at first sight, to go far beyond an administrative or regulatory measure and to constitute, not merely a policy decision, but one of a particularly unusual and startling nature. Counsel’s submission, however, as I understood it, was that, if that was to be regarded as a policy decision it would be beyond the Minister’s power in the light of Article 15.2, to make a regulation in that form and that, so construed, s. 5(1)(e) was consistent with the Constitution.
The circumstances under consideration by this Court in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232, are particularly relevant in coming to a conclusion as to whether that submission is well founded. The plaintiff had been awarded a widow’s non-contributory pension on the death of her husband and was subsequently awarded a blind pension. The blind pension was withdrawn from her when she arrived at the age of 66 on the ground that the blind pension was a form of old age pension paid in advance of a person reaching a pensionable age and, accordingly, did not continue after she had reached the pensionable age. In the High Court, the plaintiff’s claim was dismissed on the ground that the Minister for Social Welfare had correctly construed the regulations in arriving at what was accepted to be a harsh result. However, in this Court, for the first time, the constitutionality of s. 75 of the Social Welfare Act, 1952, under which the relevant regulation was purportedly made, was challenged on the ground that it permitted the Minister to legislate, contrary to Article 15.2. An alternative submission was advanced that the regulation under which the blind pension had been withdrawn wasultra vires s. 75 of the Act of 1952.
This latter argument succeeded, because the effect of the regulation was to deprive the plaintiff of her entitlement to two pensions, although the social welfare code in general, and s. 7 of the Social Welfare Act, 1979, in particular, expressly envisaged that persons could be entitled to two pensions at the one time. The effect of the impugned regulation was, accordingly, to amend, at least by implication, specific provisions contained in the parent legislation.
In considering the challenge to the constitutionality of the parent legislation – which was dealt with first – Finlay C.J., delivering the judgment of the Court, said at p. 240:-
“The impugned section having been enacted in 1952 is entitled to the presumption with regard to constitutional validity which has been laid down by this Court, and in particular falls to be construed in accordance with the principles laid down in the decision of this Court pronounced in East Donegal Co-operative v. Attorney General [1970] I.R. 317. This means that it must be construed so that as between two or more reasonable constructions of its terms that which is in accordance with the provisions of the Constitution will prevail over any construction not in accordance with such provisions. Secondly, it must be implied that the making of regulations by the Minister as is permitted or prescribed by s. 75 of the Act of 1952 is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice and, therefore, that it is to be implied that the Minister shall not in exercising the power of making regulations pursuant to that section contravene the provisions of Article 15, s. 2 of the Constitution. The Court is satisfied that the terms of s. 75 of the Act of 1952 do not make it necessary or inevitable that a Minister for Social Welfare making regulations pursuant to the power therein created must invade the function of the Oireachtas in a manner which would constitute a breach of the provisions of Article 15, s. 2 of the Constitution. The wide scope and unfettered discretion contained in the section can clearly be exercised by a Minister making regulations so as to ensure that what is done is truly regulatory or administrative only and does not constitute the making, repealing or amending of law in a manner which would be invalid having regard to the provisions of the Constitution.”
The Court in that case was, accordingly, not concerned with the judicial construction of Article 15.2 adopted in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413 or Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381. It was dealing with an entirely distinct issue, although one which obviously arose in the context of Article 15.2,i.e. as to whether, in the light of the presumption of constitutionality, it can be assumed that a minister will not exercise a power of delegated legislation so as to repeal or amend existing law. Notwithstanding the general nature of the language used by the learned Chief Justice, I am satisfied that he was not addressing the”principles and policies” test adopted in the earlier decisions: those decisions are not referred to at any point in the judgment. It follows that the submission that the decision in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232, modifies in any sense the statement of the law in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413 and Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381 is unsustainable.
It must be remembered in this context that, in the course of his judgment in East Donegal Co-Operative v. Attorney General [1970] I.R. 317 Walsh J. said at p. 341:-
“¦ interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”
Whatever else may be said of the legislation under consideration in the present case, it can hardly be suggested, in the context with which we are concerned, that it is in the slightest degree unclear or ambiguous. In the plainest of language it empowers the Minister to exclude and deport, not merely particular aliens, but whole categories of aliens determined by their nationality or “class”. Yet, if counsel on behalf of the first respondent’s submissions are well founded, the Minister would be precluded from doing precisely what the Act says he can do, assuming such a determination could be regarded as a “policy” decision. There would, moreover, be little left of the decisions in Pigs Marketing Board v. Donnelly (Dublin) Ltd. and Cityview Press Limited v. An Chomhairle Oiliúna on that view of the law, since it is difficult to imagine a case in which it could not be said that the Minister would, in any event, be offending the Constitution in purporting to make use of policy making powers.
Since a judgment I gave as a High Court Judge, Carrigaline Company Limited v. Minister for Transport [1997] 1 I.L.R.M. 241, was also relied on by counsel for the first respondent, I should refer to the passage in it from which he sought to draw support. That was a case concerned, inter alia,with the validity of regulations made under the Wireless and Telegraphy Acts, 1926 to 1988, in connection with the granting of licences. It was submitted that s. 5 of the Act of 1926 which conferred the licensing power was invalid having regard to Article 15.2.1. Having referred to Cityview Press Limited v. An Chomhairle Oiliúna, I went on at p. 289:-
“While it is true that the 1926 Act allows much latitude to the minister in making the regulations under the Act and gives no express guidance – other than what can be gleaned from the long title – as to the criteria, if any, to be set out in such regulations for the granting and refusing of such licences, that does not mean that the minister in making the regulations is necessarily making use of illicit legislative powers.”
Having gone on to cite part of the passage from the judgment of Finlay C.J. in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232 already referred to, I added at p. 290:-
“The same considerations are applicable to the powers conferred by the 1926 Act.
I am satisfied that this ground for challenging the validity of the legislation having regard to the provisions of the Constitution has not been made out.”
It appears to me that the case in question might well have been determined solely by reference to the “policies and principles” approach adopted in Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381. To the extent that my judgment in Carrigaline Company Ltd. v. Minister for Transport [1997] 1 I.L.R.M. 241, suggests that the decision in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232, is universally applicable to such cases, it was clearly wrong, and should not, in my view, be followed. I should add that the judgment was manifestly not delivered following a uniquely elaborate scrutiny in two separate hearings of the relevant constitutional provisions, as has happened in this case.
Applying the principles set out in the earlier decisions, Blayney J. as a High Court Judge, held in McDaid v. Sheehy [1991] 1 I.R. 1, that the power given by the Imposition of Duties Act, 1957, to the Government to impose customs and excise duties, and to terminate and vary them in any manner, constituted an impermissible delegation of the legislative power of the Oireachtas. He pointed out that the Government were left entirely free to determine what imported goods were to have a duty imposed on them and to determine the amount of the duty: there were no principles or policies contained in the Act itself. Clearly, Blayney J. did not regard the conferring by the Oireachtas on the Government of an unrestricted power to determine what goods were to be subject to duty and the amounts of the duty as of itself constituting a “policy”: it was rather the delegation of the relevant policy decisions to another agency, in that instance the Government.
The learned judge also found in that case that an order made in purported exercise of the provision which he had found to be unconstitutional had been confirmed by subsequent legislation and, for that reason, he refused the order of certiorari sought in respect of the order. That conclusion was upheld by this Court, but a majority of the Court also found that,having regard to the subsequent validation of the order in question, a pronouncement on the constitutionality of the legislation had not been necessary. In those circumstances, the appeal against the finding of unconstitutionality was allowed, but solely on the ground that the issue was moot and the view of Blayney J. technically obiter.
The continuing vitality of the Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, doctrine is further evidenced by one of the judgments in this Court in O’Neill v. Minister for Agriculture and Food [1997] 1 I.R. 539. In that case, Murphy J., without determining the issue, expressed doubts as to whether the power given by the Livestock Artificial Insemination Act, 1947, to the Minister for Agriculture and Food to make regulations for controlling the practice of artificial insemination of animals was constitutional, observing that at p. 553:-
“The difficulty of applying to the present case the tests enunciated by the former Chief Justice [in Cityview ] is that the Act of 1947 provides little guidance as to the policy or principles to be implemented by the minister or the regulations contemplated by the Oireachtas. It is not merely that the lack of policy or principles deprives the first respondent of suitable guidance but it also fails to provide any significant restriction on the ministerial power. This would be a reason for giving a wide construction to the power conferred on the first respondent and a consequential doubt as to the constitutionality of the statutory delegation.”
The importance of the principles set out in these authorities in a jurisdiction with a written constitution founded on the separation of powers is confirmed by the jurisprudence of the United States Supreme Court which is considered in detail by Denham J. in her judgment.
The Constitutionality of the Act of 1935
Since it was not enacted by the Oireachtas, the Act of 1935 does not enjoy the presumption of constitutionality, although it was not, I think, seriously disputed that the onus was on the applicant to demonstrate that the impugned provision was inconsistent with Article 15.2. Moreover, as pointed out by the High Court of Saorstat Eireann in The State (Kennedy) v. Little [1931] I.R. 39 and O’Higgins C.J. in Norris v. Attorney General [1984] I.R. 36, it is to be assumed, in the case of the transitory provisions of both Constitutions, that it was intended that the existing body should be carried forward with as little dislocation as possible.
I am also prepared to assume, for the purposes of this case, that the power vested in the Minister by s. 5(1)(e) will be exercised by him in accordance with the Constitution and that he will, where appropriate, apply fair procedures. While the presumption identified by Walsh J. in East Donegal Co-Operative v. Attorney General [1970] I.R. 317, is no doubt a corollary of the presumption of constitutionality itself, which, at least in the formal sense, does not arise in this case, the Minister, as a member of the Government established under the Constitution, is an office holder under the Constitution. It would create an anomalous situation if the holder of such an office would be presumed to act in a constitutional manner when discharging his duties under an Act of the Oireachtas, but not where the duty arose under a law which, although it predated the Constitution, continued to be the law, because of its consistency with the Constitution.
The central issue in the case, however, is as to whether s. 5(1)(e) of the Act of 1935 infringes Article 15.2 because the principles and policies, if any, which are to be given effect to by orders made by the Minister in exercise of his powers under the provision are not set out in the statute itself.
In considering that question, it is helpful to examine more closely the expression “principles and policies”. The “policy” of a particular legislative provision is presumably an objective of some sort which parliament wishes to achieve by effecting an alteration in the law. To take a clear cut example, the policy of legislation concerning rented property was initially to prevent the exploitation of tenants by drastically abridging freedom of contract. In more recent times, the Oireachtas took the view, prompted by the courts (see Blake v. Attorney General [1982] I.R. 117) that the law was, in some areas at least, unduly weighted in favour of the tenants. Accordingly, the pre-existing law was altered so as to give effect to a different objective. However, as the use of the expression “principles and policies” in the plural by O’Higgins C.J. indicates and the example I have given illustrates, one can have different policies underlying various provisions in the same legislation or legislative code.
In the present case, accordingly, it is necessary to identify first the alterations in the law, if any, effected by the relevant provisions and, secondly, the objective which was intended to be thereby achieved.
In considering what was the state of the law when the Act of 1935 was enacted, I shall leave out of account, for reasons which will become apparent later, the legislation which was then in force and which was repealed by the Act of 1935 itself. It is clear that, altogether apart from the provisions of the Act of 1935 and any preceding legislation, Saorstat Eireann as a sovereign state enjoyed the power to expel or deport aliens from the State for the reasons set out in the judgment of Gannon J. in Osheku v. Ireland [1986] I.R. 733. It is, of course, the case that in modern times, both here and in other common law jurisdictions, the exercise of the power is regulated by statute, but that does not affect the general principle that the right to expel or deport aliens inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute.
An explanation of the manner in which the principle was applicable in the case of member states of the former British Commonwealth is to be found in the judgment of Lord Atkinson giving the advice of the Judicial Committee of the Privy Council in Attorney General for Canada v. Cain [1906] A.C. 542 at p. 546, viz.:-
“One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests: Vattel, Law of the Nations,Book 1, s. 231; Book 2 s. 125. The Imperial Government might delegate these powers to the governor or the Government of one of the colonies, either by royal proclamation which has the force of the statute – Campbell v. Hall [1774] 1 Cowper, 204 – or by a statute of the Imperial Parliament, or by a statute of a local Parliament to which the Crown has assented. If this delegation has taken place, the depositary or depositaries of the executive and legislative powers and authority of the Crown can exercise those powers and that authority to the extent delegated as effectively as the Crown could itself have exercised them.”
Article 51 of the Constitution of the Saorstat Eireann declared that the executive authority of the State was to be vested in the King, but the wording of the article made it clear that, in effect, it was to be vested in the Executive Council which was to “aid and advise” the Crown in its exercise. In English constitutional theory, the executive power of the State, to the extent that it was not expressly delegated by legislation to other bodies, such as Ministers, was regarded as being vested in the Crown in the form of the royal prerogative. It was accepted by counsel in the present case that the power of the State to deport aliens independently of any statutory power was part of the prerogative power. It is unnecessary, in the context of the present case, to consider in any detail the vexed question as to the extent to which, and the form in which, the royal prerogative survived the enactment of the Constitution of 1922 which was considered by this court in Webb v. Ireland [1988] I.R. 353 and Howard v. Commissioners of Public Works [1993] I.L.R.M. 665. It is sufficient to say that, in the light of the authorities to which I have referred, it is clear that, at the time the Act of 1935 was enacted, the power of Saorstat Eireann to expel or deport aliens was, in the absence of legislation, vested in the Crown acting on the advice of the Executive Council.
The change, accordingly, effected in the law by s. 5(1)(e) was not the conferring on the State of an absolute and unrestricted power to deport aliens: that power was already vested in the State. But it was now to be exercised by the Minister in whatever manner he chose, subject only to the restrictions imposed elsewhere in the Act in the case of diplomatic and consular representatives and aliens who had been resident in the State for at least five years. In short, the objective of s. 5(1)(e) was to enable the Minister to exercise, at his absolute and uncontrolled discretion, the power of deporting individual aliens or categories of aliens or, if he considered it a preferable course, to spell out himself in the form of regulations the restrictions or qualifications which should be imposed on the exercise of the power. The Minister in effect opted for the first course in making the Order of 1946 and his exercise of the power was found by this Court in Tang v. Minister for Justice [1996] 2 I.L.R.M. 46, to be intra vires the powers conferred by section 11.
That was certainly an alteration in the law; but to describe it as a “policy” begs the question, since it assumes that such an alteration can properly be so described. The policy of the legislation was not to enable the State to deport aliens at its pleasure, subject only to whatever qualification, by legislation or otherwise, it elected to impose on the exercise of the power: that power was already vested in the State. The effect of the alteration was to enable the Minister, and not the Oireachtas, to determine, not merely the aliens or classes of aliens who should be deported, but also the modifications, if any, to which the exercise of the power should be subjected. Undoubtedly, the designation of categories of aliens as being either immune from, or subject to, deportation at the discretion of the State and the delineation in legislative form of modifications on the exercise by the State of its powers in the area of deportation were policy decisions; but they were decisions which could henceforth be taken by the Minister. The Oireachtas had, in effect, determined that policy in this area should be the responsibility of the Minister, subject only to the restrictions to which I have already referred and, of course, to the power of annulment vested in either House. As Geoghegan J. succinctly put it at p. 42:-
“The Oireachtas of Saorstat Eireann did not legislate for deportation. It merely permitted the Minister for Justice to legislate for deportation.”
The situation in this case is in some ways analogous to that which arose in McDaid v. Sheehy [1991] 1 I.R. 1. The central role in the raising of
revenue allotted to Dail Eireann under Article 17 of the Constitution had been effectively delegated in that case to the Government and, as Blayney J. found, such a delegation could not of itself be properly described as a “policy”. It is difficult to see how the similar assignment in this case of the State’s power to deport aliens to a minister could properly be regarded as a “policy”.
It is quite usual to find that the exercise of the rule making power is subject to annulment by either House and I do not underestimate the value of such a provision. However, even in the hands of a vigilant deputy or senator, it is something of a blunt instrument, since it necessarily involves the annulment of the entire instrument, although parts only of it may be regarded as objectional. In any event, I do not think that it could be seriously suggested that a provision of this nature was sufficient, of itself, to save an enactment which was otherwise clearly in breach of Article 15.2.
It cannot be too strongly emphasised that no issue arises in this case as to whether the sovereign power of the State to deport aliens is executive or legislative in its nature: it is clearly a power of an executive nature, since it can be exercised by the executive even in the absence of legislation. But that is not to say that its exercise cannot be controlled by legislation and today is invariably so controlled: any other view would be inconsistent with the exclusive law making power vested in the Oireachtas. The Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to be exercised: what they cannot do, in my judgment, is to assign their policy making role to a specified person or body, such as a Minister.
It is instructive, in this context, to consider the manner in which the Minister actually exercised his powers under s. 5 when he came to make the Order of 1946. I have already cited in part art. 13 which relates to deportation: its remaining provisions are purely regulatory or administrative in nature. However, the provisions of art. 5(3) provide an interesting contrast. They are as follows:-
“Leave to land in the State shall not be given to an alien coming from any place outside the State other than Great Britain or Northern Ireland, and leave to remain in the State for more than one month shall not be given to an alien who has come from Great Britain or Northern Ireland, unless the alien complies with the following conditions, that is to say:-
(a) he is in a position to support himself and his dependants;
(b) if desirous of entering the service of an employer in the State, he produces a permit in writing for his engagement issued to the employer by the Minister for Industry and Commerce;
(c) he is not a lunatic, idiot, or mentally deficient;
(d) he is not the subject of a certificate given to the immigration officer by a medical inspector that for medical reasons it is undesirable that the alien should be permitted to land;
(e) he has not been sentenced in a foreign country for any extradition crime within the meaning of the Extradition Acts, 1870 to 1906;
(f) he is not the subject of a deportation order;
(g) he has not been prohibited from landing by the Minister;
(h) he fulfills such other requirements as may be directed from time to time by any general or special instructions of the Minister.”
These provisions, which were subsequently replaced by the Aliens Order, 1975, were clearly intra vires the wide-ranging powers given by s. 5(1) of the Act of 1935. They also replicate to some extent provisions which were at one stage applicable to Ireland when part of the United Kingdom but which were contained in s. 1 of the Aliens Act, 1905, and not in any regulation or order made under that Act. Section 3 of the same Act provided for the deportation of “undesirable aliens” but only in specified circumstances, e.g. where an offence had been committed. The restrictions on the deportation power were to be found, accordingly, in the Act itself and not in delegated legislation.
It is convenient at this juncture to continue the account of the pre-1935 legislation. On the 5th August, 1914, within hours of the beginning of the Great War, the Imperial Parliament at Westminister enacted the Aliens Restrictions Act, 1914. It enabled the Crown to make wide-ranging orders in Council dealing with the admissions and deportation of aliens “when a state of war exists ¦ or when it appears that an occasion of imminent national danger or great emergency has arisen ¦”
The hope was no doubt entertained that these draconian powers would be available only for so long as the war lasted, but that was to prove as illusory as the expectation that the tax on income introduced by Pitt during the Napoleonic Wars would be equally short lived. In 1919, the same parliament enacted the Aliens Restrictions (Amendment) Act, 1919, which provided in s.1 that the powers to which I have referred could now be exercised “at any time”. It also provided for the repeal of the Act of 1905. The Act of 1935, while repealing both the Acts of 1914 and 1919, replaced them with legislation of similarly draconian severity.
It is doubtful whether the Acts of 1914 and 1919 survived the enactment of the Constitution of the Irish Free State, article 12 of which provided that:-
“The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstat Eireann ) is vested in the Oireachtas.”
While the wording is somewhat different from Article 15.2, it would seem to follow inevitably that, if s. 5(1)(e) was inconsistent with the provisions of Article 15.2, of the present Constitution, the corresponding provisions in the Acts of 1914 and 1919 were similarly inconsistent with the provisions of article 12 of the Constitution of the Irish Free State, which contained transitory provisions similar to those contained in the present Constitution.
That, however, is of interest only, as is the question as to whether the Act of 1935 itself survived at least until the enactment of the present Constitution. Pursuant to the provisions of article 50 of the Constitution of 1922, as interpreted by the courts, the Oireachtas were entitled to amend the Constitution by ordinary legislation at the time the Act of 1935 was enacted. (See The State (Ryan) v. Lennon [1935] I.R. 170.) A difficult question has arisen in other cases as to whether the undoubted power of the Oireachtas to amend the Constitution of 1922 by ordinary legislation extended to enactments which, although inconsistent with its provisions, did not purport in express terms to amend that Constitution. It had been held by the Court of Appeal of Southern Ireland in R. (Cooney) v. Clinton [1935] I.R. 245 (actually decided in 1924) that the Constitution could be so amended, but that view appeared to have been rejected by this Court in Conroy v. Attorney General [1965] I.R. 411, where it was said at p. 443 that:-
“¦ The Court rejects the submission that the Constitution of Saorstat Eireann was amended by the Road Traffic Act, 1933 ¦”
However, in that case the court had already found that the corresponding provisions in the Road Traffic Act, 1961, were constitutional and, accordingly, it necessarily followed that the Act of 1933 was not in conflict with the provisions of the Constitution of 1922 which were in similar terms to those under consideration in Conroy v. Attorney General. A more complete statement of the position is to be found in the judgment of O’Dalaigh C.J. in the subsequent case of McMahon v. Attorney General [1972] I.R. 69, where he said at p. 101:-
“[The Electoral Act 1923] was passed within the initial eight years during which, pursuant to Article 50 of the Constitution of Saorstat Eireann , 1922, that Constitution could be amended by ordinary legislation. Moreover, in order that ordinary legislation should prevail over the Constitution, it was not necessary that it should specify in what respects or in respect of what Articles it amended the Constitution of 1922: see the judgment of Hanna J. in Attorney General v. McBride [1928] I.R. 451, 456. Subsequently, the Constitution (Amendment No. 16) Act 1929, extended the period of eight years (mentioned in Article 50) to sixteen years, with the effect that, during the existence of Saorstat Eireann it was at no time possible to challenge, as being unconstitutional, any ordinary legislation passed by the Oireachtas of Saorstat Eireann .”
[See also Shanley v. Commissioners of Public Works [1992] 2 I.R. 477.]
Since, however, this particular issue was not fully argued in the present case and is in any event unnecessary to its disposition, I would not, for myself, express any concluded view as to whether, assuming its lack of conformity with the Constitution of 1922, the Act of 1935 should be held to have amended that instrument.
Conclusion
Accordingly, one returns finally to the initial question, i.e.as to whether s. 5(1)(e) was inconsistent with Article 15.2.1 of the Constitution. I am satisfied that the power which it gave to the Minister to determine the policies and principles by reference to which the power already vested in the State to deport aliens should be exercised was inconsistent with the exclusive role in legislation conferred on the Oireachtas by Article 15.2.1.
I would dismiss the appeal.
In re Countyglenplc
[1995] 1 ILRM 213
By order of the High Court made on 19 January 1994 pursuant to s. 8 of the Companies Act 1990 the above named Frank Clarke was appointed by the High Court to investigate the affairs of the above named Countyglen plc in relation to the matters specified in that order. From time to time applications have been made to the court by Mr Clarke to extend the time for delivery of his report and otherwise. On 30 June 1994 Mr Clarke applied ex parte for an order giving directions to him under s. 7(4) of the 1990 Act and for an order extending further the time for delivery of his report herein. In that application counsel on behalf of Mr Clarke expressly applied that the same should be heard ‘otherwise than in public’.
Whilst some of the directions sought by Mr Clarke were highly confidential and disclosure of the application would have been likely to prejudice the sensitive enquiries which he was then seeking to pursue, it was clear that the 1990 Act did not confer on the court any statutory power to hear the application otherwise than in public. At my request, counsel on behalf of the applicant argued that the function which the court was requested to exercise on the application was an administrative one and did not constitute the administration of justice within the meaning of Article 34 of the Constitution. Having regard to the urgency and importance of the matter, I acceded to the application but only on the terms that the proceedings before me were recorded by a stenographer and the Attorney General given notice of the application and the order made by me thereunder so that he would have an opportunity of contending that the application was required to have been heard in public.
On the hearing of the issue counsel on behalf of the Attorney General contended that the functions aforesaid constituted the administration of justice.
The reliefs sought by the inspector were directions and orders pursuant to s. 7(4) of the 1990 Act which provides as follows:
(4) Where the court appoints an inspector under this section or s. 8, it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible.
The particular relief sought by the inspector under that subsection is reflected in the order of 30 June 1994 which, so far as material, provides as follows:
It is ordered pursuant to s. 7(4) of the Companies Act 1990 that the inspector be authorised and is hereby permitted to engage a firm of lawyers in Guernsey on such terms as may be approved by the chief registrar of this Court to make an application under the Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) Law 1991 to the Procurer in Guernsey to have him exercise his powers under that Act to investigate the affairs of Dykstra Holdings Ltd insofar as such investigation may be material to the investigation being carried out by the inspector herein.
In his written and oral submissions to the court, counsel on behalf of the inspector referred to the five ‘characteristic features’ of the administration of justice identified by Kenny J in McDonald v. Bord na gCon [1965] IR 217 and the approval of that analysis by the Supreme Court more recently in Keady v. Commissioner of An Garda Síochána [1992] 2 IR 197; [1992] ILRM 312 and Goodman International v. Hamilton [1992] IR 542; [1992] ILRM 143. Counsel contended that the order of the court made herein on 30 June 1994 did not possess any of the five characteristics aforesaid.
The essence of the argument made by counsel on behalf of the Attorney General was that the appointment of an inspector in the first instance under either ss. 7 or 8 of the Companies Act 1990 amounted to the administration of justice as such an appointment would affect the rights and interests of the company over which the inspector was appointed and the interests of the shareholders and creditors thereof. Counsel for the inspector did not disagree with that contention. However, counsel on behalf of the Attorney General went on to contend that the order made herein on 30 June 1994 was effectively an order under s. 9 of the Companies Act 1990 approving the decision of the inspector to investigate the affairs of another body corporate, namely, Dykstra Holdings Ltd as a company related to Countyglen plc. If this were so it was logical to argue that the extension of the investigation to another company was as much an administration of justice as the original order appointing the inspector.
In my view, the argument made on behalf of the Attorney General is unfounded. The order of 30 June 1994 did not purport to invoke s. 9 of the Companies Act 1990 nor did it give the inspector the right or impose upon him the duty to investigate or report upon the affairs of Dykstra Holdings Ltd. The investigation into the affairs of the latter company, insofar as it would take place, would be carried out by the Procurer in Guernsey in pursuance of the powers conferred upon him, that is to say, the Procurer, by the Criminal Justice (Fraud Investigation) (Bailiwick of Guernsey) Law 1991. Mr Clarke would not have any rights or duties in respect of Dykstra Holdings Ltd though, as I pointed out, in Chestvale Properties Ltd v. Glackin [1993] 3 IR 35 at p. 53; [1992] ILRM 221 at p. 236 documents in the possession of a company not under investigation may be relevant to the proper investigation of a company over whose affairs an inspector has been appointed. In the circumstances I am satisfied that the order of 30 June 1994 was made, as it is expressed to be made, under s. 7(4) as a direction to the inspector ‘with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible’.
Does the giving of directions under that subsection constitute the administration of justice? The fact that orders under that subsection must be made by a judge of the High Court does not of itself determine whether such orders constitute the administration of justice. As Walsh J pointed out in the State (O.) v. O’Brien [1973] IR 50 at p. 67: *217
The quality of the act is to be determined by the act itself, not by the person who is doing the act.
Important decisions made by judges in relation to the composition of courts and the listing of criminal trials have been held to be administrative procedures rather than the administration of justice (In re Singer (1963) 97 ILTR 130 and McGlinchey v. Governor of Portlaoise Prison [1988] IR 671). Furthermore in In re. R. Ltd [1989] IR 126; [1989] ILRM 757, Walsh J adverted to the fact that ‘many matters which come under the headings “lunacy and minor matters” probably do not constitute the administration of justice but simply the administration of the estates and affairs of the wards of court’.
Not only do I agree with the view tentatively expressed by Walsh J in In re R. Ltd but I believe that it is generally accepted in practice, though not tested formally, that many orders made in the course of the winding-up of companies by the court are merely administrative directions and not the administration of justice. Indeed in recent years practice directions have been made by the President of the High Court which expressly recognise that orders for the extension of time for the lodgment of a statement of affairs, a direction to the Taxing Master to tax costs already awarded and other similar matters can and should be made informally and in camera.
It seems to me that most of the matters in respect of which the court would make an order under s. 7(4) are matters which the inspector might do within his own discretion but which he might prefer for his own protection or some reason to have sanctioned by an order of the court confirming the propriety of his action. When it is recognised that the investigation by the inspector is not itself the administration of justice — though from time to time it may involve the requirement to act judicially — it is difficult to see how or why guidance or directions as to how those functions should be carried out could themselves constitute the administration of justice.
In my view, the particular direction sought and given in the present case in relation to the proceedings in Guernsey did not constitute the administration of justice and accordingly was not required under the Constitution to be dealt with in public.
Zalewski v The Workplace Relations Commission
(Approved) (Rev 1) [2020] IEHC 178 (21 April 2020)
INTRODUCTION
The principal issue for determination in these proceedings is whether the procedural mechanisms for the resolution of employment disputes, which have been established under the Workplace Relations Act 2015, involve the administration of justice within the meaning of Article 34 of the Constitution. It is the Applicant’s case that the determination of (i) a claim of “unfair dismissal”, and (ii) a claim for payment in lieu of notice, are matters which are properly reserved to judges appointed in accordance with the Constitution. The Workplace Relations Act 2015 is said to be invalid in circumstances where it has purported to confer these decision-making functions upon a non-judicial body, namely adjudication officers appointed by the Minister for Jobs, Enterprise and Innovation. The alleged invalidity is said to extend equally to the body designated to hear appeals from the adjudication officers, namely, the Labour Court.
This challenge to the validity of the legislation has been strongly contested on behalf of the State respondents. The grounds of opposition will be considered in detail presently. For introductory purposes, however, it may be helpful to highlight the following two arguments made on behalf of the State respondents. First, it is said that a decision of an adjudication officer lacks the character of a binding determination. If a claimantemployee wishes to enforce the decision, it is necessary to apply to the District Court to do so. The necessity to have recourse to the judicial power to enforce a decision is, it is said, fatal to the argument that the adjudication officers are themselves carrying on the administration of justice. Secondly, it is said that employment disputes have not traditionally been regarded as justiciable. Put otherwise, employment disputes have not traditionally fallen within the purview of the courts.
In addition to his principal contention that the Workplace Relations Act 2015 is invalid by reference to Article 34 of the Constitution, the Applicant makes an argument, in the alternative, to the effect that the procedures prescribed under the Act are deficient. In particular, complaint is made that there is no provision for the taking of evidence on oath or affirmation; no express provision for the cross-examination of witnesses; and the hearings before the adjudication officers take place in private. Complaint is also made that there is no requirement for adjudication officers to hold a legal qualification.
STRUCTURE OF JUDGMENT
This judgment is divided into four parts as follows. Part I sets out the factual background, the procedural history and provides an overview of the relevant legislative provisions. Part II addresses the Applicant’s principal argument, namely that the decision-making under the Workplace Relations Act 2015 represents the administration of justice for the purposes of Article 34 of the Constitution. Part III addresses the Applicant’s alternative argument, namely that the procedures under the Workplace Relations Act 2015 are deficient, and in breach of the Applicant’s personal rights under Article 40.1 of the Constitution. A related argument, made by reference to the European Convention on Human Rights, is also addressed under this Part. Finally, Part IV of the judgment will set out a summary of the conclusions.
ABBREVIATIONS AND SHORTHAND
Where convenient, the following abbreviations will be used in this judgment.
Workplace Relations Act 2015 WRA 2015
Unfair Dismissals Act 1977 UDA 1977
Unless expressly stated, any references in this judgment to the functions and powers of an adjudication officer should be understood as being equally applicable to the functions and powers of the Labour Court. Distinctions between the two tiers of decision-making will, however, be relevant to the discussion of certain issues, such as the power to take evidence on oath and the requirement for a public hearing. These distinctions will be explained in the context of the more detailed discussion.
PART I
FACTUAL BACKGROUND
The within challenge to the constitutional validity of the Workplace Relations Act 2015 has its genesis in the purported dismissal of the Applicant by his former employer, Buywise Discount Store Ltd. (“the employer”). By letter dated 26 April 2016, the employer had purported to dismiss the Applicant from his employment as a supervisor of a convenience store. The Applicant instituted (i) a claim for unfair dismissal pursuant to the Unfair Dismissals Act 1977, and (ii) a claim for payment in lieu of notice pursuant to the Payment of Wages Act 1991. These claims were presented to the Director General of the Workplace Relations Commission, and were duly referred to an adjudication officer (Ms Rosaleen Glackin) pursuant to section 41 of the WRA 2015 and section 8 of the UDA 1977. The adjudication officer issued a purported decision on 16 December 2016, dismissing the claims. (The circumstances leading up to the making of that purported decision are discussed below). Following on from that decision, the Applicant instituted these judicial review proceedings.
This judgment is not concerned with the underlying merits of the claims for unfair dismissal and for payment in lieu of notice. Rather, the principal dispute between the parties to these judicial review proceedings is as to the appropriate procedure by which these claims should be heard and determined. The Applicant maintains that an adjudication upon the claims involves the administration of justice, and, as such, is reserved to a court of law. Conversely, the State respondents contend that the resolution of such disputes has properly been entrusted, under the Workplace Relations Act 2015, to adjudication officers, in the first instance, with a right of appeal thereafter to the Labour Court.
Given that the underlying merits of the claim for unfair dismissal and for payment in lieu of notice are not before this court, it is not necessary—nor, indeed, appropriate—to discuss the claim in any detail. There are, however, three aspects of the claim which are potentially relevant to the constitutional issues the subject-matter of these proceedings, as follows.
First and foremost, the Applicant is aggrieved by the manner in which his claim had been dealt with by the adjudication officer to whom it had initially been referred. The sequence of events in this regard is said to be indicative of a systemic or structural failing in the operation of the adjudication process provided for under the Workplace Relations Act 2015.
The evidence before this court indicates that the sequence of events was as follows. The Applicant’s claim had been referred by the Director General of the Workplace Relations Commission to an adjudication officer, Ms Rosaleen Glackin. A hearing had been scheduled for 26 October 2016. The hearing commenced on that date, and the adjudication officer received written submissions and other documentation from the parties. An application for an adjournment was then made on behalf of the employer. The parties are in disagreement as to the precise purpose of this adjournment application. On the one hand, it is suggested on behalf of the State respondents that the hearing was adjourned to allow a witness on behalf of the employer to attend and to be crossexamined at the resumed hearing. On the other hand, the Applicant submits that the adjournment was simply to allow the witness to attend, and that no decision had yet been made as to whether he would be subject to cross-examination. The significance of this disagreement will become clearer in the context of the discussion of the right to crossexamine in Part III of this judgment. (See paragraphs 183 et seq.). One of the criticisms made of proceedings under the WRA 2015 is that adjudication officers are often reluctant to allow the cross-examination of witnesses. The Applicant denies that the adjudication officer had made a ruling in his favour to allow cross-examination.
The parties are, however, agreed that the hearing on 26 October 2016 only lasted a matter of minutes, and that a further hearing date was to be scheduled. It seems that the adjudication officer was not in a position to assign a date there and then, but she indicated to the parties that they would be notified in due course of the rescheduled hearing date. The hearing was ultimately rescheduled for 13 December 2016.
Events then took what can only be described as a bizarre turn. The parties had duly attended at the Workplace Relations Commission’s premises on 13 December 2016. On that occasion, they were informed that a decision had already issued in respect of the claim, and that the hearing date had been scheduled in error. This was so notwithstanding that a full hearing of the claim had never taken place. It seems that the parties actually spoke to the adjudication officer herself on 13 December 2016, and she informed them that the decision had issued. Thereafter, a five page decision was issued by the adjudication officer which reads as if a full hearing had, in fact, taken place. This decision bears the date 16 December 2016, i.e. a number of days subsequent to the events of 13 December 2016. It would seem from this chronology that the adjudication officer went ahead and issued her decision notwithstanding that she had been on notice of the fact that no proper hearing had taken place.
The Applicant is highly critical of this sequence of events, and suggests that the only credible explanation for the adjudication officer having issued a detailed decision without having had a proper hearing is that adjudication is routinely issued in such a formulaic manner after a consideration of written documentation, rather than a consideration of oral evidence proffered during an oral hearing. (See, in particular, page 6 of the written submissions).
The State respondents have conceded that the decision of 16 December 2016 is invalid, and have indicated that they will consent to an order of certiorari setting aside the decision.
The potential significance of the events of December 2016 to these judicial review proceedings is, as noted earlier, that the Applicant relies on same as indicative of a systemic or structural failing in the operation of the adjudication process.
The second aspect of the claim which is relevant to the constitutional challenge is as follows. The Applicant maintains that the claim for unfair dismissal gives rise to certain factual disputes, and that cross-examination will be necessary in order to properly resolve these disputes. The Workplace Relations Act 2015 is said to be deficient in that it does not expressly provide for a right of cross-examination. This issue is discussed further in Part III of this judgment, at paragraphs 183 et seq.
The third aspect is as follows. The Applicant maintains that the nature of the grounds originally relied upon by the employer to justify the dismissal are such as to impact on his constitutional right to a good name. More specifically, it is said that the employer made unfounded allegations of dishonesty against the Applicant. The Applicant wishes to vindicate his good name, and it is for this reason that he seeks a public hearing of his claim.
PROCEDURAL HISTORY
The within proceedings were instituted by way of an ex parte application for leave to apply for judicial review on 20 February 2017. The proceedings seek a series of declaratory reliefs, and an order of certiorari quashing the decision of the adjudication officer dated 16 December 2016.
The State respondents have conceded that the decision of the adjudication officer is invalid, and have offered to consent to the making of an order of certiorari. It had initially been suggested in correspondence that the granting of this relief would be sufficient to dispose of the judicial review proceedings. When the Applicant did not agree to this suggested course of action, the State respondents issued a motion seeking to have the Applicant’s claim for declarations pursuant to the Constitution and the European Convention on Human Rights Act 2003 dismissed. This application to dismiss had been successful before the High Court, but was ultimately refused by the Supreme Court: see Zalewski v. Adjudication Officer and Workplace Relations Commission [2019] IESC 17.
The procedural history is very helpfully set out in the judgment of the Supreme Court, and I respectfully adopt that summary. I do not propose to add to the length of this judgment unnecessarily by repeating same here.
At the hearing before me, there was some disagreement between the parties as to the precise consequences of the Supreme Court judgment. The disagreement centres on the question of whether the Applicant is entitled to rely on decision-making carried out by adjudication officers pursuant to legislation other than the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991. To assist the reader in understanding this disagreement, it is necessary to sketch the interaction between the impugned provisions of the Workplace Relations Act 2015, and other pieces of legislation in the context of employment rights. In brief, Part 4 of the Workplace Relations Act 2015 has sought to put in place a mechanism whereby claims and disputes under various pieces of legislation will be adjudicated, in the first instance, by adjudication officers, with a right of appeal thereafter to the Labour Court. This streamlined system replaces a legislative regime whereby there had been a large number of different decision-making bodies involved, including, for example, rights commissioners, the Employment Appeals Tribunal (“EAT”), the Equality Tribunal, the Labour Court, and the National Employments Rights Agency (“NERA”).
In somewhat oversimplified terms, the relevant provisions of Part 4 of the Workplace Relations Act 2015 might be regarded as setting out the procedure, with the substantive rights to be found under other pieces of legislation. On the facts of the present case, for example, the principal claim advanced by the Applicant is for unfair dismissal pursuant to the Unfair Dismissals Act 1977. The substantive jurisdiction to hear and determine such claims has now been transferred to the adjudication officers and the Labour Court; and the relevant procedures to be followed—in terms of, for example, whether the hearings are to be held in public or private—are to be found primarily under the WRA 2015.
This procedural/substantive dichotomy, with the substantive rights being found under the parent legislation and the procedure prescribed under the Workplace Relations Act 2015, is not always observed. For example, in some instances aspects of the procedure will also be regulated by the parent legislation, subject to the amendment that the adjudication officers have been substituted for the original decision-maker. Thus, in the case of a claim for unfair dismissal, a power on the part of an adjudication officer to compel the attendance of witnesses appears to be provided for under the UDA 1977 itself (section 8(13)), rather than under the WRA 2015 (section 41).
For the purposes of presenting his constitutional challenge, the Applicant seeks to rely on the nature and extent of the substantive jurisdiction which has been conferred upon the adjudication officers and the Labour Court under other legislation in addition to that conferred under the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991. During the course of the hearing before me, reference was made on a number of occasions to the fact that these decision-makers now exercise functions under more than fifty pieces of legislation. The argument has been made that almost the entire of employment law has been “consigned” to these decision-makers. The point has been made rhetorically that if this can be done in one significant area of the law, i.e. employment law, then, in principle, it can be done in relation to other areas such as, say, family law or commercial law. The sheer breadth of jurisdiction conferred upon the adjudication officers and the Labour Court is said to be relevant to arguments such as, for example, whether the exercise of this statutory jurisdiction involves the administration of justice under Article 34 of the Constitution, or the exercise of limited functions and powers of a judicial nature within the meaning of Article 37 of the Constitution.
In pointing up the extent of the monetary jurisdiction conferred upon an adjudication officer, the example has been given of the Protected Disclosures Act 2014, where compensation equivalent to five years’ salary can be awarded. The potential scale of an award under this legislation might well exceed the general monetary jurisdiction of the Circuit Court (€75,000).
The State respondents object to these lines of argument. It is submitted that the Applicant is confined to the facts of his case. More specifically it is said that the Applicant can only legitimately refer to the legislative provisions pursuant to which his claim is made, namely the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991. Counsel on behalf of the State respondents draws attention to the following two passages from the judgment of the Supreme Court: Zalewski v. Adjudication Officer and the Workplace Relations Commission [2019] IESC 17, [20] and [49].
“20. The core submission of the appellant is that, as a person who has made a claim that he has been unfairly dismissed within the meaning of the 1977 Act and to the remedies provided by that Act and to unpaid wages in lieu of notice under the 1991 Act, that he has locus standi to challenge the constitutionality of provisions of the 1977 Act and the 2015 Act which require those claims to be determined by an adjudication officer of the WRC and on appeal by the Labour Court. He submits that as a person who is about to have his claims for redress and compensation for his alleged unfair dismissal and unpaid wages determined in accordance with a statutory scheme which he contends is inconsistent with the Constitution, he is in real and imminent danger of being adversely affected by the operation of the relevant provisions of the 2015 Act and the 1977 Act, as amended.”
[…]
“49. It is important to make clear that this decision does not determine the arguments which the appellant is entitled to pursue in his constitutional challenge relevant to the grounds upon which he has been granted leave. I make this observation by reason of the distinction made, in my view correctly, by McCarthy J. in his dissenting judgment in Norris v. The Attorney General [1984] IR 36 at p. 90 that locus standi ‘. means the status or qualification, as it were, to maintain the action, and not the right to advance arguments of a particular kind, unrelated to the facts of the case, in support of the challenge made to the statute.’.* I respectfully agree with this observation. If there is objection made to any of the arguments sought to be advanced on behalf of the appellant who has locus standi to pursue the constitutional challenge, that would be initially a matter for the High Court and may involve different considerations.”
*Emphasis (italics) added.
The submissions on behalf of the State respondents are well made. The Applicant is not at large as to the arguments which he is entitled to advance in support of his constitutional challenge. The arguments must be rooted in the two pieces of legislation pursuant to which the substantive relief in his claim for redress is sought. One of the objectives of a locus standi requirement is that a constitutional challenge to legislation should have the force and urgency of reality. See Cahill v. Sutton [1980] I.R. 269 (at 283).
“While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring proceedings to have a particular statutory provision declared unconstitutional, there are countervailing considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is essentially another person’s case would not be conducive to the administration of justice as a general rule. Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality. There is also the risk that the person whose case has been put forward unsuccessfully by another may be left with the grievance that his claim was wrongly or inadequately presented.”
The importance of this requirement for concrete personal circumstances can be illustrated by the following hypothesis. Suppose the Applicant’s claim in the present case had been confined to one under the Payment of Wages Act 1991 for payment in lieu of notice, and did not include a claim for unfair dismissal. The monetary value of such a hypothetical claim would, obviously, be much less, and might be confined to a number of weeks’ wages rather than two years’ salary. The monetary value of the claim could, potentially, be relevant to the outcome of the proceedings. For example, the modest monetary value of the claim might be seen as significant in the context of the arguments advanced in respect of Article 37 of the Constitution. The argument for saying that a claim which is measured in hundreds, rather than in thousands, of euros represents the exercise of “limited functions and powers” of a judicial nature would be stronger than in the case of a claim for unfair dismissal. It would not be an answer to this for the Applicant to say “well, although my claim is relatively modest, the procedures prescribed under the WRA 2015 also apply to different types of claims, under different pieces of legislation, which may well have a greater monetary value”. To allow this line of argument would be to permit the Applicant to present and argue what is essentially another person’s case. The constitutional challenge must, instead, be assessed by reference to the substantive employment law jurisdiction which had actually been invoked by the litigant (on this hypothesis, a modest claim for the payment of wages in lieu of notice).
To put the matter another way, the WRA 2015 has put in place a set of omnibus procedures which apply to a whole spectrum of decision-making. There is nothing inherently objectionable in prescribing a procedure which allows an administrative decision-maker to make certain types of determinations on the basis of an informal hearing conducted in private. In some instances, such a procedure will be constitutionally valid. In others, it may not be. An assessment of whether those procedures are constitutionally valid cannot be carried out in the abstract, without reference to the substance of the decision-making at issue. This is because the assessment of issues such as, for example, whether a particular decision-making function involves the administration of justice, or whether there is a constitutional right to cross-examination, will depend largely on the precise nature and extent of the rights and liabilities affected by the decision-making.
The Applicant in the present case is certainly entitled to make arguments by reference to matters such as the jurisdiction of the adjudication officers and the Labour Court to award statutory compensation equivalent to two years’ salary under the UDA 1977. The Applicant is equally entitled to argue that his claim engages his constitutional rights to earn a livelihood and to a good name. The Applicant can make the general point that the adjudication officers and the Labour Court exercise jurisdiction under a great number of pieces of legislation. The Applicant cannot, however, go further and rely on specific features of those other pieces of legislation. He cannot for example, rely on the fact that under the Protected Disclosures Act 2014 compensation equivalent to five years’ salary can be awarded. The Applicant has not brought such a claim.
As it happens, any limitations arising from the locus standi requirement would appear to have had very little practical effect on the presentation of the constitutional challenge in this case. This is because a claim under the Unfair Dismissals Act 1977 is one of the more significant type of claims which comes within the jurisdiction of the adjudication officers and the Labour Court. Moreover, the legislative history of the UDA 1977 is directly relevant to one of the issues arising in the judicial review proceedings, namely whether the decision-making function now exercised by adjudication officers under the WRA 2015 is of a type which has traditionally or historically been performed by the courts. (This is the fifth characteristic of the administration of justice per McDonald v.Bord na gCon [1965] I.R. 217. This issue is discussed in detail at paragraphs 106 et seq. below).
It is not at all obvious that the Applicant’s arguments would have been strengthened by reference to other legislation, such as the Protected Disclosures Act 2014. The facts of the present case amply illustrate the breadth of the jurisdiction which can be exercised by adjudication officers and the Labour Court, and allow the constitutional issues to be teased out fully. Put shortly, this case is probably as good a “test case” as any by reference to which the constitutional validity of the procedures under Part 4 of the Workplace Relations Act 2015 might be assessed.
OVERVIEW OF UNFAIR DISMISSALS ACT 1977
The following aspects of the Unfair Dismissals Act 1977 (“the UDA 1977”) are relevant to the constitutional issues in these proceedings. (This overview commences with the UDA 1977 as initially enacted; any material amendments will then be discussed).
First, a determination by the Employment Appeals Tribunal could not be directly enforced. Rather, in the event that an employer failed to comply with a determination, the remedy was for the Minister for Labour to apply to the Circuit Court for an order that the employer make the appropriate redress to the employee. An express right to make such an application has since been conferred upon an employee by the Unfair Dismissals (Amendment) Act 1993.
Secondly, there had been a statutory right of appeal from a decision of the Employment Appeals Tribunal to the Circuit Court. This appeal took the form of a rehearing, on oral evidence. Indeed, it appears that there was then a further right of appeal to the High Court in accordance with the Courts of Justice Act 1936. See JVC Europe Ltd v. Panisi [2011] IEHC 279.
Thirdly, the UDA 1977 had preserved the right of an employee to recover damages at common law for wrongful dismissal (section 15). An employee was, however, required to elect between the remedies: the initiation of one form of claim operated to exclude the other. Once an employee gave notice in writing of a claim under the UDA 1977, they were not thereafter entitled to recover damages at common law for wrongful dismissal. Similarly, once proceedings for damages at common law for wrongful dismissal had been initiated by or on behalf of an employee, the employee was not thereafter entitled to redress under the UDA 1977.
The forms of redress available under the UDA 1977 (as amended by the Workplace Relations Act 2015) are as follows.
(a) re-instatement by the employer of the employee in the position whichhe held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the positionwhich he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) if the employee incurred any financial loss attributable to thedismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or
(ii ) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.
Unfair Dismissals (Amendment) Act 1993
The procedural aspects of the UDA 1977 identified above had been subject to minor modifications by the Unfair Dismissals (Amendment) Act 1993. First, and as already noted, the right to apply to enforce a determination of the Employment Appeals Tribunal has been extended to an employee.
Secondly, the manner in which parallel claims for (i) wrongful dismissal, and (ii) unfair dismissal are regulated had also been amended. Parallel claims could be pursued until such time as the hearing before either the Employment Appeals Tribunal or the court had commenced. Once a hearing had commenced, the employee was, in effect, confined to that remedy, and was not entitled to a remedy in the parallel proceedings. More specifically, the employee, having elected for the other remedy, could not thereafter recover damages at common law for wrongful dismissal or redress under the UDA 1977, as the case may be.
Workplace Relations Act 2015
The Workplace Relations Act 2015 has made a number of significant amendments to the statutory scheme under the UDA 1977. First, the jurisdiction previously exercised by the rights commissioners and the Employment Appeals Tribunal has now been transferred, in effect, to the adjudication officers and the Labour Court. Secondly, the right of appeal to the Circuit Court has been removed. There is a right of appeal against a decision of the Labour Court to the High Court on a point of law, and the decision of the High Court in relation thereto shall be final and conclusive. (This is subject to the possibility of petitioning the Supreme Court for leave to appeal: Pepper Finance Corporation v. Cannon [2020] IESC 2).
Thirdly, the interaction between a claim for unfair dismissal and a claim for wrongful dismissal has been modified. There is now a slight disconnect between the two remedies, in that the cut-off events are different, namely the making of a decision in one instance, and the commencement of the hearing in the other. More specifically, a claimantemployee is precluded from pursuing a claim for wrongful dismissal once a decision has been made by an adjudication officer in respect of a claim for redress under the UDA 1977. A claimant-employee is precluded from pursuing a claim for unfair dismissal once a hearing by a court of proceedings for damages at common law for wrongful dismissal has commenced.
Finally, the procedure for the enforcement of the decision is now by way of an application to the District Court. This procedure is discussed in more detail at paragraph 74 below.
OVERVIEW OF THE PAYMENT OF WAGES ACT 1991
The essence of the Applicant’s claim under the Payment of Wages Act 1991 is that the employer is now required to pay a sum in lieu of the appropriate prior notice of the termination of employment. (The employer had purported to dismiss the Applicant summarily). Any sum recoverable will be modest in circumstances where the Applicant’s weekly wages were in the order of four hundred euros.
As originally enacted, the Payment of Wages Act 1991 provided for the making of a complaint to a rights commissioner, with a right of appeal thereafter to the Employment Appeals Tribunal.
The procedure for determining complaints under the Payment of Wages Act 1991 is now governed by the WRA 2015. This has been achieved by the making of amendments to the Payment of Wages Act 1991 itself, so as to transfer the substantive jurisdiction to adjudication officers, and then applying the relevant procedures under Part 4 of the WRA 2015. Thus, a claim is now made in the first instance to an adjudication officer, with a right of appeal thereafter to the Labour Court.
Finally, it should be noted that under the Payment of Wages Act 1991, as originally enacted, a decision of a rights commissioner or a determination of the Employment Appeal Tribunal could be enforced as if it were an order of the Circuit Court made in civil proceedings. Put shortly, a decision or determination could be enforced directly as if it was a court order. By contrast, a decision of an adjudication officer or the Labour Court has a lesser status under the WRA 2015. Such a decision cannot be enforced directly. Rather, it is necessary to apply to the District Court for an order directing the employer to carry out the decision in accordance with its terms. As discussed presently, the requirement for an application to the District Court is relied upon by the State respondents in support of their argument that decision-making under the WRA 2015 does not involve the administration of justice.
OVERVIEW OF THE WORKPLACE RELATIONS ACT 2015
The relevant provisions of the WRA 2015 will be addressed in detail, in context, as part of the discussion of each of the specific complaints made by the Applicant. For the present, it is proposed simply to provide an overview of the procedure under the Act.
An employee who wishes to advance a claim for, inter alia, unfair dismissal or the payment of wages in lieu of notice is required to present the claim to the Director General of the Workplace Relations Commission. The Director General will then refer the claim for adjudication to an adjudication officer. (In the case of a claim for unfair dismissal, the claim is referred to the adjudication officer pursuant to section 8 of the UDA 1977; in the case of a claim for payment of wages in lieu of notice, the referral is made pursuant to section 41 of the WRA 2015).
The adjudication officers are appointed by the Minister for Jobs, Enterprise and Innovation pursuant to section 40 of the WRA 2015. There are no formal qualifications prescribed for adjudication officers under the Act. However, in the case of new appointments, section 40(2) of the WRA 2015 provides that a person shall not be appointed to be an adjudication officer unless that person has been selected for the purpose of his or her being the subject of such an appointment following a competition conducted for that purpose. The State respondents have explained on affidavit that in practice this is achieved as follows. See first affidavit of Tara Coogan sworn on 19 July 2019.
“36. With the exception of those persons who were previously appointed as Rights Commissioners or Equality Officers, Adjudication Officers are appointed through an open and transparent system managed by the Public Appointments Service. In order to be considered for appointment, candidates are requested to demonstrate significant relevant experience in at least one of the following specialisms: Human Resource Management, Industrial Relations, or Employment Law. In this regard, I beg to refer to a copy of a Candidates Information Booklet prepared by the Public Appointments Service for a recent competition for the appointment of the Adjudicating Officers […]. As a consequence, the WRC is able to draw on a diverse panel of Adjudication Officers who have extensive experience in employment law, equality law, industrial relations and trade disputes. At present persons holding an appointment as an Adjudication Officer include experienced industrial relations and HR practitioners, employment lawyers and civil servants.”
The affidavit goes on to explain that, in advance of taking up an appointment, an Adjudication Officer is required to undertake bespoke training on a range of relevant topics, including relevant legal issues. The training programme is managed in conjunction with the National College of Ireland.
The principal functions of an adjudication officer are set out as follows at section 41(5) of the WRA 2015.
(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—
(i) inquire into the complaint or dispute,
(ii) give the parties to the complaint or dispute an opportunity to—
(I) be heard by the adjudication officer, and
(II) present to the adjudication officer any evidence relevant to the complaint or dispute,
(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and
(iv) give the parties to the complaint or dispute a copy of that decision in writing.
An adjudication officer has a power to compel the attendance of witnesses, but does not have an express power to administer an oath or affirmation.
(Functions and powers in almost identical terms to those above apply to an adjudication officer when adjudicating upon a claim for unfair dismissal. See section 8 of the UDA 1977).
There is a right of appeal against the decision of an adjudication officer to the Labour Court. (Section 44 of the WRA 2015, as applied to a claim for unfair dismissal by section 8A of the UDA 1977). The procedures before the Labour Court are more formal in that the court can taken oath on evidence. (See section 21 of the Industrial Relations Act 1946 (as amended)). Proceedings before the Labour Court shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public (section 44(7) of the WRA 2015).
The Labour Court may refer a question of law arising in proceedings before it to the High Court for determination by the High Court (section 44(6) of the WRA 2015).
Finally, it is necessary to refer to the procedures governing the enforcement of a decision of an adjudication officer or the Labour Court. These decisions are not self-executing. Rather, if the employee wishes to enforce the decision, it is necessary to make an application to the District Court for an enforcement order. Section 43 of the WRA 2015 provides as follows.
43.(1) If an employer in proceedings in relation to a complaint or dispute referred to an adjudication officer under section 41 fails to carry out the decision of the adjudication officer under that section in relation to the complaint or dispute in accordance with its terms before the expiration of 56 days from the date on which the notice in writing of the decision was given to the parties, the District Court shall—
(a) on application to it in that behalf by the employee concerned or the Commission, or
(b) on application to it in that behalf, with the consent of the employee, by any trade union or excepted body of which the employee is a member,
without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms.
(2) Upon the hearing of an application under this section in relation to a decision of an adjudication officer requiring an employer to reinstate or reengage an employee, the District Court may, instead of making an order directing the employer to carry out the decision in accordance with its terms, make an order directing the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Act of 1977.
[…]
(4) The District Court may, in an order under this section, if in all the circumstances it considers it appropriate to do so, where the order relates to the payment of compensation, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Act of 1981, in respect of the whole or any part of the period beginning 42 days after the date on which the decision of the adjudication officer is given to the parties and ending on the date of the order.
(Section 43 of the WRA 2015 is applied to a decision of an adjudication officer on aclaim for unfair dismissal by section 8A of the UDA 1977).
An equivalent provision applies to decisions of the Labour Court under section 45 of the WRA 2015.
As appears, the District Court may make an order directing the employer to pay compensation to the employee in lieu of re-instatement or re-engagement. The District Court also has power to direct an employer to pay statutory interest on the compensation, which is a power not enjoyed by an adjudication officer or the Labour Court.
It is a criminal offence not to comply with an order of the District Court. See section 51 of the WRA 2015, as follows.
51.( 1) It shall be an offence for a person to fail to comply with an order under section 43 or 45 directing an employer to pay compensation to an employee.
(2) It shall be a defence to proceedings for an offence under this section for the defendant to prove on the balance of probabilities that he or she was unable to comply with the order due to his or her financial circumstances.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.
Crucially, it is not an offence for an employer to fail to comply with the decision of an adjudication officer or the Labour Court: the offence is the failure to comply with theorder of the District Court.
PART II
ADMINISTRATION OF JUSTICE
Article 34.1 of the Constitution provides as follows.
1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
The principal issued to be addressed in this judgment is whether an adjudication of a claim for unfair dismissal and for the payment of wages in lieu of notice involves the administration of justice. It may be useful to identify, from the outset, what issues are not in dispute between the parties. The parties are agreed that the correct starting point for the analysis of whether an adjudication involves the administration of justice should be the five-point test propounded by the High Court (Kenny J.) in McDonald v. Bord na gCon [1965] I.R. 217. (The Supreme Court, on appeal, approved of the formulation of this test, but overturned the High Court on the application of the test to the particular facts of the case). This test has recently been applied by the Supreme Court in O’Connell v. The Turf Club [2015] IESC 57; [2017] 2 IR 43.
The five characteristic features are enumerated as follows.
“It seems to me that the administration of justice has these characteristic features:
1, A dispute or controversy as to the existence of legal rights or a violation of the law;
2, The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
3, The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
4, The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;
5, The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.”
It has been accepted on behalf of the State respondents, for the purpose of these proceedings, that the determination of the two relevant claims exhibit the first, second and third of these characteristics. (DAR, Day 5, 12.55). The dispute between the parties centres instead on whether the fourth and fifth characteristics are fulfilled. I address each of these characteristics under separate headings below.
(A). ENFORCEMENT / IMPOSITION OF PENALTY
The ability of a decision-maker to enforce its decisions is one of the essential characteristics of the administration of justice. This has been described as follows in Lynam v. Butler (No. 2) [1933] I.R. 74 (at 99/100).
“[…] In relation to justiciable controversies of the civil class, the Judicial Power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens and the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State. Its characteristic public good in its civil aspect is finality and authority, the decisive ending of disputes and quarrels, and the avoidance of private methods of violence in asserting or resisting claims alleged or denied. It follows from its nature as I have described it that the exercise of the Judicial Power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the Judicial Department of Government have compulsive authority over persons as, for instance, it must have authority to compel appearance of a party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property. So much towards a definition of the term—‘Judicial Power.’”
This characteristic has been formulated as follows in McDonald v. Bord na gCon.
“4, The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;”
As appears, it is not necessary that the decision-maker must be able to enforce itsdecisions itself. Rather, it is consistent with the exercise of judicial power for the decision-maker to call in aid the executive power of the State to enforce its decisions. This is illustrated by reference to the manner in which court orders are given effect to by, for example, An Garda Siochana (an order for attachment and committal) or by the Sheriff or County Registrar (an order for the recovery of the possession of land).
The application of this limb of the test in McDonald v. Bord na gCon can be difficult to apply in practice. Indeed, on the facts of McDonald v. Bord na gCon itself, the High Court and the Supreme Court had been at odds on the question of whether the decision at issue in that case met the test. The decision at issue was the making of an “exclusion order” under section 47 of the Greyhound Industry Act 1958. The effect of an “exclusion order” was to prohibit a person from (a) being on any licensed greyhound race track; (b) being at any authorised coursing meeting; and (c) being at any public sale of greyhounds. The Act purported to authorise any person acting under the direction of the licensee of a greyhound race track to remove an excluded person from the track, and to use such force as may be reasonably necessary for this purpose.
Counsel for the Attorney General had argued that an “exclusion order” has no direct effect, and that its only result is to give the licensee of a greyhound race track an additional remedy which he may exercise should he wish to do so. A person against whom an “exclusion order” has been made may continue to go to greyhound race meetings, but takes the risk of being removed. It had been further argued that an “exclusion order” is not an order of the same nature as an injunction because an injunction is enforced by the executive authority of the State, while an exclusion order can be enforced only by the licensee of a greyhound racing track or those acting under his authority.
The High Court (Kenny J.) held that a body or tribunal which may lawfully execute its orders by physical force or authorise others to do so does not differ from a court. The
Supreme Court overturned this aspect of the High Court judgment, holding that an exclusion order is not directly enforceable. The Supreme Court placed particular emphasis on the fact that the body making the “exclusion order”, namely Bord na gCon or the Irish Coursing Club, would not have the right to obtain an injunction to enforce an “exclusion order” itself. Rather, an application for an injunction could only be made by the licensee of a greyhound racing track or some other authorised person. An “exclusion order” was thus only effectively enforceable at the will of such a person. The fourth of the characteristics identified by the High Court (Kenny J.) had not therefore been met.
A similar approach has been adopted more recently by the Supreme Court in O’Connell v. The Turf Club. O’Donnell J. held at [94] that the decisions of the Turf Club did not satisfy the fourth criteria. O’Donnell J. noted that a decision by the Turf Club to impose financial penalties is not enforceable as a judgment, and that there is no process for converting such a decision into a judgment. The decision cannot be enforced of its own right, and instead the Turf Club must seek to recover any such fine in litigation.
Turning now to apply these principles to the facts of the present case, the legislative history of the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991 indicates that the Oireachtas has deployed a range of legislative devices to give effect to determinations made by statutory bodies in respect of employment disputes. At one end of the range, it is expressly provided that a determination may be enforced as if it were an order of the Circuit Court made in civil proceedings. This is the approach which had been taken under the Payment of Wages Act 1991 as originally enacted. At the other end of the range, it is necessary to apply to the Circuit Court to enforce a determination, and the Circuit Court has full jurisdiction to consider the merits of the underlying claim. This is the approach which had been taken under the Unfair Dismissals Act 1977 as originally enacted. The approach had been amended subsequently under the Unfair Dismissals (Amendment) Act 1993. Under this amended version of the legislation, the Circuit Court’s jurisdiction appears to have been reoriented towards a consideration of the precise form of relief to be granted (as opposed to a reconsideration of the merits of the underlying claim). More specifically, the Circuit Court had discretion to modify the form of redress from that ordered by the Employment Appeals Tribunal, by making an order directing the employer to pay compensation in lieu of re-instating or re-engaging the employee. (This legislative history is discussed in more detail at paragraphs 34 et seq. above).
The approach since taken under the Workplace Relations Act 2015 lies somewhere between these two extremes. Determinations made by an adjudication officer or the Labour Court cannot be directly enforced as if they were court orders made in civil proceedings. Rather, in each instance it is necessary to have recourse to the judicial power to translate those administrative decisions into a court order. This involves the making of an application to the District Court. Crucially, the offence created under section 51 of the WRA 2015 is failure to comply with the District Court order (and not the earlier determination of the adjudication officer or the Labour Court).
The striking feature of the enforcement procedure prescribed under the WRA 2015 is that the application is made on an ex parte basis, i.e. without hearing the employer. The procedure thus falls far short of the full rehearing seemingly envisaged under the Unfair Dismissals Act 1977 as originally enacted.
With some hesitation, I have concluded that the necessity of having to make an application to the District Court to enforce a decision of an adjudication officer or the Labour Court deprives such determinations of one of the essential characteristics of the administration of justice. Whereas the function to be exercised by the District Court is a narrow one, it cannot be dismissed as a mere rubber-stamping of the earlier determination. The District Court’s discretion to modify the form of redress represents a significant curtailment of the decision-making powers of the adjudication officers and the Labour Court. The District Court can, in effect, overrule their decision to direct that the employee be re-instated or re-engaged.
In this regard, it is worth recalling the provisions of section 43 of the WRA 2015, as follows. (The relevant provisions have been set out in full at paragraphs 57 et seq. above).
(2) Upon the hearing of an application under this section in relation to a decision of an adjudication officer requiring an employer to reinstate or reengage an employee, the District Court may, instead of making an order directing the employer to carry out the decision in accordance with its terms, make an order directing the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Act of 1977.
As appears, the District Court may make an order directing the employer to pay compensation to the employee in lieu of re-instatement or re-engagement. The District Court also has power to direct an employer to pay statutory interest on the compensation, which is a power not enjoyed by an adjudication officer or the Labour Court.
A decision-maker who is not only reliant on the parties invoking the judicial power to enforce its decisions, but whose decisions as to the form of relief are then vulnerable to being overruled as part of that process, cannot be said to be carrying out the administration of justice.
The only reason I have expressed any hesitation in reaching this conclusion is because of a concern as to the limitations of the procedure before the District Court. The application to the District Court is made without hearing the employer, and is also made without hearing any evidence (other than evidence in relation to the determination to be enforced). These limitations have the potential to reduce the likelihood of the District Court exercising its discretion to direct the payment of compensation in lieu of reinstatement or re-engagement. This is because the party most likely to want such a change in the form of redress, i.e. the employer, is excluded from the process.
Notwithstanding this concern, I am satisfied, on balance, that determinations made by adjudication officers and the Labour Court do not fulfil the fourth limb of the test in McDonald v. Bord na gCon. The very fact that the District Court can, in effect, overrule the adjudication officer’s or the Labour Court’s decision as to the form of relief is irreconcilable with a finding that the two statutory bodies are carrying out the administration of justice. This is so even though the WRA 2015 appears to envisage that the District Court’s power to direct the payment of compensation in lieu of re-instatement or re-engagement must be exercised by the District Court on its own initiative, and cannot be requested by the employer directly.
(B) . ORDER CHARACTERISTIC OF COURTS
Leading counsel on behalf of the State respondents, Ms Nuala Butler, SC, made an attractive argument that, historically, employment disputes have not been justiciable. Put otherwise, it is said that employment disputes have not traditionally fallen within the purview of the courts.
Counsel commenced her submission by tracing the evolution of employment rights undernational law. Over the past five decades, a large number of statutory provisions have been enacted, all of which gave employees statutory rights enforceable against employers. In the case of dispute, such disputes are to be adjudicated upon through statutory mechanisms provided for under the legislation.
This process is said to have begun with the enactment of the Redundancy Payments Act 1967. Counsel points out that an entitlement to a redundancy payment is entirely statutory in nature. There is no common law right, still less a constitutional right, to such a payment. Crucially, any claims for redundancy payments were to be determined by the adjudicative process provided for under the 1967 Act itself. This had involved a first-instance decision by a “deciding officer”, with a right of appeal thereafter to a Redundancy Appeals Tribunal. The role of the courts was largely confined to an appeal on a point of law to the High Court. (There was also a procedure whereby a reference could be made to the High Court).
Counsel submits that there has been a consistent, long-term legislative policy evident since the enactment of the Redundancy Payments Act 1967. There are two aspects to this policy. First, to enhance the protection afforded to employees, i.e. through the creation of statutory rights; and, secondly, to provide adjudicative mechanisms for the resolution of disputes outside the court structure.
Counsel submits that the enactment of the Workplace Relations Act 2015 was not transformative, in the sense of removing from the courts a jurisdiction which they had been exercising. Rather, the Act brought about a streamlining of multiple adjudication mechanisms which had previously been exercised by a diverse range of statutory decision-makers, including rights commissioners, the Employment Appeals Tribunal (“EAT”), the Equality Tribunal, the Labour Court, and the National Employment Rights Agency (“NERA”).
The WRA 2015 has now consolidated these various strands of decision-making into a single adjudicative machinery. The decision-making process now commences with the decision of an adjudication officer at first instance; there is then a full right of appeal to the Labour Court; and, thereafter, an appeal on a point of law to the High Court.
This streamlining of the decision-making process is said to have resolved a number of practical difficulties that had arisen with the procedures in existence prior to 2015. An employee may have had to make multiple complaints to different decision-makers arising out of what was, in effect, a single employment dispute. In some instances, the complaints would be subject to different time-limits, and, might even be mutually exclusive. The streamlined procedure introduced by the WRA 2015 was thus said to be of benefit to employees.
Turning to the specific claims made in the present case, counsel notes that the remedy for an “unfair dismissal”, created under the Unfair Dismissals Act 1977 (“the UDA 1977”), is entirely statutory in nature, and differs from the common law remedy for breach of a contract of employment. In particular, the burden of proof is reversed in that the UDA 1977 takes as its starting point that a dismissal is “deemed” to be an “unfair dismissal” unless there were substantial grounds justifying the dismissal. The remedies available under the UDA 1977, in particular, re-instatement and re-engagement, are not analogous to common law remedies. An order for the specific performance of a contract of employment is said to remain exceptional. In particular, counsel cites Earley v. Health Service Executive (No. 2) [2017] IECA 207, and Wallace v. Irish Aviation Authority [2012] 2 I.L.R.M. 345, as authority for the proposition that where there has been an actual termination of employment (as opposed to a suspension), it is extremely difficult to obtain specific performance. The shortcomings of the common law are precisely the reason for which the Oireachtas introduced the statutory remedies, i.e. to ensure that appropriate redress was available.
Counsel cites the judgment of the High Court (Charleton J.) in Doherty v. South Dublin County Council (No. 2) [2007] IEHC 4; [2007] 2 IR 696 in support of the proposition that the statutory dispute resolution mechanisms created in the area of employment law are intended to be exclusive. The applicants in Doherty were travellers, and they sought to challenge what they alleged was a failure on the part of the local housing authority to provide them with suitable accommodation. Part of their claim sought to invoke the equal status legislation. A preliminary issue arose as to whether the court had jurisdiction to grant declaratory relief under the equal status legislation. More specifically, the respondents had argued that, in adjudicating upon the application for judicial review, the High Court was not entitled to have any regard to the provisions of the Equal Status Act 2000 and the Equality Act 2004. The rights and obligations therein created, it had been argued, belong only within the scheme created by those Acts and administered within the mechanisms set up by them.
The High Court held that the equality legislation had created its own legislative and administrative scheme, with only limited right of access to the courts. See paragraph [16] of the judgment as follows.
“[…] Here, a specific legal obligation is created for the first time by statute, a mode of enforcement is set up through an agency which was thereby created and limited rights of access to the courts are created. In my judgment this amounts to the creation of a separate legislative and administrative scheme which does not create a series of private rights which are either enforceable in damages, or outside the context of that scheme.”
The rationale for this conclusion is set out, in particular, at paragraphs [12] and [14] of the judgment as follows.
“12. In my judgment, the Equal Status Acts 2000 to 2004 do not create new legal norms which are justiciable outside the framework of compliance established by those Acts. Prior to the Local Government (Planning and Development) Act 1963 one could lawfully turn one’s house from being a family home into a block of apartments. Subject to tort laws relating to nuisance, one could establish a factory or workshop in one’s back garden. Many activities which involved the development of land would also have required one to obtain a licence, for instance to run a slaughter house, but these were incidental to one’s general right to develop one’s property as one wished. Prior to the Unfair Dismissals Act 1977, the only right that an employee would have in respect of his or her employer was for a period of notice to be given of dismissal, as specified in the contract of employment, or such as were implied by law where the contract was silent. There was no recognition that an employee had a right to work or had any quasi-proprietary interest in their job; see Redmond, Dismissal Law in Ireland (Butterworths, Dublin, 1999) at para. 3-27. The Unfair Dismissals Act 1977 established such rights and, like theEqual Status Acts 2000 to 2004, set them up within a framework providing for a specific tribunal enforcing new legal norms and with particular rights of appeal to specified courts in particular circumstances. The difference between the unfair dismissals legislation and the Equal Status Acts 2000 to 2004 is that under the Unfair Dismissals Act 1977, a person must opt to choose between a claim for wrongful dismissal pursuant to his employment contract, or for unfair dismissal under the Act. Wrongful dismissal would involve litigation in the ordinary courts, which historically have dealt with all the questions related to contract, whereas by claiming unfair dismissal one would come under the special tribunal established by that Act.”
As appears, Charleton J. expressly cites the example of a claim for “unfair dismissal” under the UDA 1977 as part of his analysis of the interaction between statutory tribunals and the courts.
Having cited the judgment of the Supreme Court in Tormey v. Ireland [1985] I.R. 289, Charleton J. continued as follows (at paragraph [14] of his judgment).
“14. Earlier, Henchy J. referred to the wording of Article 34.3.1 as giving jurisdiction to the High Court to determine ‘all matters and questions’ as being required to be read ‘all justiciable matters and questions’. Many of the rights and obligations created by modern statute were never justiciable until they were created by the passage of legislation. Some legislation consolidates existing rights in a code form while others interfered with the general freedom of contract by establishing, for instance, that particular terms of contracts in particular circumstances may be unfair. These Acts tag onto the existing law, by way of amendment or tidying up, and divert the law in a particular direction. Such legislation contemplates that the courts are to be used for the settling of controversies. Where, however, an Act creates an entirely new legal norm and provides for a new mechanism for enforcement under its provisions, its purpose is not to oust the jurisdiction of the High Court but, instead, to establish new means for the disposal of controversies connected with those legal norms. In such an instance, administrative norms, and not judicial ones are set: the means of disposal is also administrative and not within the judicial sphere unless it is invoked under the legislative scheme. In the case of the Planning Acts, in employment rights matters and, I would hold, under the Equal Status Acts 2000 to 2004, these new legal norms and a new means of disposal through tribunal are created. This expressly bypasses the courts in dealing with these matters. The High Court retains its supervisory jurisdiction to ensure that hearings take place within jurisdiction, operate under constitutional standards of fairness and enjoy outcomes that do not fly in the face of fundamental reason and common sense. In some instances, the High Court has declined jurisdiction on the basis that a forum established by law, over which it exercises supervisory jurisdiction, as above, is a more appropriate forum. In Deighan v. Hearne [1986] I.R. 603 at p. 615, Murphy J. declined to engage in a tax assessment of the plaintiff in favour of the administrative tribunal established in this regard. He felt the jurisdiction of the High Court would only come into play in the most exceptional circumstances because legislation provided a constitutional procedure ‘competently staffed and efficiently operated to carry out that unpopular but very necessary task’. In my judgment it is no function of the High Court, at first instance, to adjudicate on planning matters, to assess income tax, to decide on unfair dismissal or to decide whether there has been unequal treatment.”*
*Emphasis (italics) added.
Counsel in the case before me characterised the judgment in Doherty as finding that the High Court did not have jurisdiction to grant declaratory relief because the right to equal treatment, provided for under the Equal Status Acts, was entirely a creature of statute. A right to equal treatment was not something which had had a prior existence under the common law. Rather the Equal Status Acts had created that right, and, crucially, had also put in place adjudicative mechanisms to resolve claims of discrimination. As of the date of the High Court judgment in Doherty in January 2007, the procedure prescribed for seeking redress for alleged discrimination involved the making of a complaint to the Director of the Equality Tribunal (with a full right of appeal thereafter to the Circuit Court). The applicants in Doherty were not entitled to by-pass the prescribed procedures, by seeking to invoke the full original jurisdiction of the High Court in preference to bringing a complaint before the Director of the Equality Tribunal.
(It is to be noted that even now, subsequent to the amendments introduced to the procedures under the Equal Status Acts by the Workplace Relations Act 2015, there continues to be a full right of appeal to the Circuit Court in respect of a claim of discrimination).
Counsel submits that the principles identified in Doherty are directly applicable to a claimfor unfair dismissal and for the payment of wages in lieu of notice. Such claims seek to assert statutorily created rights, and are subject to the adjudicative mechanisms expressly provided for under the legislation. There has been no transference of jurisdiction from the courts.
Counsel also relies on two judgments, each delivered in the context of a ruling on an interlocutory injunction application in an employment law context, namely Maha Lingam v. Health Service Executive [2005] IESC 89; [2006] 17 E.L.R. 137, and O’Domhnaill v. Health Service Executive [2011] IEHC 421. These judgments are said to confirm, albeit not on the basis of a full hearing, that where employment legislation provides its own statutory scheme of enforcement, it is not intended to confer independent rights at common law or to modify in general the terms of contracts of employment to be enforced by the common law courts.
In response, leading counsel on behalf of the Applicant, Mr Peter Ward, SC, challenges the State’s characterisation of his client’s claims for unfair dismissal, and for the payment of wages in lieu of notice, as “industrial relations” disputes which fall outside the purview of the courts. The notion of “industrial relations” is said to be an “outdated concept” in this context. Collective bargaining and union membership are no longer the main source of protection for employees. Instead, employees are protected by the conferment of statutory rights. An allegation that there has been a breach of these statutory rights is justiciable: it requires a legal adjudication by a court of law.
The hearing and determination of employment disputes, and the making of orders thereon, is something which is characteristic of the business of the courts. This is evident from the fact that for almost forty years prior to the enactment of the WRA 2015, the Circuit Court had heard and determined claims under the UDA 1977, whether by way of a full appeal or by way of an application to enforce a determination of the Employment Appeals Tribunal. The WRA 2015 is said to have carved the Circuit Court out of the process.
Even prior to the UDA 1977, the courts had heard and determined contractual disputes arising out of contracts of employment. Indeed, this continues to be the position today. The courts’ jurisdiction in this regard is acknowledged by section 15 of the UDA 1977, which recognises the right of a person to recover damages at common law for wrongful dismissal. Counsel observes that both parties accept that employment legislation generally operates by implying statutory terms into contracts of employment, thus emphasising the contractual nature of the relationship. Counsel refutes the suggestion that an order for specific performance would not normally be granted in respect of a contract of employment, and that the statutory remedies of re-instatement or reengagement thus have no equivalent at common law.
Counsel helpfully took me through the relevant case law on the so-called “Johnson exclusion area”, named for the judgment in Johnson v. Unisys [2001] UKHL 13; [2003] 1 AC 518. (I will return to discuss this further at paragraphs 132 et seq. below).
Finally, counsel submits that the fifth limb of the test in McDonald v. Bord na gCon cannot have been intended to “freeze”, at a particular point in time, the categories of decision-making which comprises the administration of justice. To hold otherwise would have the consequence that the adjudication upon any new legal norm would never comprise the administration of justice. This could result in an entire set of rights being impermissibly put beyond the reach of the courts.
Properly understood, the fifth limb looks to whether the decision at issue is one which is characteristic of a court, in the sense of being similar to the type of orders which a court makes, rather than asking whether this specific type of order is one which the courts have made historically.
Findings of the court
It is important to recall the precise issue which falls for determination under this heading. The State respondents seek to refute the argument that the adjudication upon a claim for unfair dismissal, or upon a claim for the payment of wages in lieu of notice, involves an administration of justice, by saying that the fifth characteristic identified in McDonald v. Bord na gCon is not fulfilled. The fifth characteristic is as follows.
“5, The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.”
This limb of the test requires consideration of whether the claims for redress which the Applicant has made arising out of his dismissal are of a type which historically or traditionally have been determined by a court. This is a different question from that which has been considered in the case law, such as Doherty v. South Dublin County Council, relied upon by the State respondents. In those cases, what had been at issue was whether, as a matter of statutory interpretation, the relevant legislation had the effect of creating an exclusive dispute resolution mechanism, with only very limited recourse to the courts. I will return to this distinction in more detail presently (at paragraph 117 et seq. below).
The necessary starting point for an analysis of the argument is to consider how the fifth characteristic has been interpreted in the case law. Two examples of cases where the historical jurisdiction of the courts had been an important consideration in concluding that the decision-making at issue represented the administration of justice are as follows.
First, in In re Solicitors Act, 1954 [1960] I.R. 239, emphasis was placed on the fact that the power to strike a solicitor’s name from the Roll of Solicitors had traditionally been exercised by the Chief Justice. The Solicitors Act 1954 had purported to confer this function instead on a newly established Disciplinary Committee.
The second example is provided by the judgment of the High Court in Cowan v. Attorney General [1961] I.R. 411. There, the High Court, in concluding that the exercise of powers by the commissioner of an electoral court represented the administration of justice, had regard to the fact that, historically, the jurisdiction to deal with election petitions in municipal elections lay exclusively in the High Court. This jurisdiction was expressly taken away from the High Court by the legislation being challenged in the proceedings, namely the Municipal Corporations Act 1882, and the Municipal Elections (Corrupt and Illegal Practices) Act 1884 (as subsequently applied to Ireland).
Examples of cases falling on the other side of the line, i.e. where a particular decisionmaking function had traditionally been carried out by a non-judicial body, include the following. The first example is provided by Keady v. Commissioner of An Garda Siochaiia [1992] 2 I.R. 197. There, the fact that discipline over An Garda Siochana had traditionally been exercised by the Commissioner appears to have informed the conclusion that the dismissal of a member from the force did not involve the administration of justice. Having referred to the judgment in In re Solicitors Act, 1954, O’Flaherty J. then stated as follows (at page 211).
“It seems clear, therefore, that the case of solicitors must be regarded as exceptional and, perhaps, anomalous and owes a great deal to the historic fact that judges always were responsible for the decision to strike solicitors off the roll.
In contrast, the Garda Siochana is a force which consists of members each of whom on appointment undertakes the duty of preserving the peace and preventing crime. The members comprise a disciplined force who are subject to the authority of the Commissioner in whom the general direction and control of the force is vested […].”
The second example is provided by the more recent judgment of the Supreme Court in O’Connell v. The Turf Club [2015] IESC 57; [2017] 2 IR 43. In concluding that the disciplining of a jockey and a trainer by the Turf Club did not amount to an impermissible administration of justice, the Supreme Court had regard to the historical role of the Turf Club. The matter is put as follows by O’Donnell J. at paragraph [94].
“[…] Furthermore, the making of such disciplinary orders up to and including the warning of a person from a racecourse, have not only not been characteristic of the courts as a matter of history, they have as a matter of history been the exclusive function of a body such as the respondent.”
It seems from this case law that the fifth characteristic in McDonald v. Bord na gCon will only assume importance in a small category of cases where there is a long established tradition of a particular type of decision-making either falling within or outwith the courts’ jurisdiction. It must be doubtful whether it was intended to have the consequence that disputes in respect of any newly created statutory right can be put beyond the courts’ reach by the Oireachtas without infringing Article 34.1. It is, happily, not necessary to resolve this difficult question for the purposes of disposing of the proceedings before me. This is because the determination of claims for unfair dismissal is something which has been characteristic of the business of the courts for almost forty years. More specifically, the UDA 1977 conferred jurisdiction on the Circuit Court to determine the merits of a claim for unfair dismissal. The matter could come before the Circuit Court either by way of an appeal from the Employment Appeals Tribunal, or by way of an application to enforce a determination made by the Employment Appeals Tribunal. Crucially, in each instance, the Circuit Court had full jurisdiction to hear and determine the underlying merits of the dispute. This jurisdiction has now been taken away by the Workplace Relations Act 2015.
It is correct, of course, to say that the Circuit Court’s jurisdiction only arose subsequent to a first-instance determination of the Employment Appeals Tribunal. The fact that a court of law is only involved at second-instance might well be relevant in the context of an argument as to whether the decision-making process, when examined in its entirety, might be compliant with Article 34.1 of the Constitution. (This is discussed further at paragraph 122 et seq. below). The timing of the involvement of the Circuit Court is, however, largely irrelevant to the separate question of whether the fifth of the McDonald v. Bord na gCon criteria has been fulfilled. The argument advanced by the State respondents is to the effect that the determination of what they characterise as “industrial relations” disputes is not something with which the courts have traditionally been involved. This argument is undone by the legislative history of the UDA 1977. It is irrefutable that, as a matter of fact, the Circuit Court had heard and determined claims for unfair dismissal on their merits for a period of almost forty years, i.e. since the commencement of the UDA 1977 in May 1977 until the commencement of the WRA 2015. Put shortly, such claims had been treated as justiciable as a matter of history.
Moreover, and in any event, disputes arising out of the termination of employment have always, in principle, been capable of being litigated before the courts. It is open to an employee to bring a claim for wrongful dismissal based on a breach of his or her contract of employment. This is expressly recognised under the UDA 1977. Whereas it may well be that in most instances the rights of an employee under the contract would be limited, there continues to be circumstances where certain senior employees will have been afforded very generous rights under their contract of employment. For this reason, such employees may well elect to pursue a claim for breach of contract before the courts. There is no question but that such disputes are justiciable.
It may be that certain other statutory rights in the employment sphere are novel and have no equivalent under the common law, e.g. a right to equal pay. However, as the State respondents have correctly pointed out as part of their submissions on locus standi, these proceedings must be determined by reference to the claims actually advanced by the Applicant, namely the claims for unfair dismissal and for the payment of wages in lieu of notice. (See paragraph 27 et seq. above). Both parties accept that employment legislation generally operates by implying statutory terms into contracts of employment, thus emphasising the contractual nature of the relationship. Against this background, whereas it is correct to say that the claims made by the Applicant are statutory in nature, the issues which fall for adjudication are not dissimilar to those which would arise in proceedings for breach of contract.
The State respondents have placed great emphasis on the judgment of the High Court (Charleton J.) in Doherty v. South Dublin County Council. The judgment is cited as authority for the proposition that where a person seeks to assert statutorily created rights, they are subject to the adjudicative mechanisms expressly provided for under the relevant legislation. In the case of a claim for unfair dismissal and for the payment of wages in lieu of notice, a claim for redress has always been initiated outside the court system. Originally, such claims were made to a rights commissioner or the Employment Appeals Tribunal; since the enactment of the WRA 2015, a claim must now be presented to the Director General of the Workplace Relations Commission, who will refer it onwards to an adjudication officer for adjudication.
With respect, the submissions tend to overlook the fact that the judgment in Doherty v. South Dublin County Council is addressed to a different issue. The issue in that case had been whether an applicant could by-pass the statutory procedures prescribed under the Equal Status Acts by invoking the High Court’s original jurisdiction. Charleton J. held that the equal status legislation had created its own legislative and administrative scheme, with only limited rights of access to the courts. One consequence of this is that it is not the function of the High Court, at first instance, to decide whether there has been unequal treatment. Charleton J. emphasised that the purpose of creating a new mechanism for the enforcement of the statutory rights under the Equal Status Acts was not to oust the jurisdiction of the High Court. The High Court retains its supervisory jurisdiction to ensure that hearings take place within jurisdiction, operate under constitutional standards of fairness, and enjoy outcomes that do not fly in the face of fundamental reason and common sense. ([2007] 2 IR 696 (at 706)).
The judgment in Doherty v. South Dublin County Council is concerned primarily with identifying the limits of the jurisdiction of the High Court under the Equal Status Acts. The judgment is not authority for the proposition that a claim for redress for discrimination in breach of the right to equal treatment is not justiciable before any court. The Equal Status Acts provide for a full right of appeal to the Circuit Court in respect of a claim of discrimination. This continues to be the position even after the amendments introduced to the Equal Status Acts by the Workplace Relations Act 2015. The business of the Circuit Court thus includes the hearing and determination of claims of discrimination. Put otherwise, these matters are justiciable.
As of the date of the judgment in Doherty in January 2007, the same logic had applied to claims for unfair dismissal. It is only since the enactment of the WRA 2015 that the Circuit Court’s jurisdiction to hear and determine such claims has been abolished.
In conclusion, therefore, the hearing and determination of a claim for unfair dismissal and for the payment of wages in lieu of notice fulfil the fifth limb of the test in McDonald v. Bord na gCon. The making of orders determining such claims is characteristic of the business of the courts as carried out pursuant to the UDA 1977 (prior to its amendment under the WRA 2015); and, more generally, is characteristic of the type of orders made pursuant to the courts’ common law jurisdiction in respect of claims for wrongful dismissal.
RELEVANCE, IF ANY, OF ACCESS TO COURT OF LAW
The Unfair Dismissals Act 1977, as originally enacted, had allowed for access to the courts by two routes. First, the right of a person to recover damages at common law for wrongful dismissal had been expressly preserved. An employee was, however, required to elect between the remedies: the initiation of one form of claim operated to exclude the other.
Secondly, there was a right of appeal against a decision of the Employment Appeals Tribunal to the Circuit Court. The appeal had been by way of rehearing, on oral evidence. This latter route has been closed off by the WRA 2015, and recourse may now only be had to the courts by way of an appeal on a point of law to the High Court.
One issue which does not appear to have been fully teased out in the existing case law is the relevance, if any, of the existence of a right of access to a court of law. More specifically, in assessing whether a decision-maker is carrying out the administration of justice, should any weight be attached to either (i) the existence of a right of appeal against the decision to a court of law, or (ii) the existence of a parallel right of access to the courts. Put otherwise, does it make any difference that a scheme of statutory decisionmaking is not exclusive and does not oust the right of access to the courts.
The orthodox position appears to be that set out by the Supreme Court in Re Solicitors Act, 1954 [1960] I.R. 239 (at 275). Kingsmill Moore J. held that the existence of an appeal to the courts cannot restore constitutionality to a tribunal whose decisions, if unappealed, amount to an administration of justice.
“It seems to the Court that the power to strike a solicitor off the roll is, when exercised, an administration of justice, both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial power of the State and because to entrust such a power to persons other than judges is to interfere with the necessities of the proper administration of justice.
It is urged that the existence of an appeal to the Chief Justice is sufficient to answer these objections. The Chief Justice in his judgment took the view that, notwithstanding his own opinion as to the merits, he was not at liberty to act as if he were engaged on an untrammelled re-hearing and he must not interfere with the decisions of the Committee unless he was clear that the decision was wrong, nor interfere with the punishment unless he was convinced that it was out of proportion to the misconduct. If this view be correct the appeal is but an indifferent protection, but, even if it be not correct, the existence of an appeal to the Courts cannot restore constitutionality to a tribunal whose decisions, if unappealed, amount to an administration of justice.”*
*Emphasis (italics) added.
It appears that a more pragmatic approach had been adopted in Lynham v. Butler (No. 2) [1933] I.R. 74. The judgment concerned the status of the lay commissioners of the Land Commission. The decision of the lay commissioners in respect of an objection to inclusion of particular lands on the list of lands to be acquired was subject to appeal to the Judicial Commissioner. Under the then legislation, the Judicial Commissioner was a nominated High Court judge.
“The Land Commissioners (other than the Judicial Commissioner) are, then, an administrative body of civil servants who are not Judges within the meaning of the Constitution and do not constitute a Court of Justice strictly so-called but who, in the performance of some of their duties, must act judicially and who are always subject, in respect of any justiciable controversy arising in the course of their business, to the exercise of the Judicial Power of the State for the determination of such controversy by one of the Judges of the High Court of the State assigned to act as Judicial Commissioner for the purpose.”
The judgment emphasises that the objectives of the Land Commission involved, of necessity, administrative work on an immense scale, including administrative decisions and rulings from day to day quite outside the functions and beyond the capacity of a small judiciary if required to rule upon them individually.
Properly analysed, Lynham v. Butler appears to be concerned with the division between administrative and judicial functions. It seems to be suggested that the functions of the lay commissioners would only become justiciable in certain circumstances. This appears to be quite different from what is intended under the Workplace Relations Act 2015, where all issues in dispute fall to be determined by an adjudication officer and the Labour Court.
It is not, strictly speaking, necessary to resolve the question of whether the existence of a full right of appeal to a court of law might negate what would otherwise be a finding that a decision-maker of first instance had been carrying out the administration of justice. This is because, as a result of the changes wrought by the Workplace Relations Act 2015, there is no longer a full right of appeal to the Circuit Court. The only right of appeal now allowed is confined to an appeal to the High Court on a point of law. I simply observe that it is, perhaps, anomalous that the requirement for the intervention of the District Court, albeit on a limited basis, to enforce a determination of the Labour Court is sufficient to deprive such a determination of one of the characteristics of the administration of justice, yet the existence of a full right of appeal against the determination to the Circuit Court on the merits would not. Of course, the explanation for this distinction may be that recourse to the judicial power is always necessary to obtain an enforcement order, whereas unless the appellate jurisdiction is invoked, a first-instance decision becomes final and conclusive.
The related question of whether the preservation of a right of access to the courts to pursue a parallel action negates what would otherwise be a finding that a decision-maker had been carrying out the administration of justice is more immediately relevant. It has certainly been a feature of other schemes for statutory compensation that the underlying legislation expressly provides that the scheme is an alternative to legal proceedings, and does not displace a right of action. It is only if a claimant chooses to pursue the statutory route that they will then be precluded from pursuing legal proceedings thereafter. See, for example, the CervicalCheck Tribunal Act 2019 (sections 13 and 28).
It might be argued that a statutory scheme for compensation, which sits in parallel with a right of action before the courts, does not involve the administration of justice. There is no compulsion to have recourse to the statutory scheme, and a claimant could instead insist on their right of access to the courts. It might be said that coercive jurisdiction is one of the characteristics of the administration of justice.
I turn now to consider the possible application of these (tentative) propositions to the Unfair Dismissals Act 1977 (as amended by the WRA 2015). The UDA 1977 does not oust the jurisdiction of the courts to entertain claims arising out of the termination of employment. Rather, the statutory right to make a claim for unfair dismissal sits in parallel with the common law right of action for wrongful dismissal. (As explained at paragraph 42 above, a claimant must ultimately elect between the two remedies). In principle, therefore, it could be argued that the adjudication officers and the Labour Court are exercising a consensual jurisdiction only, and that parties retain a full right of access to the courts. The difficulty with this line of argument is, however, that the very existence of the parallel jurisdiction under the UDA 1977 has had an inhibiting effect on the development of the common law. Put otherwise, the existence of the parallel jurisdiction is not a neutral factor, but it has actually diminished the potential of the courts’ jurisdiction.
This phenomenon is sometimes referred to as the “Johnson exclusion area”, named for the judgment in Johnson v. Unisys [2001] UKHL 13; [2003] 1 AC 518. In that case, the judicial committee of the House of Lords had declined to develop the common law to give a parallel remedy to that provided for under the Employment Rights Act 1996. It held that for the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament that there should be such a remedy, but that it should be limited in application and extent.
“The remedy adopted by Parliament was not to build upon the common law by creating a statutory implied term that the power of dismissal should be exercised fairly or in good faith, leaving the courts to give a remedy on general principles of contractual damages. Instead, it set up an entirely new system outside the ordinary courts, with tribunals staffed by a majority of lay members, applying new statutory concepts and offering statutory remedies.”
The specific concern in Johnson had been that the claim for compensation for distress, humiliation, damage to reputation in the community or to family life being advanced was far in excess of the statutory limit of STG£11,000. The House of Lords was not prepared to develop the common law to give a parallel remedy which was not subject to any such monetary limit.
The decisions in Johnson, and in Eastwood v. Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503, were applied by the High Court (Laffoy J.) in Nolan v. Emo Oil Services Ltd. [2009] 20 E.L.R. 122.
“[…] There may be situations in which, on the reasoning of Lord Nicholls in [Eastwood v. Magnox Electric plc], a dismissed employee is entitled to maintain an action at common law, for example, where he has suffered financial loss from psychiatric or other illness as a result of pre-dismissal unfair treatment which would give rise to an action for damages. That scenario was signposted by Lord Steyn in the Johnson case and recognised in the Eastwood case. The plaintiff’s situation here is entirely different. In effect, he is inviting the court to develop its common law jurisdiction by reference to the statutory concepts of redundancy and unfair dismissal. Specifically, the court was invited by counsel for the plaintiff to have regard to the statutory definition of ‘redundancy’ in s.7 of the Redundancy Payments Act 1967, as amended. The Oireachtas in enacting the Unfair Dismissal Acts 1977 to 2007 and in introducing the concept of unfair dismissal provided for specific remedies for unfair dismissal and specific procedures for obtaining such remedies in specific forums, before a Rights Commissioner or the Employment Appeals Tribunal. For the courts to expand its common law jurisdiction in parallel to the statutory code in relation to unfair dismissal and redundancy would, to adopt Lord Nicholls’s terminology, end up supplanting part of the code.”
In summary, therefore, it seems that the existence of the parallel jurisdiction under employment legislation such as, relevantly, the UDA 1977, has had an inhibiting effect on the development of the common law. It seems that the so-called “Johnson exclusion area” has been extended, and it precludes the bringing before the courts of any employment disputes which seek to expand the common law in areas covered by statutory rights. (This is so even if the amounts sought to be recovered in such actions fall within the monetary limits applicable to the statutory scheme). It would seem to follow that, even if the preservation of a parallel right of action before the courts might, in principle, be an answer to an allegation that a statutory decision-maker—such as, for example, the CervicalCheck Tribunal—is carrying out the administration of justice, this could not apply to employment legislation.
ARTICLE 37 OF THE CONSTITUTION
In light of the finding that the determination of a claim for unfair dismissal and for the payment of wages in lieu of notice does not involve the administration of justice within the meaning of Article 34 of the Constitution, it is unnecessary to consider the arguments under Article 37. Those arguments had been advanced in the alternative only. By definition, decision-making which does not involve the administration of justice does not need to rely on the exception for the exercise of limited functions and powers of a judicial nature provided for under Article 37 of the Constitution.
PART III
ALLEGED BREACH OF ARTICLE 40.3 OF CONSTITUTION
The Applicant makes a series of arguments in the alternative. More specifically, it is submitted that, even if the High Court were to resolve the issues under Article 34 and 37 against the Applicant, there are separate grounds for saying that the procedures under the WRA 2015 are invalid as being in violation of the Applicant’s rights under Article 40.3 of the Constitution. Four complaints are made as follows.
(i) . There is no requirement that adjudication officers or members of the Labour Court have any legal qualifications, training or experience.
(ii) . There is no provision for an adjudication officer to administer an oath or affirmation. There is no criminal sanction for a witness who gives false evidence at a hearing before an adjudication officer. (By contrast, the Labour Court can take evidence on oath).
(iii) . There is no express provision made for the cross-examination of witnesses.
(iv) . The proceedings before an adjudication officer are held otherwise than in public. (There is a requirement to publish the decisions, albeit on an anonymised basis).
(I) . LEGAL QUALIFICATIONS
There are two strands to the Applicant’s complaint that the WRA 2015 should stipulate that adjudication officers and members of the Labour Court hold a legal qualification. First, that as a matter of principle, the decision-makers should be required to hold a legal qualification. Secondly, that as a matter of practice, hearings which are conducted by non-legally qualified decision-makers are deficient. These two strands are addressed, in turn, below.
The principled objection to the absence of a requirement for a legal qualification is predicated largely on an analogy with the qualifications prescribed under statute for judicial office. It is pointed out, correctly, that under the current legislation to be appointed to judicial office a person must have been a practising lawyer for a minimum period of time. For example, in order to be eligible for appointment to the High Court, Court of Appeal or Supreme Court, a person must be a practising barrister or practising solicitor of not less than 12 years standing. (Different rules apply where a sitting judge is to be appointed to a higher court).
With respect, there is an element of begging the question in this line of argument. It takes as its starting point an assumption that the role of an adjudication officer is equivalent to that of a judge. This assumption cannot be relied upon for the purposes of the present argument. By definition, the arguments advanced on behalf of the Applicant in this part of his case are made in the alternative only, i.e. these arguments only ever arise for consideration in the event that the court has already found against him on the principal plank of his case, namely the arguments in respect of Articles 34 and 37 of the Constitution. It is a given, therefore, that the arguments under Part III of this judgment fall to be assessed against a finding that the decision-making under the WRA 2015 does not involve the administration of justice. Any analogy with the eligibility criteria for judicial office is, therefore, inappropriate. Put shortly, there is no logical basis for saying that the holder of a non-judicial office should be subject to eligibility criteria equivalent to those for judicial office.
The Applicant has also sought to draw an analogy with the eligibility criteria prescribed for decision-makers under other pieces of legislation. In particular, reference is made to the Mental Health Tribunal; the Adoption Authority; the International Protection Appeals Tribunal; the Irish Financial Services Appeals Tribunal; and the Appeal Board established under the Censorship of Publications Act 1946.
More relevantly, the Applicant points to the fact that the Employment Appeals Tribunal (whose appellate function is now exercised by the Labour Court) had required that a legally qualified person sit on each division of the tribunal.
The essence of the Applicant’s argument is that it is impermissible, as a matter of constitutional law, for the Oireachtas to authorise non-legally qualified individuals to adjudicate on claims for unfair dismissal or for the payment of wages in lieu of notice. The fact that in different legislative contexts, the Oireachtas has chosen to include a legal qualification as part of the eligibility criteria cannot be determinative of this question of constitutional law.
The Applicant is unable to identify any express provision of the Constitution which would impose an obligation for legal qualifications. Even in the case of judicial office, the Constitution itself does not expressly require that a judge hold a professional legal qualification. Rather, the eligibility criteria are prescribed by statute. In some jurisdictions, leading academics, for example, are eligible for appointment to the bench.
Even if one assumes for the sake of argument that it is implicit in the Constitution that, in addition to the obvious requirements for independence and integrity, a professional legal qualification is a prerequisite to appointment to judicial office, it is difficult to infer from that an obligation that other decision-makers must similarly hold a legal qualification. Article 34 of the Constitution represents the bulwark against an encroachment on the judicial function. Where decision-making falls outwith the administration of justice, then the choice as to the eligibility criteria for appointment as a decision-maker under any particular statutory scheme is quintessentially a matter for the Oireachtas. The courts will be respectful of the margin of appreciation properlyafforded to the Oireachtas.
In examining eligibility criteria, the nature of the decision-making at issue would have to be considered in the round. Relevant factors would include, for example, (i) the potential impact of the decision-making on the rights and liabilities of affected persons; (ii) the nature of the decision-making and, in particular, whether it is closer to the policy end of the spectrum than to the determination of rights and liabilities; (iii) whether the decisionmaking calls for particular expertise, such as, for example, in relation to planning and environmental matters; (iv) the independence of the decision-maker; and (v) the extent to which guidance, by way of judgments, will be available from the courts.
The breadth and extent of modern legislation is such that many decision-makers will have to make decisions against a complex legislative background. Notwithstanding that such decision-makers must, of course, comply with and properly apply their governing legislation, it is nevertheless legitimate for the Oireachtas to afford priority to subjectmatter expertise rather than to legal qualifications. An obvious example is provided by An Bord Pleanala. The legislation governing planning and environmental decisionmaking is very complex. Indeed, a recent study of the case load of the Supreme Court indicates that a significant portion of appeals are concerned with planning and environmental matters. There is no requirement, however, that any member of An Bord Pleanala hold a legal qualification. Rather, the procedure for the appointment of board members involves the nomination of candidates by various panels which represent relevant stakeholders such as, for example, persons whose professions or occupations relate to physical planning, engineering and architecture. Relevantly, this represents a change from the legal position when An Bord Pleanala was first established under the Local Government (Planning & Development) Act 1976. At that time, to be eligible for appointment as chairperson of An Bord Pleanala, a person had to be a sitting or retired High Court judge.
A similar movement away from legal qualification to subject-matter expertise is evident in the context of employment disputes. In both instances, it represents a legitimate legislative choice.
It is important to reiterate that this judgment is confined to the two instances of decisionmaking relevant to the Applicant’s claims. These arise under the UDA 1977 and the Payment of Wages Act 1991. The adjudication upon such disputes does, of course, require the decision-maker to properly apply the law. For example, in some instances a dispute may arise as to whether the claimant qualifies as an “employee” or, alternatively, whether he or she had been engaged under a contract for services. This will require the decision-maker to consider and apply the relevant case law. The decision-making under these two Acts is unlikely, however, to give rise to the difficult or complex issues of EU law cited in the Applicant’s written legal submissions.
In most instances, the dispute between the parties will turn largely on the factual circumstances of the case. A decision-maker with relevant experience in, for example, human resources or industrial relations, is competent to resolve such factual disputes.
In assessing the alleged invalidity of the legislative choice as to eligibility criteria for appointment, it is necessary to have regard to the extent to which guidance, by way of judgments, will be available to the decision-makers. The WRA 2015 makes express provision for the Labour Court to refer a question of law arising in proceedings before it to the High Court for determination, and for the parties to bring an appeal on a point of law to the High Court. These procedures ensure that where a claim gives rise to a novel or difficult point of law, then recourse to the courts is possible. The judgment delivered by the High Court will provide guidance for the resolution of future disputes giving rise to similar issues of law.
I turn next to the second strand of the argument, namely that the absence of legal qualifications has given rise to difficulties in practice. The evidence before the court does not demonstrate this. The State respondents have put before the court detailed evidence as to the type of qualifications which candidates must have in order to be eligible for appointment. The evidence also indicates that extensive training has been provided on an ongoing basis to adjudication officers and members of the Labour Court. None of this has been contradicted by the Applicant’s side.
Instead, the Applicant seeks to rely on two independent experts, Mr Tom Mallon, BL and Mr Ciaran O’Mara, Solicitor. (I accept the submission made on behalf of the State respondents that a third deponent, Mr Eamonn O’Hanrahan, cannot properly be regarded as an independent expert in circumstances where he is the solicitor representing the Applicant in these proceedings. This is, obviously, no reflection on Mr O’Hanrahan’s acknowledged expertise or integrity).
Without in any way wishing to diminish the acknowledged expertise of these two practitioners, the affidavit evidence filed falls far short of establishing the type of systemic failure contended for. The content of the two affidavits is in the most general terms, and both deponents acknowledge that they have deliberately avoided singling out individual failures.
For example, Mr Mallon states as follows.
“[…] Whilst I accept that a number of the Adjudication Officers are properly qualified and have appropriate qualifications and experience, that is certainly not the case in respect of all of Adjudication Officers. A number of Adjudication Officers are practising solicitors or barristers. I acknowledge that some of the Adjudication Officers who are not qualified in the law have – by reason of their experience and general knowledge of such matters -competency to conduct a hearing but many lack competency to adjudicate issues of law which may be complex. I have to say however that a not insignificant proportion of the Adjudication Officers before whom I have appeared lacked sufficient qualifications or experience and, in some cases, they are not, in my view, capable of exercising the full range of powers under the 2015 Act and lack even the basic skill and ability to conduct a fair hearing. My concerns about the qualifications and experience of many Adjudication Officers apply equally to a number of the ordinary members of the Labour Court.”
Insofar as the practice in respect of allowing cross-examination is concerned, Mr Mallon states as follows.
“In brief reply to paragraph 43, whilst I accept that the facility to cross examine witnesses is more common it is not yet granted in every single case. I do however believe that there has been a change from the situation which was adopted in the early days of the Workplace Relations Commission when in my view there was a policy to deny cross examination and to reduce the time available for cases to a minimum. In this regard there continue to be serious issues in relation to the administration of hearings, including the assignment of limited time and difficulties in getting second and subsequent hearing dates, however I believe and am advised that those matters may be outside the scope of the proceedings.”
Mr O’Mara states as follows.
“[…] It has been my experience that a number of Adjudication Officers simply do not understand some of the more difficult questions that arise. Whilst it would not be appropriate for me to refer to any specific case I say that I have appeared before Adjudication Officers in cases where I firmly believe that the Adjudication Officer involved quite simply did not have sufficient understanding to deal with the important matters before them.”
The vagueness of the affidavit evidence is such that it is not possible for the court to determine, as a matter of fact, that the absence of a statutory requirement that an adjudication officer hold a legal qualification has resulted in a systemic failure in the hearing and adjudication of claims. The court has been provided with no practical examples of alleged incompetence on the part of an adjudication officer; no details of the qualifications held by the adjudication officers said to have been incompetent; nor any details of the percentage of the overall number of claims processed by the Workplace Relations Commission of which Mr Mallon and Mr O’Meara have direct experience.
In this regard, the evidence from the State respondents indicates that the Workplace Relations Commission hears and determines a very significant number of claims each year, running into the thousands. There is no indication from the affidavits filed by the two independent experts as to what number of cases they have personal experience of.
Moreover, the point made on behalf of the State respondents to the effect that, almost by definition, practitioners of this level of expertise will only have been involved in the more difficult cases is well made. Accordingly, the lens through which these experts are looking at the process is likely to overlook the vast majority of cases.
Finally, for the sake of completeness I do not think that any inference of systemic failure can be drawn from the particular circumstances in which the Applicant’s claim came to be dealt with during the period October to December 2016. Whereas it is regrettable that a situation came about whereby an adjourned hearing resulted in what purported to be a final conclusive determination of the proceedings, there is no statistically sound basis for seeking to draw wider inferences from what is, literally, one instance in a case load of thousands.
A detailed affidavit has been sworn in response to those of Mr O’Mara and Mr Mallon by Mr David Small, who is the Director of Adjudication in the Workplace Relations Commission. Mr Small reiterates certain points previously made by Ms Tara Coogan in an earlier affidavit sworn on behalf of the State respondents. Mr Small explains that as of the date of the swearing of his affidavit in January 2020, there were 51 adjudication officers holding warrants of appointment under the Workplace Relations Act 2015. A breakdown of their qualifications and experience is then set out as follows.
“[…] Of these, 9 of those in the role of Adjudication Officer are civil servants who hold the grade of Assistant Principal Officer and are former Equality Officers who served in the Equality Tribunal previously. There are five former Rights Commissioners. The remainder are persons who have been appointed by the Public Appointments Service in the manner described in Ms Coogan’s
Affidavit. Adjudication Officers hold a variety of educational and professional qualifications and come from a variety of professional backgrounds, however as explained in her affidavit of July 2019, in order to be eligible for appointment by the Public Appointments Service, candidates are required to have experience in at least one of Employment Law, Human Resources Management and Industrial Relations and will generally have had experience as members of or appearing before tribunals, committees and other decision-making bodies in the employment rights, equality rights and industrial relations arenas. Of the persons external to the Civil Service who hold the position of Adjudication Officer (i.e. those appointed by the Public Appointments Service) I am aware that 13 are qualified as either barristers or solicitors while other adjudication officers hold law degrees or qualifications in employment law.”
Mr Small then goes on to explain that all adjudication officers appointed by the Public Appointments Service are required to complete and graduate from the Workplace Adjudication Programme currently administered and delivered by the National College of Ireland. This is said to be a Level 8 qualification for the purposes of the National Framework of Qualifications. It is further explained that the Workplace Relations Commission hold ongoing continuous professional development meetings for adjudication officers and provides them with appropriate administrative and research support.
(II) . NO REQUIREMENT FOR OATH OR AFFIRMATION
Counsel on behalf of the Applicant, Mr Cian Ferriter, SC, submits that it is a fundamental principle of the common law that, for the purpose of trials in either criminal or civil cases, viva voce evidence must be given on oath or affirmation. The judgment of the Supreme Court in Mapp (A Minor) v. Gilhooley [1991] 2 I.R. 253 is cited in support of this proposition. Counsel is critical of the suggestion made on behalf of the State respondents that the finding in Mapp (A Minor) v. Gilhooley, to the effect that the evidence of an eight year old child could not be received because it was unsworn, is “somewhat anachronistic”, pointing out that the judgment dates from 1991, and not from the nineteenth century.
The common law principle is said to extend to non-judicial decision-making bodies. Counsel submits that, in the case of any significant statutory tribunal, there is always legislative provision made for sworn evidence, precisely because that is the common law requirement. The relevant provisions of the Medical Practitioners Act 2007 are cited by way of example. In particular, reference is made to there being “a full right to crossexamine witnesses” under section 65 thereof, and to the Fitness to Practise Committee being authorised to administer oaths for the purpose of an inquiry. Reference is also made to the Part 6 of the Residential Tenancies Act 2004. It is said that it is hard to find a tribunal which does not have the power to administer an oath. The requirement for an oath or affirmation carries with it the sanction of perjury.
Where there are going to be contested facts, the common law requires that the resolution of same be done on sworn evidence. The requirement for an oath or affirmation is said to add to the weight and gravity of the process of giving evidence on pain of sanction. The evidence giver is going to be careful that their evidence is correct. The requirement for an oath or affirmation is not a Victorian trapping, but an engine to ensure the accuracy of evidence.
The desire for informality in a decision-making process cannot trump legal rights, nor can it trump the fundamental requirement of the common law. The burden shifting provisions of the UDA 1977, which “deem” a dismissal to have been unfair unless there were substantial grounds justifying the dismissal, do not displace or excuse the necessity for contested facts to be resolved on sworn testimony. The absence of a criminal sanction for a witness who gives false evidence before an adjudication officer is said to render that part of the legislation invalid.
In response, counsel for the State respondents, Ms Nuala Butler, SC, contends that no authority has been cited for the proposition that there is a constitutional requirement that evidence must always be given on oath or affirmation. It does not follow as a corollary from the fact that there is a general practice that evidence should be on oath or affirmation that this is a constitutional requirement.
The judgment in Mapp (A Minor) v. Gilhooley is described as “somewhat anachronistic”. The context is said to be changing all the time. We have now moved to a position where the profession of religious faith is a much more private matter, and individuals are protected from religious discrimination by legislation.
The parliamentary history leading up to the enactment of the Workplace Relations Act 2015 indicates that there had been a deliberate legislative choice not to provide for evidence on oath. Counsel cites what she describes as the travauxpreparatories, namely the submission presented by the Minister to the Oireachtas Committee on Jobs, Enterprise and Innovation in July 2012, which indicates (at page 41) that the original proposal had been that evidence would be taken on oath.
This is said to have been a choice which was legitimately open to the Oireachtas: the procedure under the WRA 2015 is intended to be informal, more accessible, and less expensive. There would have to be a constitutional right to cross-examination before the legislation could be challenged on this basis. No such constitutional right exists. The circumstances underlying the judgment in In re Haughey [1971] I.R. 217 are distinguishable. Here, there is a statutory procedure whereby once dismissal has been asserted, then the burden of proof shifts to the employer to justify the dismissal. This is a very different situation from one where, as in In re Haughey, an allegation has been made against an individual which that person has to defend. In such a scenario, there is a right to confront your accuser.
Findings of the court
There does not appear to be any authority directly on point on the question of whether there is a constitutional requirement that evidence be given on oath or affirmation, subject to penal sanction in the case of perjury. It seems unlikely that there is a blanket entitlement in this regard. Rather, the case law indicates that whereas a person impacted by decision-making which affects their rights or liabilities is entitled to constitutional justice, the precise nature and extent of the fair procedures required in any particular case will depend on the context. There is a spectrum of decision-making, with criminal proceedings lying at one extreme. A criminal trial attracts the full panoply of fair procedures. These include the requirement that evidence be on oath or affirmation; rights to cross-examine one’s accusers; a right to legal representation by solicitor and counsel; and a right to legal aid to pay for that legal representation (subject to a financial means test). Disciplinary proceedings against professionals such as, for example, solicitors, doctors and nurses, lie close to this end of the spectrum of decision-making. The final decision to strike off such a professional is reserved to the High Court, and shares many of the procedural safeguards of a criminal trial.
The challenge for the court in the present case is as to where to locate a claim for unfair dismissal within the spectrum of decision-making. The case law does appear to suggest that employment as a professional has a special status, and that a decision to strike-off a professional has significant reputational effects. The heightened safeguards identified for professionals, in cases such as Law Society of Ireland v. Coleman [2018] IESC 80, cannot necessarily be read across to other employment contexts. Nevertheless, for a person to be unfairly dismissed from non-professional employment also has potentially significant consequences. It may, for example, represent a breach of their contractual rights (including any rights implied by statute). Contractual rights are, in principle, capable of being characterised as property rights under the Constitution. The unfair dismissal may also adversely affect their constitutional right to earn a livelihood and their constitutional right to good name. An individual who has been dismissed may have difficulty in obtaining new employment.
It is also relevant to consider the nature of the controversies which are likely to arise in contested employment law cases. Such disputes are likely to turn on the credibility of witnesses, with an employer and employee offering different versions of the same events. Put otherwise, the disputes are likely to turn on issues of fact rather than of opinion or expertise. This is to be contrasted with, for example, a hearing before an expert decisionmaker such as An Bord Pleanala.
It would seem, therefore, that there is an argument to be made that the hearing of evidence on oath or affirmation would be appropriate in the context of a claim for unfair dismissal. To say that it might be appropriate, however, falls far short of finding that this is a constitutional requirement. There is much to be said for the submission made on behalf of the State respondents to the effect that the informality of hearings before an adjudication officer confers a benefit to claimant-employees in terms of speed and expedition. These are legitimate objectives for the Oireachtas to consider.
Although not pressed by the parties, it occurs to me that the existence of a right of appeal to the Labour Court is significant in assessing the constitutional validity of the decisionmaking scheme. The two-tier structure ensures that the more informal hearing at first instance is counterbalanced by the right of appeal to the Labour Court. Crucially, the Labour Court is empowered to take evidence on oath. This is provided for under section 21 of the Industrial Relations Act 1946 (as amended), as follows.
21(1). The [Labour Court] may, for the purposes of any proceedings before it under this Act, the Unfair Dismissals Act 1977 or Part 4 of the Workplace Relations Act 2015, or any investigation under the Industrial Relations (Amendment) Act 2001, do all or any of the following things—
(a) summon witnesses to attend before it,
(b) take evidence on oath and, for that purpose, cause to be administered oaths to persons attending as witnesses before it,
(c) require any such witness to produce to the Court any document in his power or control.
(2) A witness before the Court shall be entitled to the same immunities and privileges as if he were a witness before the High Court.
(3) If any person—
(a) on being duly summoned as a witness before the Court makes default in attending, or
(b) being in attendance as a witness refuses to take an oath legally required by the Court to be taken, or to produce any document in his power or control legally required by the Court to be produced by him, or to answer any question to which the Court may legally require an answer,
he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.
In analysing the decision-making, it is appropriate to look to the full range of proceduresopen to a party. The judgment of the Supreme Court in Crayden Fishing Company v. SeaFisheries Protection Authority [2017] IESC 74; [2017] 3 I.R. 785, [33] provides very helpful guidance in this regard.
“Returning then to the facts of this case, I consider it is necessary to analyse the entirety of the process here. While an appeal in any administrative procedure is not a requirement of natural justice, nevertheless the existence of a full appeal is always relevant in considering the overall fairness of a process. Again, if there is a full hearing at what might be termed first instance, then it may be unobjectionable if an appeal proceeds on a more limited basis. Indeed, in the case of an appeal from the High Court to the Court of Appeal or Supreme Court, this is precisely what occurs. The same may be said in reverse: a full fair hearing before an adverse decision may mean that the initial process may proceed on a more limited basis. However, it would be wrong to extrapolate from any decision endorsing a particular procedure some general principle that that procedure is always unobjectionable in a different legal and factual context. Something which takes place in a lengthy process involving review and appeal may be insufficient if it is part of a single hearing and process.”
It is true, of course, that the scheme of the WRA 2015 does not provide for a “unitary” decision-making process, in that the decision of an adjudication officer is a stand-alone decision, and is final unless it is appealed to the Labour Court. Put otherwise, it is not an interim or preliminary decision, which requires to be affirmed by the Labour Court in order to become legally effective. A party who wishes to avail of evidence on oath or affirmation is put to the trouble of having to bring an appeal to the Labour Court. Nevertheless, it seems to me that the existence of the safeguard of an appeal is an important factor in assessing the Applicant’s arguments.
Again, it seems to me that a useful analogy can be drawn with the planning legislation. The Planning and Development Act 2000 (“PDA 2000”) provides for a two-tier decisionmaking process in respect of (conventional) planning applications. The “fair procedure” rights available at first instance, before the planning authority, are notably less generous than those at the second stage, by way of appeal to An Bord Pleanala. For example, there is no provision for an oral hearing at first instance. Yet, when considered in the round, the decision-making process fulfils the requirements of constitutional justice.
Having regard to the foregoing considerations, I have concluded that there is no constitutional requirement that decision-making of the type arising in a claim for unfair dismissal, or for the payment of wages in lieu of notice, must be performed on the basis of sworn evidence, i.e. evidence on oath or affirmation subject to a penal sanction in case of perjury. First, the nature and extent of the rights at issue falls further along the spectrum of decision-making than either criminal proceedings or disciplinary proceedings against a professional. The procedural requirements are therefore less stringent. Moreover, there are countervailing factors in the context of employment disputes which also indicate that a more informal and expeditious process is a legitimate legislative choice. In many instances, the monetary value of the claim will be modest, and the imposition of complex procedures involving potentially lengthy and costly hearings is something which may legitimately be taken into account by the Oireachtas. It is unnecessary, therefore, that there must be sworn evidence (at least not at first-instance).
Secondly, and in any event, even if there were a constitutional requirement for sworn evidence, this can legitimately be achieved by providing for sworn evidence on appeal. More specifically, when looked at in the round, the two-tier decision-making under the WRA 2015 ensures fair procedures by allowing for sworn evidence on appeal before the Labour Court.
(III) . NO EXPRESS PROVISION FOR CROSS-EXAMINATION
On behalf of the Applicant, Mr Ferriter, SC, submits that where there are material conflicts of fact, and fundamental rights are involved, then there must be crossexamination. The gravity of the rights engaged in employment disputes—which include the right to a good name and the right to a livelihood—are such that there should be a constitutional right to full cross-examination. The relevant provisions of the Medical Practitioners Act 2007 are, again, cited by way of example: that legislation expressly prescribes “a full right to cross-examine witnesses”.
Counsel submits that there are limits to the presumptions identified in East Donegal CoOperative Livestock Mart Ltd v. Attorney General [1970] I.R. 317 (at 341). In particular, a statutory provision which is clear and unambiguous cannot be given an opposite meaning. It is further submitted that the presumption runs into the ground on the facts of the present case, where the Applicant has adduced expert evidence to the effect thatthere are systemic problems in respect of the cross-examination of witnesses. These problems are said to arise because of a structural flaw in the WRA 2015, i.e. the failure to provide for a full right of cross-examination.
The Applicant is seeking a declaration, similar to that granted in Maguire v. Ardagh [2002] IESC 21; [2002] 1 IR 385.
In response, Ms Butler, SC, began her submission by confirming that the State accepts that if natural justice in a particular context requires that there be a right to cross-examine, then it must be afforded. If it is not afforded, then judicial review would lie. There is nothing in the statutory framework under the WRA 2015 which excludes a right to crossexamine, and the effect of the presumption in East Donegal Co-Operative is that proceedings before an adjudication officer will be conducted in accordance with constitutional justice. Evidence has been put before the court, by way of exhibits, of the guidance which is provided to adjudication officers.
A document entitled “Procedures in the Investigation and Adjudication of Employmentand Equality Complaints” (October 2015) states as follows (at pages 6/7).
“The adjudication officer can ask questions of each party and of any witnesses attending. He or she will give each party the opportunity to give evidence, to call witnesses, to question the other party and any witnesses, to respond and to address legal points. Witnesses may be allowed to remain or may be asked to come in only for their own evidence. The adjudication officer will decide what is appropriate, taking into account fair procedures, arrangements which will best support the effective and accurate giving of evidence and the orderly conduct of the hearing.”
The “Guidance Notes for a WRC Adjudication Hearing” (September 2016) provide that a party or their representative will be given the opportunity to question the other parties and the other witnesses regarding the evidence which they have given.
Counsel cites the following passage from Kiely v. Minister for Social Welfare [1977] IR 267 (at 281).
“[…] This Court has held, in cases such as In re Haughey, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally—to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like—but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently-cited dictum of Tucker L.J. in Russell v. Duke of Norfolk, ‘There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’”.
The WRA 2015 is said to allow for the possibility of cross-examination where required, and the guidance issued to the adjudication officers envisages it. It would be contrary to the presumption in East Donegal Co-Operative for the court to assume that crossexamination will not be allowed where required.
Findings of the court
The Applicant’s complaint that the WRA 2015 does not expressly provide for a right to cross-examine witnesses shares some ground with its earlier complaint that there is no provision for the taking of evidence on oath or affirmation. In each instance, the Applicant’s argument places emphasis on the importance of cross-examination in allowing a decision-maker to resolve factual disputes. The difference between the two complaints, however, is that whereas an adjudication officer is not empowered to administer an oath or affirmation, they do have an implicit power to allow crossexamination. Put otherwise, the complaint in respect of cross-examination reduces itself to one predicated on the absence of an express power or duty to allow cross-examination.
A power to allow cross-examination arises, by necessary implication, from the provisionsof section 41 of the WRA 2015 (and the equivalent provisions to be found under section 8 of the UDA 1977). An adjudication officer is required to give the parties to the complaint or dispute an opportunity (i) to be heard, and (ii) to present any evidence relevant to the complaint or dispute. It is inherent in these statutory provisions that an adjudication officer must allow the parties to test the evidence of the other side, by way of crossexamination. A party cannot be said to have been afforded a right to be heard if there is no opportunity to test the other side’s evidence.
The height of the Applicant’s argument is that there should be an express requirement to allow cross-examination in all cases. This argument cannot, however, be reconciled with the presumption applicable to administrative proceedings, as identified in East Donegal Co-Operative Livestock Mart Ltd v. Attorney General [1970] I.R. 317 at 341 (“East
Donegal Co-operative”).
The following passage from that celebrated judgment bears repeating.
“[…] At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
It is to be presumed, therefore, that an adjudication officer, when adjudicating on a complaint or dispute, will conduct the proceedings in accordance with the principles of constitutional justice. Not every claim will require the cross-examination of witnesses. In some instances, for example, the claim may turn on threshold issues, such as whether the claimant has been employed for the requisite period of time, or whether they meet the definition of an “employee” at all. In other instances, the facts will not be in issue, but there may be a dispute as to whether, on the agreed facts, the dismissal was justified.
In those cases where cross-examination is required, then the adjudication officer is to bepresumed to allow for same. If he or she fails to allow cross-examination, then this would, in principle, represent a good ground for judicial review. (The claimant might instead elect for an appeal to the Labour Court).
It would be inconsistent with the presumption identified in East Donegal Co-Operative to condemn the WRA 2015 on the basis that it does not prescribe the procedure for determining claims in detail.
(IV) . RIGHT TO A HEARING IN PUBLIC
The Applicant objects that the proceedings before an adjudication officer are held otherwise than in public. There are three strands to this objection; (i) it is said to represent a breach of an individual’s personal rights under Article 40.3 of the Constitution; (ii) a public hearing is required by analogy with Articles 34 and 37 of the Constitution; and (iii) a public hearing is required under Article 6 of the European Convention on Human Rights.
Before turning to consider each of these strands in turn, it is necessary first to consider the publication requirements which apply to decision-making under the WRA 2015.
The proceedings before an adjudication officer are addressed as follows under section 41(13) and (14) of the WRA 2015 (as applied to the UDA 1977, by section 8 thereof).
(13) Proceedings under this section before an adjudication officer shall be conducted otherwise than in public.
(14) The Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision (other than information that would identify the parties in relation to whom the decision was made) of an adjudication officer under [subsection (1) of section 8 of the Act of 1977].
As appears, although the proceedings themselves are conducted in private, there is an express obligation to publish every decision on what might be described as an “anonymised” basis.
The obligations of the Labour Court are addressed as follows at section 44 of the WRA 2015.
(7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.
Returning to the Applicant’s arguments, it may be convenient to address the first and second arguments together. The Applicant seeks to rely variously on Articles 34.1, 37 and 40.3 of the Constitution to conjure up a constitutional right to a public hearing before a statutory decision-maker. No authority is cited in support of the asserted constitutional right. Instead, the implication seems to be that the values which are protected by the requirement that justice shall be administered in public (save in such special and limited cases as may be prescribed by law) extend, by analogy, to statutory decision-making. The Applicant cites a number of cases which illustrate the values underlying Article 34.1, namely that justice must not only be done, but be seen to be done, in order to ensure respect for the rule of law and to maintain public confidence in the administration of justice. The requirement of a hearing in public has been described as a check upon the power which can be exercised by judges. Reliance is placed, in particular, on In Re R Ltd [1989] I.R. 126; Irish Times Ltd v. Ireland [1998] 1 IR 359; and Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 I.R. 284.
It is not immediately apparent that the values protected by the constitutional requirement that justice be administered in public can be “read across” to decision-making by nonjudicial bodies. The judicial power is one of the three branches of government, and there is an obvious importance in ensuring that the power is, generally, exercised in public. This rationale applies with less force to statutory decision-makers who, by definition, are exercising much more limited powers.
Even in the case of the judicial power, there are exceptions to the requirement that justice be administered in public. In some instances, a requirement for a public hearing might deter individuals from having recourse to the courts, on the basis that the price to be paid in terms of the loss of privacy is too high. It is for this reason that family law proceedings are normally heard in camera. The rationale for this has been explained as follows by O’Donnell J. in Gilchrist v. Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 I.R. 284, [42].
“[…] A couple should not have to go to the lengths of contemplating withdrawing an application for a divorce, separation, or for custody of children, to secure a hearing in private of personal matters. It is true that the interest of administration of justice between the parties is engaged in such a case, but so too is the importance of protecting family life and of avoiding the insult to the dignity of the individual by requiring that intimate matters be aired in a public hearing, with a risk of wider publicity. Conversely, one party to a relationship ought not to be able to bring pressure to bear on the other and perhaps more sensitive partner by demanding a hearing in public as a constitutional entitlement. In a case where justice cannot be done or cannot be done without damage to important constitutional values, it is appropriate to provide for the possibility of a hearing other than in public, albeit that it is a matter for the court to decide whether any departure from the standard of a full trial in public is required and if so what measures are the minimum necessary.”
The judgment in Gilchrist is also instructive in that it emphasises that any departure from the general rule that justice must be administered in public should be considered incrementally, by asking whether there are any lesser steps which would meet any legitimate interests involved. The choice is not a binary one between (i) a hearing fully in public, or (ii) one completely in camera.
Even if one assumes for the purposes of argument that a presumption in favour of a public hearing—analogous to that applicable to the administration of justice under Article 34.1—arises in the context of a claim for unfair dismissal, the statutory requirements of the WRA 2015 strike a proper balance. More specifically, the desirability of a public hearing must be balanced against the risk that publicity might deter some employees from pursuing a claim. An employee might be concerned that the public record might have implications for their future employment. An employee who is successful in a claim for unfair dismissal might, unfairly, be seen by prospective employers as a “troublemaker”. The legislation achieves a compromise between publicity and privacy by ensuring that the decisions must be published, albeit on an anonymised basis. The reasoning of the decision-maker is thus publicly available, and this ensures a check on arbitrary decision-making. At the same time, the fact that the parties are not identified ensures privacy.
Even if this analysis is incorrect, and there should be a public hearing, this is, in any event, achieved by the provisions governing the Labour Court. For reasons similar to those discussed at 178 above, it is appropriate to have regard to the decision-making process in the round. It is necessary, therefore, to consider not only the first instance decision of an adjudication officer, but also the appellate stage before the Labour Court. As noted earlier, section 44(7) of the WRA 2015 provides that proceedings before the Labour Court shall be conducted in public unless the Labour Court determines otherwise.
In summary, therefore, my findings on this issue are as follows. First, it is doubtful whether the values protected by the constitutional requirement that justice be administered in public can be “read across” to decision-making by non-judicial bodies. Secondly, even if one assumes for the purposes of argument that a presumption in favour of a public hearing, analogous to that applicable to the administration of justice under Article 34.1, arises in the context of a claim for unfair dismissal, the legislative requirement for a public decision but a private hearing represents a legitimate legislative choice. Thirdly, any requirement for a public hearing, is, in any event, achieved by the provisions governing the appeal to the Labour Court.
European Convention on Human Rights (Article 6(1))
Article 6(1) of the European Convention on Human Rights (“ECHR”) provides as follows.
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The ECHR is not directly applicable in the domestic legal order, but rather is given effect to through the provisions of the European Convention on Human Rights Act 2003. In particular, there is an obligation to interpret and apply domestic law, in so far as is possible, in a manner compatible with the State’s obligations under the provisions of the ECHR. (This is subject to the rules of law relating to such interpretation and application).
It is not, strictly speaking, necessary for the purposes of this judgment to decide whether a decision on his claim for unfair dismissal or for a minimum notice period represents the “determination” of the Applicant’s “civil rights and obligations” within the meaning of Article 6(1). This is because the State’s response to this aspect of the judicial review proceedings is to say that any requirement for a “public hearing” is met by a public hearing at the appeal stage, i.e. before the Labour Court.
Counsel for the State respondents, Mr Mark Dunne, SC, helpfully took the court through a number of judgments of the ECtHR including Malhous v. The Czech Republic [GC], no. 33071/96, 12 July 2001; Buterleviciute v. Lithuania, no. 42139/08, 12 January 2016;
and Ramos Nunes de Carvalho e Sa v. Portugal [GC], nos. 55391/13, 57728/13 and
74041/13, 6 November 2018.
The principles are summarised as follows in the last of these three judgments.
“192. The Court has previously examined the question whether the lack of a public hearing at the level below may be remedied by a public hearing at the appeal stage. In a number of cases it has found that the fact that proceedings before an appellate court are held in public cannot remedy the lack of a public hearing at the lower levels of jurisdiction where the scope of the appeal proceedings is limited, in particular where the appellate court cannot review the merits of the case, including a review of the facts and an assessment as to whether the penalty was proportionate to the misconduct (see, for example, in a disciplinary context, Le Compte, Van Leuven and De Meyere, cited above, § 60; Albert and Le Compte, cited above, § 36; Diennet, cited above, § 34; and Gautrin and Others v. France, 20 May 1998, § 42, Reports 1998-III).
If, however, the appellate court has full jurisdiction, the lack of a hearing before a lower level of jurisdiction may be remedied before that court (see, for example, Malhous, cited above, § 62, and, in a disciplinary context, A. v. Finland (dec.), no. 44998/98, 8 January 2004, and Buterleviciute v. Lithuania, no. 42139/08, §§ 52-54, 12 January 2016).”
As appears, the ECtHR confirmed that a public hearing before an appellate court may remedy what would otherwise be a breach of Article 6(1) at a lower level of jurisdiction. This is subject to the requirement that the appellate court have “full jurisdiction”.
These principles apply to the determination of the two claims brought by the Applicant. Whereas there is no provision for a public hearing before an adjudication officer, at first-instance, an appeal before the Labour Court shall be conducted in public, save in special circumstances. The appeal is by way of full de novo hearing, and thus the requirement that the appellate court have “full jurisdiction” is fulfilled.
PART IV
CONCLUSIONS AND FORM OF ORDER
The powers exercised by adjudication officers and the Labour Court under Part 4 of the Workplace Relations Act 2015 (“the WRA 2015”) exhibit many of the characteristics of the administration of justice. Those two statutory bodies have been empowered to determine employment law disputes, and do so by way of an inter partes hearing between the claimant-employee and their employer. In the case of a claim for unfair dismissal, the remedies which can be awarded are significant, and, in some instances, would exceed the general monetary jurisdiction of the Circuit Court. More specifically, a determination may direct re-instatement or re-engagement of the employee, or the payment of a sum equivalent to two years’ salary.
Crucially, however, the decision-making under the WRA 2015 lacks one of the essential characteristics of the administration of justice, namely the ability of a decision-maker to enforce its decisions. The necessity of having to make an application to the District Court to enforce a decision of an adjudication officer or the Labour Court deprives such determinations of one of the essential characteristics of the administration of justice. Whereas the function to be exercised by the District Court is a narrow one, it cannot be dismissed as a mere rubber-stamping of the earlier determination. The District Court’s discretion to modify the form of redress represents a significant curtailment of the decision-making powers of the adjudication officers and the Labour Court. The District Court can, in effect, overrule their decision to direct that the employee be re-instated or re-engaged.
A decision-maker who is not only reliant on the parties invoking the judicial power to enforce its decisions, but whose decisions as to the form of relief are then vulnerable to being overruled as part of that process, cannot be said to be carrying out the administration of justice.
It follows, therefore, that the Applicant’s contention that the determination of (i) a claim of “unfair dismissal”, and (ii) a claim for payment in lieu of notice, are matters which are properly reserved to judges appointed in accordance with the Constitution is not made out.
The Applicant’s alternative argument to the effect that the procedures prescribed underthe Workplace Relations Act 2015 are deficient is also not well founded.
The constitutional challenge to the validity of the Workplace Relations Act 2015 is, therefore, dismissed.
The State respondents have already conceded that the decision made on 16 December 2016 should be set aside by an order of certiorari. I propose to make an order to that effect, and to remit the claims pursuant to the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991 to the Director General of the Workplace Relations Commission to be referred to another adjudication officer for rehearing.
A stay will be placed on these orders for twenty-eight days pending the making of an appeal to the Court of Appeal or the making of an application for leave to appeal to the Supreme Court. The stay will continue pending the determination of any appeal made.
The attention of the parties is drawn to the practice direction issued on 24 March 2020 in respect of the delivery of judgments electronically, as follows.
“The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.”
The parties are requested to correspond with each other on the question of the appropriate costs order. In default of agreement between the parties on the issue, short written submissions should be filed in the Central Office within fourteen days of today’s date.
Appearances
Browne v. A.G.
[2002] IEHC 47 (6 March 2002)
Judgment of Mr. Justice Nicholas Kearns delivered this 6th day of March, 2002
Introduction
1. This is a case about tuna fish and dolphins and the implementation in Irish law of an EU Regulation. The albacore tuna is a migratory species which may be found off the Azores in June and which moves gradually north east over the following four to five months. This species feeds on a variety of prey, including certain fish types, squid and saury, which are also prey items for dolphins. In the North East Atlantic, the albacore tuna fishery operated by French and Spanish vessels dates back to the 19th Century. Traditionally, tuna were caught on troll-lines towed behind the fishing vessel, but following a reduction from 1,000 to 50 vessels in the French tuna fleet between 1950 and 1986, drift net fishing techniques were introduced in an attempt to relaunch the French tuna industry. This proved economically viable and, following trials, Ireland followed suit in the early 1990’s. By 1993 there were some 90 Community vessels engaged in drift net fishing for tuna, of which 64 were French, 16 Irish and 10 British. Spanish vessels, which are prohibited by Spanish law from using drift nets, continue to troll for tuna with a fleet of between 600-700 vessels, most of which operate in the North East Atlantic.
2. Drift nets have been used to catch fish for many centuries but since the use of mono-filament in net manufacture during the 1960’s, increasing concern was expressed over the number of non-target species being caught, notably dolphins, who, like tuna, often swim close to the surface.
3. A drift net consists of a number of sheets of common gill net which are joined together and which when deployed by “shooting” or “streaming”, are maintained in a vertical position in the water in a wall-like fashion by a line of floats at the top and a line of weights at the bottom. Such nets can be of varying length and, in certain instances in the Pacific, were up to 50 kilometres in length. A drift net is defined in the Sea Fisheries (Drift Nets) Order 1998 (SI 267/1998) (The Irish Regulation) as ” a wall of netting used in fishing, which is free to move according to the wind and tide”. To reduce the risk of catching dolphins, some drift nets incorporate gaps or doors through which dolphins can sometimes escape.
4. Accordingly, and not merely because of any perceived threat to fish stocks but also because of concerns that by-catches of cetaceans (marine mammals) were unacceptably high, the UN called upon all members of the International Community to agree to an immediate cessation to further expansion of large scale pelagic drift net fishery activities on the high seas. It passed a number of resolutions, to which in turn the EU responded in 1992 by adopting Regulation 345 which set a maximum length of 2.5 kms for drift nets used by EU vessels. This Regulation provided for a number of derogations.
5. In April 1994 the Commission of the EU reported to the Council both on drift netting and in relation to the various derogations, finding that a proposal was necessary to provide for the cessation of all fishing activities using drift nets and the immediate application of special control measures. Majority support among the Member States for such a ban was not forthcoming until the presentation in 1998 of a UK Presidency compromise proposal which in June 1998 resulted in the adoption of Regulation 1239/98 (“The EU Regulation”). The EC Regulation altogether banned drift netting for tuna fishery in the North Atlantic and Mediterranean with effect from January 1st 2002 and provided for a cap on the number of vessels that, subject to the 2.5 km net length restriction, could still participate in the drift net tuna industry for the period from 1998 to the end of 2001.
6. Both France and Ireland voted against the adoption of the regulation, contending, in Ireland’s case, that there was no scientific evidence that albacore tuna stocks were over-exploited or that drift netting resulted in biologically significant by-catches of dolphins. Tuna fishing was for Ireland of significant socio-economic importance, involving, prior to capping, some 30 boats in Counties Cork and Kerry, fishing mainly out of Dingle and Castletownbere. Part of the relief sought in these proceedings is a declaration that the EC Regulation (which had amended Council Regulation [EC] 894/97) is unlawful and invalid as being contrary to EC law. A referral under Article 234 to the European Court of Justice is sought for that purpose. However, the more immediate task with which the Court is concerned is to inquire whether the EC Regulation has been properly transposed into Irish law, given that the Applicant herein faces prosecution on charges in the Cork Circuit Court as a result of allegedly infringing the implementing measures provided for by the Irish Regulation.
The Facts
7. Vincent Browne, the Applicant, is from Castlegregory, Co Kerry and is the master of an Irish fishing boat, the MFV “Antonia”, which sails out of Castletownbere. He is a member of the Irish Tuna Association and has an authorisation to fish, inter alia, for tuna.
8. On the 15th of June 2000 he departed from Dingle in Co Kerry with a view to fishing for tuna, prior to which he had obtained a permit issued by a Sea Fisheries Officer pursuant to the Irish Regulation. In his Affidavit he deposes that the vessel was carrying 2.5 kilometres of drift net and was also carrying approximately 4 kilometres of gill net, which was rigged similarly to a drift net, but which had in addition 5 sea anchors for attachment to the net, together with 2 heavy steel gill net anchors for attaching at each end of this stretch of approximately 4 kilometres of gill net and in excess of 600 fathoms of rope for attaching these heavy steel gill net anchors. He deposes that these anchors are intended to and do in fact assist in preventing the nets when set from drifting according to wind and tide and contends accordingly that the second length of net was not a drift net as defined by the Irish Regulation.
9. The vessel travelled some 400 miles from Dingle in a south westerly direction and ended up fishing in an area some 190 nautical miles outside of the 200 nautical mile exclusive fishery limit of the State. There the vessel fished for tuna between the 18th June – 23rd June, 2000. At about 4.30 p.m. on Saturday, 24th day of June 2000, the boat was boarded by a boarding party from an Irish Naval vessel the LE “Deirdre” led by Sub-Lieutenant Bernard Heffernan.
10. The Applicants log book recorded possession of the 2.5 kms of drift net and 4.5 kms of gill net which nets were then inspected by members of the Naval Service. The log of the vessel was inspected, as was the fishing gear and nets which were then in the net pound at the stern of the vessel. The Naval Officer then requested the Applicant to shoot all of the net on board into the water, for the purpose of measuring it’s length. He noted that the anchors and fittings were not rigged to the second net. In cross-examination before this Court he agreed that Mr Brown had said at the time that this second net hadn’t been used. He also stated, however, that this second net was exactly the same as the first net on inspection. He agreed that the 2.5 km length of net was in 12 sections and was a continuous wall with no gaps or doors. Having shot the nets, the same were measured at 2.545 kms and 4.554 kms respectively.
11. Having thus ascertained the length of net or nets, Officer Heffernan cautioned the Applicant and informed him that he was being detained for the offence of keeping on board, or using for fishing, one or more drift nets whose individual or total length was more than 2.5 km contrary to Article 11 of the Council Regulation (EC) 1239/98 amending Council Regulation (EC) 894/97. The Applicant indicated that he understood the caution and commenced hauling his gear. Later that evening, Officer Heffernan’s Commanding Officer gave orders that the Applicant be directed to make best speed for Castletownbere where both vessels arrived on Monday the 26th day of June 2000. On arrival, the vessel was met by Garda Hegarty of Castletownbere and two Sea Fisheries Officers of the Department of the Marine following which Garda Hegarty detained the boat on suspicion of having committed an offence pursuant to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended.
12. Following an inspection of the vessel, Garda Hegarty handed over custody of same to Sergeant O Donovan of Castletownbere, at which point the Applicant and his solicitor were informed there would be an application made to the District Court in Macroom for a detention order for 48 hours in accordance with the provisions of the Fisheries (Consolidation) Act 1959 as amended. The last named Respondent granted a detention order for 48 hours, during which time the fish was off-loaded from the “Antonia” and sold, the proceeds whereof amounting to £16,900.00 have been retained pending the outcome of the prosecution. The Applicant was subsequently arrested and charged on the 28th of June 2000 with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Preliminary examinations were waived and the Applicant was returned for trial to the Cork Circuit Criminal Court following which the vessel was released to the Applicant subsequent to the entry of bail bonds to secure the release of the boat and gear. Throughout these procedures, the Applicant’s solicitors maintained an objection that there was no authority in any Irish legislation giving powers of detention to the Naval Service in respect of Irish fishing boats on the high seas.
13. The first of the two charges charges the Applicant that he did on the 24th day of June 2000 keep on board the sea fish fishing vessel “Antonia” a drift net prohibited by Article 11 of Council Regulation (EC) 894/97 of the 29th April 1997 as amended by Council Regulation (EC) 1239/98 of the 8th June 1998 and of Part 4 of the Sea Fisheries drift Net Order, 1998 (SI 267/98) contrary to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment) Acts 1978,1983 and 1994. The second offence charged is that the Applicant did on the same date use for fishing one or more drift nets prohibited by the same Article, contrary to Article 3 of the Sea Fisheries (Drift Nets) Order 1998, contrary to Section 223A of the Fisheries (Consolidation) Act, 1959, amended as already stated.
14. On the 19th December 2000, Kelly J gave leave to the Applicant to apply by way of Judicial Review for the following reliefs:-
1. An Order of Prohibition directed to the first named Respondent herein prohibiting him from prosecuting the Applicant in the Cork Circuit Court on the charges proffered by him and contained in Castletownbere charge sheets No. 27 and 28 of 2000.
2. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on or about the 28th June 2000 whereby he returned the Applicant for trial to the Cork Circuit Criminal Court on foot of the charges contained in Castletownbere charge sheets No. 27 and 28 of 2000.
3. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on the 26th June 2000 pursuant to Section 233A of the Fisheries (Consolidation) Act 1959 (as amended by Section 12 of the Fisheries [Amendment] Act 1978 and as amended by Section 11 of Fisheries [Amendment] Act 1994) whereby he directed the continued detention by Garda Martin Hegarty of the Sea Fishing boat “Antonia” of which the applicant is the Master and the persons on board at the Port of Castletownbere for a period of 48 hours from 10.09 p.m. on the 26th June 2000.
4. A declaration that the boarding, arrest and detention of the Fishing Boat “Antonia” on or about the 24th June 2000 190 miles outside the exclusive fishery zone of the State was unlawful and unauthorised by law.
5. A declaration that bottomset nets or anchor fixed gill nets on board the Antonia do not constitute drift nets for the purposes of Council Regulation 1239/98 or the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998).
6. A declaration that the Sea Fishers Drift Net Order 1998 (SI 267 of 1998) is ultra vires the powers of the third named Respondent herein and contrary to the European Communities Act 1972 as amended and/or contrary to Section 5 of the Fisheries (Amendment) Act 1983.
7. A declaration that the Fisheries (Drift Nets) Order 1998 (SI267 of 1998) is ultra vires the powers of the third named Respondent herein pursuant to Section 223A of the Fisheries Consolidation Act 1959 as inserted by Section 4 of the Fisheries Amendment Act 1983 or alternatively the said section is invalid having regard to the provisions of the Constitution and in particular Article 15 thereof.
15. Other reliefs sought, including a possible referral under Article 234 of the Treaty of the European Communities referring the matter to the Court of Justice, to which I have already made reference, need not be detailed further at this point.
16. The grounds upon which relief was sought include the following:-
1 The Applicant has been arrested, detained, charged and returned for trial for a matter which is not an offence known to Irish law.
2 The activity complained of by the first named Respondent is outside the jurisdiction of the State and the entitlement of the first named Respondent to prosecute for same.
3 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are outside the jurisdiction prescribed by Section 10 of the Maritime Jurisdiction Act 1959 as amended, as it is not within the territorial seas or internal waters of the State.
4 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are not alleged to have been committed within the exclusive fisheries limits prescribed by the Government pursuant to Section 6 of the Maritime Jurisdiction Act 1959 and as laid down in the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976.
5 The offences alleged do not come within the scope of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) made pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended (as inserted by Section 4 of the Fisheries Amendment Act, 1983) under Chapter 2 of Part 13 of the 1959 Act which sets out the statutory provisions applicable to the exclusive fishery limits of the State. The previous statutory instruments (SI 201 of 1994 and SI 262 of 1995) proscribing any infringement of Article 9 (A)(1) of Council Regulation 3094/86 outside the exclusive fishery limits of the State in relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel have been repealed by SI 267 of 1998 and have not been re-enacted by SI 267 of 1998 in relation to any infringement of Council Regulation 1239/98 outside the exclusive fishery limits of the State.
6 The powers of Sea Fishery Protection Officers pursuant to Part XIII of the Fisheries (Consolidation) Act 1959 as amended only apply and are exercisable in relation to offences allegedly committed within the areas comprised within the territorial seas or internal waters of the State under the Maritime Jurisdiction Act, 1959 or within the exclusive fishery limits prescribed by the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976 and have not been extended or deemed to apply outside the exclusive fishery limits of the State and in particular in relation to Council Regulation 1239/98.
7 The first named Respondent and/or his solicitor were unable to inform the Applicants solicitor orally or in reply to correspondence written by the Applicants solicitor as to what power of detention they were exercising in relation to the Applicant on the High Seas and were also unable to inform the fourth named Respondent herein what power had been exercised or the existence of any particular power which would entitle the Applicant to be arrested and his ship to be boarded and detained but that they did believe that there was such a power.
8 The second named Respondent is obliged when purporting to give effect to Acts or measures adopted by the European Communities or by any of the institutions thereof to use the methods prescribed by law and in particular the methods prescribed by the Oireachtas for the proper implementation of these into domestic law (whether by means of a Regulation made pursuant to Section 3 (1) of the European Communities Act 1972 as amended or, where necessary, by the passage of legislation to be enacted by the Oireachtas in circumstances where this is required, or alternatively by the making of regulations pursuant to Section 224 B of the Fisheries (Consolidation) Act 1959 as inserted by Section 5 of the Fisheries mendment Act 1893).
9 Insofar as the second named Respondent has purported to give effect to Council Regulation (EC) 1239/98 by means of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) in purported exercise of the powers conferred to him by Section 223A of the said 1959 Act as amended, and by failing to use Section 3 (1) of the European Communities Act 1972 as amended or Section 224B of the said Fisheries (Consolidation) Act, 1959 as amended or by securing the passage of legislation by the Oireachtas, the said Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) is invalid and unlawful and ultra vires the powers of the second named Respondent herein.
10 Insofar as the second named Respondent made the said 1998 Order purportedly pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended and insofar as the same
(a) creates an indictable offence on the high seas
(b) defines that offence
(c) purportedly has applied to it the enforcement provisions of Chapter 2 and of Part XII of the 1959 Act, as amended and the prosecution, conviction and penalty provisions of Sections 2 to 4 of the 1978 Fisheries (Amendment) Act as amended by the Fisheries Amendment Acts 1983 and 1994.
The Minister is acting ultra vires Section 223A of the said 1959 Act as it only permits him to regulate the exclusive fishery limits of the State.
11 Alternatively if and insofar as the said regulations are ultra vires the said Section 223A, constitutes an impermissible delegation of law making power by the Oireachtas to the second named Respondent herein, contrary to Article 15 of the Constitution.
The Statement of Opposition
17. The Statement of Opposition contends that the return for trial was made within jurisdiction and denies that any steps taken prior to the making of such Order were unlawful or failed to come within the scope of the Sea Fisheries (Drift Nets) Order 1998.
18. The Statement further contends that the various Orders made by the fourth named Respondent are now spent. Any controversy as to whether the bottomset or anchor fixed gill nets on board the vessel constitute drift nets is a pure issue of fact to be determined by the Court of Trial, and it is submitted that this Court has no jurisdiction or alternatively, should refuse its discretion, to make any declaration on this point. This Statement further contends that the powers of Sea Fishery Protection Officers are not limited in application to offences committed within the territorial seas or within the exclusive fishery limits of the State.
19. Further, the powers of detention, arrest and boarding exercised by the first named Respondent derive from Section 233 of the Fisheries (Consolidation) Act 1959 as amended.
20. Paragraph 13 states as follows:-
“The second named Respondent was entitled at law to make an Order under Section 223A of the Fisheries (Consolidation) Act 1959, as amended, for the purpose inter alia, of giving effect to certain provisions of Council Regulation (EC) 894/97 of April 29th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th, 1998.”
21. It is further denied that Orders made under Section 223A of the Fisheries (Consolidation) Act 1959 as amended are limited in scope to regulating the exclusive fishery limits of the State. It is further denied that Section 223A of the Fisheries (Consolidation) Act 1959, as amended, constitutes an impermissible delegation of law making by the Oireachtas to the second named Respondent.
The EC Regulations
22. Title VIII of Council Regulation (EC) No 2847/93 of 12th October 1993 established a control system applicable to the Common Fisheries Policy and provided as follows by Article 31:-
“1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of National law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. Sanctions arising from the proceedings mentioned in paragraph 2 may include, depending on the gravity of the offence:
– Fines,
– Seizure of prohibited fishing gear in catches
– Sequestration of the vessel
– Temporary immobilisation of the vessel
– Suspension of the licence
– Withdrawal of the licence”
Given that these enforcement requirements for non-compliance exist, it is contended on behalf of the Respondents in this case that the State, in transposing the EC Regulation, was required to create an offence that was at least capable of being tried on indictment.
23. EC Council Regulation 894/97 lays down certain technical measures for the conservation of fishery resources.
24. Article 11 provides as follows:-
“1. No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5 kilometres.
2. Throughout the fishing referred to in paragraph one, the net must, if it is longer than 1 kilometre remain attached to the vessel. However, within the 12 mile coastal band, a vessel may detach itself from the net, provided that it keeps it under constant observation.
3. Notwithstanding Article 1 (1) this Article shall apply in all waters, with the exception of the Baltic Sea, the Belts and the Sound under the sovereignty or jurisdiction of the Member States, and outside those waters to all fishing vessels flying the flag of a Member State or registered in a Member State.”
25. The Regulation did not contain a definition of “Drift Net”, although the Regulation did define “Bottom Set Gill Nets or Entangling Nets” and “Trammel Nets”. Reference is made in the Regulation to the use of gill nets at Article 9, paragraph 2 (dealing with Mackerel) which, Mr McGuinness on behalf of the Applicant suggests, is indicative that all these types of net are distinguishable from each other.
26. This Regulation was amended by Council Regulation (EC) No1239/98 of the 8th of June 1998. It replaced Article 11 of 894/97 by repeating Article 11 (1) and by adding Article 11A which provided:-
“1. From 1 January 2002 no vessel may keep on board, or use for fishing, one or more drift nets intended for the capture of species listed in Annex 8.
2. From 1 January 2002, it is prohibited to land species listed in Annex 8 which have been caught in drift nets.
3. Until 31 December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the Flag Member State. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more drift nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 to 1997.”
27. Article 6 of the Regulation provided:-
“In the case of failure to comply with the obligations laid down in Articles 11 and 11A and this Article, the competent authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of Regulation (EC) No. 2847/93.”
28. The Regulation further provided that the said obligations should apply in all waters falling within the sovereignty of jurisdiction of the Member States and outside those waters should apply to “all community fishing vessels.”.
29. It was for the purpose of transposing, implementing and providing for enforcement to the Regulation that the Minister for the Marine and Natural Resources on the 28th July 1998 introduced the Sea Fisheries (Drift Nets) Order 1998 (SI 267/98) (The Irish Regulation).
The Irish Regulation
30. In introducing the Irish Regulation, the Minister purported to do so in exercise of powers conferred on him by Section 223A of the Fisheries (Consolidation) Act 1959 as amended, which provides:-
“(1) Chapter II of part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (i) of section 223A (inserted by section 9 of the Act of 1978):
“1. The Minister may, as he shall think proper, by Order prescribe and adapt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.
(1A) Without prejudice to the generality of subsection (1) of this section, an Order under this may –
(a) relate –
(i) generally to sea fishing or to sea fishing which is of a specified class or description,
(ii) generally to fishing other than sea fishing or to such fishing which is of such of such a class or description,
(iii) generally to fisheries other than sea fisheries or to such fisheries which are of such a class or description,
(iv) generally to fishing boats (including sea fishing boats) or to fishing boats which are of such a class or description,
(v) to boats, other than fishing boats, which are of such a class or description,
(b) for the purpose of enabling the Order to have full effect, extend any or all of –
(i) the powers conferred by this Act on a sea Fisheries Protection Officer for the purposes of this Act
(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act
(iii) the powers so conferred on authorised officers within the meaning of Section 301 of this Act,
(c) Include such incidental supplementary and consequential provisions as the Minister considers appropriate, and in case provisions are included in such an Order by virtue of paragraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the Order
2 An order under subsection (1) of Section 223A (inserted by Section 9 of the Act of 1978) of the Principal Act and which immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made under the first of the subsections inserted in the said Section 223A by subsection (1) of this section and may be revoked or amended as if it had been so made
3 A person who contravenes or attempts to contravene an Order under this Section shall be guilty of an offence
4 The Minister may by Order revoke or amend an order under this section including an order under this subsection”
31. It is interesting to contrast this provision with Section 224 (B) of the Fisheries (Consolidation) Act 1959, which was inserted by Section 5 of the Fisheries (Amendment) Act 1983, and which was clearly envisaged as a vehicle for the transposition of EU measures into Irish law. Section 224B (1) provides:-
“Without prejudice to the generality of Section 3 (1) of the Act of 1972, the Minister may by Regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or of any Act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.”
32. Because the availability of this provision is confined to regulations to be introduced to give effect or have effect within the exclusive fishery limits of the State, it clearly fell short of what the Minister required to create an indictable offence outside those limits on the high seas. Because the creation of an indictable offence was involved, the provisions of the European Communities Act 1972, usually availed of for transposition purposes, were also unavailable.
33. The purported effect of SI 267/98 is to put in place enforcement provisions for Council Regulation 1239/98. Essentially it provides that from the making of the Order no vessel may keep on board or use for fishing one or more drift nets whose individual or total length is more than 2.5 kilometres. The penalties for any breach are contained in the Fisheries (Amendment) Act 1978. It repeals earlier regulations made in 1994 and 1995 wherein an identical definition of drift net appeared and wherein extra territorial application was provided for. It does not purport to bring within it’s ban any other type of net, and in particular any other net which is not free to drift or move according to wind and tide. Nor does it expressly state that when an infringement of the Order occurs, it is by reference to exclusive fishery limits, be it either inside or outside of same.
34. The effect of the Irish instrument is to give the Minister power to create an indictable offence on the High Seas without primary legislation. Whether such a substantial measure can be effected by means of Statutory Regulation is a consideration to which I will now turn.
Implementation by Statutory Instrument
35. Article 249 EC provides:-
“In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.
A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”
36. Article 10 EC provides that:-
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community tasks.”
37. While Community Regulations are directly applicable, they may nonetheless require the making of detailed rules by a Member State to make them effective and this is done by some act or measure of implementation.
38. Under Article 29.4.3, introduced by the third amendment to the Constitution in 1972, it was provided that “The State (might) become a member of the European Economic Community”. Article 29.4 paragraphs 3, 4, and 5, respectively authorised the State by means of successive constitutional amendments to ratify the Single European Act in 1987, the Treaty on European Union (The Maastricht Treaty) in 1992 and the Treaty of Amsterdam in 1997.
39. Article 29.4.7 provides:-
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities (including the European Economic Community) or prevents laws enacted, acts done or measures adopted by the European Union or the Communities or by the institutions thereof, or by bodies competent under the treaties established in the Communities, from having the force of law in the State.”
40. Article 15.2.1. of the Constitution provides:-
“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”.
41. Article 6 of the Constitution recognises the tripartite separation of legislative, executive and judicial powers.
42. Against this Community and Constitutional backdrop, one must then consider the relevant provisions of the European Communities Act 1972 which is a conduit pipe through which Community law may be rendered into domestic law.
43. Described as “An Act to make provision with respect to membership of the State of the European Communities” , it contains the following provisions:-
“2 From the first day of January 1973 the Treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those Treaties.
3(i) A Minister of State may make regulations for enabling Section 2 of this Act to have full effect
(ii) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to theMinister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(iii) Regulations under this section shall not create an indictable offence”
44. As it is a matter of some importance in this case, I also propose to set out fully the relevant parts of Section 4 of the European Communities Act 1972 as substituted by the European Communities (Amendment) Act 1973:-
“(1) (a) Regulations under this Act shall have statutory effect
(b) If the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect, but without prejudice to the validity of anything previously done thereunder.”
45. This Section replaced the corresponding section of the 1972 Act which provided that regulations under that Act should have statutory effect but, unless confirmed by Act of the Oireachtas passed within six months after they are made, they should cease to have statutory effect on the expiration of that period, without prejudice however to the validity of anything previously done thereunder. The amendment thus watered down but nonetheless preserved an important element of parliamentary supervision over regulations made under the 1972 Act.
46. The essential issue therefore when Community law is being transposed is to determine the circumstances in which Ministerial Regulation, rather than primary legislation, may be resorted to for that purpose, and where it is permissible, to examine if the mode of implementation complies with the requirements of domestic law.
47. Under Irish constitutional principles, ministerial regulations cannot make new law and are permitted only to give effect to the principles and policies contained in the parent Act under which they are adopted. They may not repeal or amend legislation. They may not go beyond the four walls of the particular Act. The parameters were defined by O’Higgins CJ in Cityview Press Limited-v-An Chomhairle Oiliuna (1980) IR 381 (at p399):-
“In the view of this Court the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
48. In Meagher-v-The Minister for Agriculture and Food (1994) 1IR 329 it was held by the Supreme Court that Section 3 of the 1972 Act was not invalid having regard to the provisions of the Constitution. In that case, and in the later case of Maher-v-The Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481, the appropriateness of effecting transposition by Ministerial Regulation rather than primary legislation was considered in great detail.
49. In the Maher case, the Supreme Court held, inter alia as follows:-
(1) The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures. In the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question; however, by virtue of the direct applicability of the measure empowering the Member State to take the national measures in question, the national Courts can ascertain whether such national measures are in accordance with the content of the Community Regulation (Eridania-v-Minister of Agriculture and Forestry (Case 230/78) (1979) ECR 2749 applied).
(2) The fact that it may be convenient or desirable to transpose a Community measure into Irish law in the form of a Regulation rather than an Act of the Oireachtas is not of itself a sufficient reason for concluding that the regulation is necessitated by the obligations of membership of the European Union or of the Communities within the meaning of Article 29.4.7 of the Constitution. Where no policy choices are left to the Member State, expedition is one of the factors which may legitimately be taken into account in deciding to opt for the making of a regulation rather than the enactment of primary legislation, but it does not justify such a decision in the case of every directive or EU Regulation.
50. In the instant case, both sides agree that the use of a statutory instrument, rather than an Act of the Oireachtas, as the vehicle for making the detailed rules was not necessitated by the obligations of membership of the European Union, so that the transposing measure in the instant case is not immune from Constitutional scrutiny. In considering whether the regulations in the Maher case infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1. of the Constitution the Supreme Court held that the “principles and policies test” provides the basis for deciding whether a given legislative act abdicates the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution. The Court further held that the principles and policies test is capable of being applied by the Irish Courts without any conflict with Community law, being a test designed to protect the democratic basis of government, a principle that finds expression in Community law. Thus the Court also held:-
(3) Where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, the implementation of such a provision by means of Ministerial Regulation is not invalid having regard to Article 15.2.1 of the Constitution. The force of Article 15.2.1 is preserved for cases where such an obligation does not exist. The principles and policies test applies mutatis mutandis where the delegated legislation represents an exercise of power or discretion arising from Community secondary legislation. It applies with particular clarity to the case of directives in respect of which Article 249 EC leaves the choice of form and methods to the Member States. Although Community Regulations are directly applicable without the need for national implementing measures, the principles and policies test is applicable where such regulations leave open a range of choices. Each case must be decided on its own merits. The mere existence of a Community Regulation implies a Community policy. Article 253 EC obliges the Community legislature to state in such Acts “the reasons on which they are based”. Member States implementing measures come inherently within the scope of such a stated policy. However, the choices left to the Member States may be of such significance in their nature or scope or so unconnected with Community policies and aims that primary legislation would be required to transpose the Community measure into Irish law and, if regulations were to be used, such would be invalid having regard to Article 15.2.1 of the Constitution.
51. On behalf of the applicant, Mr McGuinness points out that in the instant case the Minister is not exercising any power in pursuance of Section 3 of the Act of 1972. Instead, the Minister is purportedly acting in pursuance of a power granted to him by the Oireachtas under Section 223A of the Act of 1959 as amended. This, it is submitted, clearly brings it within the scope of Article 15.2.1 and the principles and policies test laid down by the Supreme Court. On any application of this test, he submits, it could not be said that the Oireachtas was intending to delegate to the Minister:-
(a) A power to implement any measure of Community law from whatever treaty source arising.
(b) A power to create an alternative but silent means of implementation thereby implicitly authorising a by-pass of the existing methods by which the Minister might have properly sought to implement any such European based obligation.
(c) A power to extend the criminal jurisdiction of the State by the creation of an indictable offence which might be committed anywhere on the high seas in the world.
(d) A power to prescribe conservation measures not limited to the exclusive fishery limits of the State.
52. He further submits that the mere fact that Ireland may have been required to introduce the ban on drift net fishing contained in the Council Regulation does not exempt Ireland from proceeding to do so in a lawful manner in accordance with the requirements of its own constitutional and statutory procedures. Thus, it is submitted, even if the substance of the measure contained in SI 267 is considered to be necessitated, it does not and cannot satisfy the Irish requirements that for such implementation to be effective in terms of the enforcement of a criminal law, there must be a clear and demonstrable assumption of jurisdiction by the State both in terms of the extension of the area within which it purports to exercise its jurisdiction and a clear criminalisation of the conduct in respect of which it wishes to exercise that jurisdiction, neither of which it is submitted are present in the instant case. Accordingly, he submits, that as the decision in Maher intended to allow for the scrutiny of a domestic implementation measure in relation to something which is not necessitated as to the mode of implementation and extends even to measures which are held to be necessitated as to their mode of implementation, it is submitted that SI 267 on any application of the principles and policies criteria, having regard to Article 15 and Section 223A, fails that test, and that the said Regulations are accordingly ultra vires the Minister. Alternatively, if Section 223A, contrary to the foregoing submission, is interpreted so as to authorise the Minister to do what he has purported to do, it is submitted that such would be a delegation of the law making power of the State contrary to Article 15.2.1 and the section itself would be unconstitutional as being in contravention of the said provision.
53. In reply Mr Charleton on behalf of the respondents submitted that Section 223A must be examined on its own terms. In particular, he submitted, that the reference to “provisions applicable to exclusive fishery limits of the State” in the heading of that part of the Act in which Section 223A is to be found should be ignored when interpreting its provisions. It was not open to the Minister in this instance to avail of Section 3 of the European Communities Act 1972, or Section 224B of the Fisheries Amendment Act, but that did not preclude him from availing of another Section of the Fisheries (Consolidation) Act 1959 whereunder an appropriate Order might be made.
54. He submitted that the particular provision of Community law imposed obligations on the State which left no room for choice so that Article 15.2.1 of the Constitution could not be said to have been infringed by the use of a Ministerial Regulation in order to implement it. He further asserted that, for the purpose of applying the principles and policies test, the Community Regulations stood in the place of an Act of the Oireachtas. As in the Maher case, the instant case involved no more than the adoption of measures for the purpose of giving effect to a Community Regulation which is directly applicable in Irish law without the necessity for enacting domestic legislation.
55. Having considered these principles and submissions, a sequential question and answer process suggests itself as the appropriate method of testing whether or not a valid transposition has taken place.
56. The first question in such a process is to inquire, given that regulations are directly applicable, whether some additional measure was necessitated by the obligations of membership of the EU.
57. As Keane CJ states in Maher-v-Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481 at p516:-
“It follows that, in the present case, the first inquiry must be as to whether the implementation of the EC Regulations by legislation, whether in primary or secondary form, was necessitated by the obligations of Membership within the meaning of Article 29.4.7 of the Constitution.”
58. As in that case, it is clear that here legislation in some form was necessary. Article 31 of Title VIII of Council Regulation (EC) 2847/93 of 12 October 1993 and Article 6 of Council Regulation (EC) 1239/98 of 8 June 1998 required Member States to ensure appropriate measures were put in place for the purposes of respecting the Common Fisheries Policy.
59. The second question in such a process is to inquire whether the form of implementation adopted was necessitated as an obligation of membership. Given that Community law is ‘indifferent’ as to the manner of implementation (subject to Community law principles of equivalence and effectiveness), such a test may be appropriately seen as a ‘practical necessity’ test. Quite obviously if all transposition measures were required to be implemented by primary legislation, the State could simply not discharge its law-making obligations as a Member State. In any case of urgency, therefore, a ‘practical necessity’ test might demand implementation by regulation although ‘expediency’ in this sense does not appear to have found approval in the Maher decision, other than as a factor to be taken into account. Both sides in the instant case are agreed however that the form of measure adopted was not necessitated as an obligation of Membership.
60. Next one must inquire if the Community law to be transposed sets out the principles and policies to such a degree as to obviate the requirement for domestic primary legislation. This involves a consideration of the content and substance of the measure to enable the Court form a view as to the propriety of any attempt to carry it into effect in domestic law by regulation only. If significant policy choices or decisions are left to the Member State, then, as the decision of the Supreme Court in Maher makes clear, primary legislation is required.
61. The policy behind the said legislation, Title VIII of Council Regulation (EC) 2847/93 is to establish a control system for the Common Fisheries Policy. To this end Member States are to use either criminal proceedings or administrative action so as to deprive offenders of the economic benefits of their infringements of the policy. Such sanctions as fines, seizure of prohibited fishing gear, sequestration of the vessel and suspensions or withdrawal of a licence are envisaged under the Regulation.
62. Council Regulation (EC) 1239/98 of 8 June 1998 provided that no vessel may keep on board or use for fishing one or more drift nets of more than 2.5 km in length intended for the capture of most species of tuna and highly migratory fish. The policy is that if these obligations were not complied with that the competent authorities are to take appropriate measures in respect of the vessels concerned.
63. Turning to the Irish implementing measure, SI 267/1998 provides that no vessel is to keep on board or use for fishing one or more drift nets whose individual length is more than 2.5 km. There is no suggestion that any area of policy has been left to the Member State or that SI 267/98 purported to address any additional policy consideration or to adopt enforcement measures that went beyond anything contemplated in the EC Regulations. The clear intention of the Community law is to achieve the abolition of drift net fishing for tuna and to progressively remove certain derogations which existed during the 1990’s. Mr McGuinness argues that to leave to Member States the decision or choice whether to impose administrative or criminal sanctions by way of enforcement is an important discretion and policy consideration. In reality, he submits, it was the only matter addressed in the transposition process, the EC Regulation being otherwise directly applicable. However, in my view, a choice between different enforcement measures does not represent a significant reservation of policy, given that the EC Regulations cited quite clearly require that effective sanctions be put in place. In my view the choice by the Minister of Regulation was constitutionally permissible, subject only to the requirement that it be carried into effect in a constitutional fashion.
64. The fourth question therefore relates to the mode of implementation into domestic law. Did the use of SI 267/98, as to its mode of implementation, amount to a violation of Article 15.2.1 of the Constitution or otherwise amount to an ultra vires exercise of power by the Minister?
65. In my view, it did for a variety of reasons.
66. Unlike the Maher case, Section 3 of the European Communities Act, 1972 was not availed of for the transposition. Instead, the Fisheries (Consolidation) Act 1959 was the chosen vehicle. The reasons why the Minister adopted this vehicle have already been referred to. However, an immediate difficulty at once arises insofar as the application of the “principles and policies” test is concerned. In Maher, the intervening parent Act, the European Communities Act, 1972 was identified as containing no general statements of principle or policy. From the point of this consideration, the Act is a conduit pipe, nothing more, nothing less. Accordingly, in Maher the EC Regulation could be looked at as the true ‘parent Act’ to ascertain if it contained the requisite statement of principles and policies sufficient to obviate the need for primary domestic legislation.
67. In this case, however, the Minister chose to ‘adopt’ as a parent Act the Fisheries (Consolidation) Act, 1959, and a section thereof, which is clearly not designed for transposition purposes. The Fisheries Acts 1959 – 1994 contain many principles and policies but not the principles and policies of these EC Regulations. That is, they do not purport to regulate for a ban on the use of drift nets of a certain length, nor do they aim to further the Common Fisheries Policy. The law regulating fish net sizes is not laid down in the Fisheries Acts, 1959 – 1994, with only the details being filled in or completed by the Respondent in SI 267/1998. The rules contained in SI 267/1998 do not give effect to principles and policies of the Fisheries Acts themselves, but constitute a completely new addition thereto.
68. A fundamental principle of the rule of law is the principle of legality whereby every executive or administrative act which affects legal rights, interests or legitimate expectations must be legally justified. This may be achieved by demonstrating that the measure in question meets the principles and policies test, but the Respondent in this case has not in my view shown that he had such legal authority by reference to the wording of the Fisheries Acts to make SI 267/98 and accordingly must be held to have acted ultra vires as to the mode of implementation of the EC Regulation.
69. I also accept Mr McGuinness’s submission that it cannot be said that the Oireachtas were intending to delegate to the Respondent a power to implement any measure of EU law from whatever treaty source arising or to delegate a power creating an alternative but silent EU power of implementation. The Oireachtas cannot be said to have thereby implicitly authorised a by-pass of existing methods by which the Respondents might have properly sought to implement any such European based obligation.
70. It also seems to me that the clear implication to be drawn from Section 3 (3) of the European Communities Act 1972 (which provides that no regulations can be made under the Act to create an indictable offence) is that primary legislation is required where it is intended to create an indictable offence. If regulations under the “conduit pipe” for transposing European legislation cannot create an indictable offence, it seems to me virtually impossible to argue that delegated legislation made under a national statute can do so.
71. In any event the Irish regulation does not expressly prescribe that an infringement of Article 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to an earlier Order, SI 201/1994. It does not define the area of application of the requirement to comply with Article 11, 11 (A) and 11(B) of the Council Regulation and must therefore be presumed to have been intended to prohibit only that which it was within the jurisdiction of the State to prohibit i.e. one within territorial seas comprised by Section 2 of the 1959 Act or within the exclusive fishery limits of the State as fixed by Section 6 of the Maritime Jurisdiction Act 1959. It does not purport to give effect to Article 11 (c) of the Regulations so as to amend the criminal jurisdiction of the State as described above or to extend it on a world wide basis to the high seas. I accept Mr McGuinness’s submission that it is a fundamental principle of criminal law that there must be certainty as to the existence of an offence, its definition and the State’s jurisdiction in relation to an alleged commission of the offence. The Court cannot presume from an ambiguous provision that criminal liability to trial, conviction and punishment has been imposed by means of interpretation only. (See King -v- A.G 1981 IR 223 and A.G. -v- Cunningham (1932) IR 28).
72. The mode of implementation adopted, it seems to me, also offends Article 15.2.1 in another undesirable manner, a manner in which it perhaps also offends Article 6 of the Constitution, where its effect is to dis-apply S.4 of the European Communities Act, 1972.
73. The European Communities Act, 1972 is an example of one of the few instances where by virtue of S.4 thereof, there is a functioning scrutiny of delegated legislation by the Dáil and Seanad. As O’Higgins CJ states in the Cityview Press case at pp 398 – 399:-
“…sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulating or order-making process provides that any Regulation or Order made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. It is, therefore a safeguard …”
74. The Court continued: “Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power neither contemplated nor permitted by the Constitution.”
75. Section 4 of the European Communities Act, 1972 devolves an important supervisory and monitoring function upon the Dail and the Seanad in respect of regulations put in place under that Act whereby they may be annulled by resolution of the two Houses. In by-passing that Act, as has occurred in this case, the Minister has stripped away that element of parliamentary supervision of the measure adopted and has undoubtedly contributed to what has been sometimes described as a “democratic deficit” in the important area of transposition of Community law into domestic law. In effect the Regulation “repeals” S. 4. insofar as the implementing measure itself is concerned. As only regulations under the 1972 Act have statutory effect, a de facto repeal of a statutory provision by a regulation made under another Act must be seen as impermissible for that reason also.
76. For these reasons I conclude and hold that the purported transposition was ultra vires in that SI 267/98 infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution.
Remaining Issues
77. While Mr Charleton contended that this was a ‘one issue’ case (i.e. about transposition), I should nonetheless make findings on the other points canvassed on their separate merits in case the matter may be taken further. A challenge in this case was made to the powers of Sea Fishery Protection Officers. Given that in the instant case, the Sea Fishery Protection Officer detained the vessel and all persons on board suspecting there had been a contravention of the provisions of Chapter II of Part XIII of the Sea Fisheries (Consolidation) Act 1959, his power to do so necessarily depends upon the validity of SI 267/1998, which I have found to be ultra vires the power of the Minister.
78. That said, Sea Fishery Protection Officers are granted special powers under Section 233 of the Fisheries (Consolidation) Act 1959, both within the exclusive fishery limits of the State and, subject to the rules of international law, outside those limits in a variety of respects.
79. There is no question but that an Irish registered vessel is subject to the criminal jurisdiction of the Irish Courts and numerous examples have been cited to demonstrate how the legislature can pass laws having extra-territorial effect, including the Merchant Shipping Act, 1894, the Air Navigation and Transport Act, 1973 and, indeed, the Fisheries (Consolidation) Act 1959. I am therefore making no finding which would impugn the powers of Sea Fishery Protection Officers other than in respect of the particular offence in respect of which the Applicant’s vessel was detained in the instant case.
80. Insofar as the various Orders of the district judge are concerned, I also accept Mr Charleton’s submissions that these Orders are now spent.
81. An issue also arose as to whether bottom set or anchor fixed gill nets on board the S-V “Antonia” did or did not constitute drift nets for the purposes of SI 267/1998. Mr McGuinness submits that the Sea Fisheries (Gill Net, Tuna and certain other Species of Fishing) Order 2001 (S. I. 226/2001) introduced a new definition, a more comprehensive definition, in recognition of the “deficiencies” in the earlier regulation, when it substituted for drift nets a definition of gill nets as follows:-
“Any type of gill nets, drift nets, bottom set gill nets, trammel nets and entangling nets”
82. This may well be a most persuasive basis for suggesting there may have been deficiencies in the definition contained in SI 267/1998, but the resolution of that issue is clearly within the jurisdiction of the trial judge in any given case and Mr. Charleton submits that seeking relief by judicial review is inappropriate in respect of what is essentially an issue of fact.
83. Mr Charleton referred to Blanchfield -v- Harnett (2001) 1 ILRM 193 where, albeit in a somewhat different situation (when an issue arose as to the admissibility of evidence), O’Neill J stated (at p205):-
“Where it is alleged that evidence has been obtained illegally the question of whether or not such is the case, i.e whether an illegality has occurred is one solely for the trial judge and following upon that whether or not the evidence should be admitted is again one solely for the discretion of the trial judge, a discretion to be exercised in accordance with law. In my view the principle of regularity of judicial proceedings requires that all questions relevant to the determination of such issues rests with the trial judge. Otherwise trials would be suspended for lengthy periods while such issues were litigated in other Courts, a practice wholly condemned by the Supreme Court in the case of People (Attorney General) -v- McGlynn (1967) IR 232 where at p239 the following was said by Ó Dálaigh CJ:-
“The nature of a criminal trial by jury is that once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be reassessed in the middle of trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
84. While ‘trial context’ and ‘admissibility issues’ are not in point in the present case, the learned judge however continued:-
“In reference to this quote, O’Flaherty J in DPP -v- Special Criminal Court (1999) 1 IR 60 said the following:-
‘While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practical, be followed in respect of all criminal trials subject to the jurisdiction of Courts to grant cases stated on occasion.’
Further on in this judgment O’Flaherty J added the following:
‘I would endorse everything that Carney J said about the undesirability of people repairing to the High Court for a judicial review in relation to criminal trials at any stage (and certainly not during their currency)’
In my view therefore, the exclusive jurisdiction of trial judges to determine issues as to the admissibility of evidence is right in principle being consistent with the regularity of judicial proceedings, a fact which is abundantly supported by authority.”
85. On the material brought before this Court, certain factual matters have not yet been determined. For example, can a gill net which is capable of being used as a bottom set or anchor-fixed net, nonetheless be utilised and be therefore regarded as a drift net and thus infringe the law? It seems to me that a ruling on such an issue can only be made once the factual material has been clearly established, and this quintessentially falls within the remit of the trial Court. It is a matter arising out of the charge or indictment, so I hold in favour of Mr. Charleton on this point.
Leontjava v DPP and Chang v DPP
[2004] 1 I.R. 591
D.P.P. & Anor v. Leontjava [2004] IESC 37 (23 June 2004)
THE SUPREME COURT
Keane C.J.
Murray J.
McGuinness J.
Fennelly J.
McCracken J.
39 & 53/04
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS,
IRELAND AND THE ATTORNEY GENERAL
APPELLANTS
AND
ILONA LEONTJAVA
RESPONDENT
AND
DISTRICT JUDGE MARY COLLINS
AND DISTRICT JUDGE BROPHY
NOTICE PARTIES
[1. Judgment of the Court delivered by Keane C.J. on Constitutional issue. 2. Judgments delivered by Keane C.J. & Fennelly J. All members of the Court concurred with Keane C.J. Fennelly J. dissenting on point of detail as to power conferred by S. 5(i) to made Orders. Murray J. agreed with Fennelly J. on this point.]
JUDGMENT of the Court delivered pursuant to Article 34.4.5º of the Constitution on the 23rd day of June, 2004, by Keane C.J.
Introduction
This is the judgment of the court on the claim by the respondent that s. 2 of the Immigration Act, 1999 (hereafter “the 1999 Act”) is invalid having regard to the provisions of the Constitution. The factual background to the proceedings is fully set out in the judgments already delivered on the other issues arising in the proceedings.
As already noted, the provision in question was enacted following the decision of the majority of this court in Laurentiu –v- Minister for Justice [1999] 4 IR 26 that s. 5(1)(e) of the Aliens Act, 1935 (hereafter “the 1935 Act”) was inconsistent with Article 15.2.1º of the Constitution and had not survived its enactment. It provides that
“(1) Every order made before the passing of this Act under s. 5 of [the 1935 Act] other than the orders or provisions of orders specified in the Schedule to this Act shall have statutory effect as if it were an Act of the Oireachtas.
(2) If sub-section (1) would, but for this sub-section, conflict with the constitutional right of any person, the operation of that sub-section shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.”
The Schedule is in the following terms:
“SCHEDULE
Article 13 of the Aliens Order, 1946 (S.R. & O., No. 395 of 1946).
Aliens (Visas) Order, 1999 (S.I. No. 25 of 1999).”
In her judgment, the learned trial judge, having noted that the provision benefits from the presumption of constitutionality, identified the primary challenge on behalf of the respondent to it as follows:
“… it purports to give to the substantive provisions of the Aliens Order, 1946 (other than Article 13) legal status as if in an Act of the Oireachtas without such provisions being contained in a Bill initiated and passed or deemed to have been passed by both Houses of the Oireachtas in accordance with Article 20 and without being contained in a Bill signed by the President, promulgated as a law, the text of which is enrolled in the Supreme Court in accordance with Article 25 and without such provisions having been capable of being referred by the President to the Supreme Court in accordance with Article 26.”
She went on to refer to authorities relied on on behalf of the Attorney General, i.e. McDaid –v- Judge Sheehy [1991] 1 IR 1 and an ex-tempore judgment by Abbott J. in the High Court in H.K. –v- Garda Commission & Ors (unreported; judgment delivered 27th March, 2003). She considered the former decision as distinguishable on two grounds, i.e. that no issue arose as to the constitutionality of the provision under challenge in that case and that, in any event, the arguments addressed to the High Court and in this court in the instant case were not addressed to either court in that case. As to the second authority, the trial judge said that she took a different view from that adopted by Abbott J. in that case.
The trial judge went on to find that, while the sole and exclusive power of making laws for the State was vested in the Oireachtas by Article 15.2, this was a power which was “procedurally constrained” and could only be exercised by the enactment by the Oireachtas of an Act, initiated as a Bill, which was then passed or deemed to be passed by both Houses and signed by the President and promulgated as a law. She said that this conclusion followed from the provisions of Article 15.2, Article 20 and Articles 25.1, 25.4.1º, 25.4.2º, 25.4.3º and 25.4.5º.
The trial judge said that there did not appear to her to be anything in the Constitution which authorised or permitted the Oireachtas to determine that a provision which was and continued to be secondary legislation made by a person other than the Oireachtas should thenceforth be treated in the legal order of the State as if it were an Act of the Oireachtas. She was of the view that the only provisions which could be treated as a “law” within the meaning of Article 15 and have the legal status attributable to such a law were laws consisting of provisions contained in a Bill passed or deemed to be passed by both Houses, signed by the President and promulgated as a law. She was also of the view that the nature of this constitutional scheme was further confirmed by the reference procedure provided for in Article 26.1.1º, since the Aliens Order, 1946 not being a “specified provision” of the Bill when it was passed by both Houses of the Oireachtas could not be regarded as a “specific provision” within the meaning of Article 26.1.1º of the Constitution and, accordingly, could not be referred by the President to this court for an opinion as to its constitutionality.
The trial judge, accordingly, concluded that s. 2 of the 1999 Act was invalid having regard to the provisions of the Constitution. From that decision, the appellants have now appealed to this court.
Submissions of the parties
On behalf of the appellants, Mr. Paul Gallagher S.C. submitted that, since the Oireachtas had the sole and exclusive law-making power in the State pursuant to Article 15.2.1º of the Constitution, it followed that it had power to provide by legislation that any provision of the common law or of a statutory instrument should have the force of statute. That was, he said, the exercise by the Oireachtas of a decision with regard to what would or would not constitute law or have the force of law within the State: it was the 1999 Act which gave the relevant orders the force of statute.
Mr. Gallagher further submitted that the conclusions of the trial judge failed to take account of the constitutionally mandated separation of powers between the legislature, the executive and the courts. There was no express prohibition in any of the constitutional provisions referred to by the trial judge which prevented the enactment of legislation of this nature and any implied prohibition would be inconsistent with the express terms of Article 15.2.1º.
Mr. Gallagher further submitted that the form or style of any legislation was exclusively a matter for the Oireachtas, while the validity of any such law was a matter for the High Court and, on appeal, the Supreme Court. The form which legislation took was peculiarly a matter for decision by the Oireachtas which, if dissatisfied with any aspect of a Bill initiated in either House, could amend or reject the Bill.
It was not surprising that the Constitution did not spell out in detail the form which legislation might take, since that would be inappropriate in a document such as a written constitution: he cited in support the observations of Marshall C.J. in McCulloch –v- Maryland (17 U.S. 316) (1819).
Mr. Gallagher said that the 1999 Act followed in its entirety the procedure prescribed by the Constitution for the passing of a Bill by both Houses of the Oireachtas, its signature by the President and its promulgation by her as a law.
In support of his submissions as to the significance in our law of the separation of powers enjoined by the Constitution, Mr. Gallagher referred to the decisions of this court in Boland –v- An Taoiseach [1974] IR 338, Attorney General –v- Hamilton (No. 1) [1993] 2 IR 250, Sinnott –v- Minister for Education [2001] 2 IR 545 and T.D. –v- Minister for Education [2001] 4 IR 259.
Mr. Gallagher further submitted that the trial judge appeared to have proceeded on the erroneous assumption that the Oireachtas had allowed a subordinate body, i.e. the Minister for Justice, to usurp its law-making role and that the Oireachtas was unaware of, or did not engage in a proper review of, the orders to which it gave legislative approval. He submitted that there was no warrant for the assumption that the Oireachtas had merely “rubberstamped” the legislation of a subordinate body, citing in this context the decision of this court in McDaid –v- Judge Sheehy that the Oireachtas was entitled to give statutory effect to a number of orders specified in the Schedule which were not set out in the Act itself.
Mr. Gallagher further submitted that the trial judge was in error in treating a “law” within the meaning of the relevant provisions of the Constitution as being a Bill passed or deemed to have been passed by both Houses and signed by the President. He said it was clear that statutory instruments validly made subsequent to the enactment of the Constitution constituted a “law” for the purposes of Article 15.4 of the Constitution, citing the decision of this court in The State (Gilliand) –v- Governor of Mountjoy Prison [1987] IR 2001.
Mr. Gallagher further submitted that, while this was certainly an instance of “legislation by reference”, that was a perfectly normal and accepted method of legislation, of which many examples were to be found, including, in particular, statutes giving effect in domestic law to international conventions, the text of which was sometimes, but not always, set out in a schedule to the Act. In some cases, he pointed out, it was made clear by the enactment that the text of the Convention was merely set out “for convenience of reference” in a schedule.
Mr. Gallagher further submitted that the power of the President to refer a specified provision of a bill was left unaffected by the form that this legislation took: there was nothing whatever to prevent the President from referring s. 2(1) of the 1999 Bill to this court as “a specified provision” of the Bill, if she was of the opinion that any one or more of the orders thereby given statutory force were invalid having regard to the provisions of the Constitution.
On behalf of the respondent, Mr. Gerard Hogan S.C. submitted that a number of consequences would follow, if the submissions advanced on behalf of the Appellants were correct, which could not be reconciled with the procedures established under the Constitution for the enactment of legislation by the Oireachtas. The statutory instrument to which validity would be given would be no longer dependant on a parent act for its status and could not be challenged on grounds such as ultra vires. Nor could it be invalidated on the ground that it was an unreasonable exercise of a statutory discretion on the part of the Minister who promulgated it, as had happened in Cassidy –v- Minister for Industry & Commerce [1978] IR 297 and Doyle –v- An Taoiseach [1986] ILRM 693. Moreover, the 1946 Order would now enjoy the presumption of constitutionality based on the respect which one great organ of government owes to another organ, although the rational basis for this presumption, i.e. the progress of the enactment in the ordinary way through both Houses of the Oireachtas, did not exist. Nor would the customary annulment powers conferred on the Oireachtas in respect of statutory instruments be available in the case of the 1999 Act. The giving of statutory force to the 1946 Order, if valid, would also have the effect of impliedly repealing s. 5(7) of the 1935 Act entitling the Minister to revoke or amend an Aliens Order.
Mr. Hogan submitted that all these consequences were entirely at odds with the framework for the enactment of legislation ordained by the Constitution and which necessitated the due consideration by the Houses of the Oireachtas of draft legislation before it became law.
Mr. Hogan further submitted that The State (Gilliand) –v- Governor of Mountjoy Prison relied on by the Appellant was solely concerned with the interpretation of the word “law” as it appeared in Article 40.4.3º and Article 34.4.5º and that it had nothing to say to the contention advanced on behalf of the Appellant in this case that the legislative function of the Oireachtas could be carried out in the mode adopted in s. 2 of the 1999 Act.
Mr. Hogan further submitted that the Appellant’s argument did not derive any support from legislation which gave effect in domestic law to international conventions. They were in an entirely different category from subordinate legislation such as the 1946 Order and had been the subject of a specific international machinery before attaining the status of a convention.
Mr. Hogan urged that, while it was accepted on behalf of the respondent that the President could have referred s. 2(1) of the Immigration Bill, 1999 to the court pursuant to Article 26.1.1º, it was also the case that the Aliens Order, 1946 could not have been referred to the Supreme Court by the President at the date when that Bill was presented to her for her signature. It followed, he said, that s. 2(1) was unconstitutional to the extent that it empowered the Oireachtas to give a statutory instrument the same effect as an act of the Oireachtas, even though it could not have been referred by the President under Article 26. That was clearly to circumvent the safeguards contained in the Article 26 procedure. He further submitted that the Aliens Order, 1946, could not have been the subject of an Article 26 reference by the President, since it was not a “provision” of such a Bill.
Mr. Hogan further submitted that the fact that there was no express prohibition in the Constitution of legislation of this nature was immaterial. The same could be said of the absence of an express prohibition of the enactment of laws interfering with pending litigation, the extension of the voting franchise for Dáil elections or the disclosure in all circumstances of cabinet discussions, although in each instance – Buckley –v- Attorney General [1950] IR 67, Re. Article 26 of the Electoral (Amendment) Bill, 1983 [1984] IR 268 and Attorney General –v- Hamilton (No. 1) [1992] 2 IR 250 – this court found that there was an implied prohibition derived from the structure and language of the Constitution. If the approach urged on behalf of the appellants were to be adopted, it might be said that the mere fact that the Constitution did not prohibit the President from exercising a form of veto over legislation was a ground for supposing such a power to exist. Similarly, the absence of a prohibition might, on that view, mean that there was nothing to prevent legislation taking the form of a resolution of one House. The fact that Marshall C.J. in McCulloch –v- Maryland outlined the necessarily general and non-specific nature of a Constitution merely lent weight to the proposition that there were many matters prohibited by implication by the Constitution rather than supporting the arguments on behalf of the appellants.
The applicable law
Two principles relevant to the determination of the issue arising on this appeal have been clearly laid down in a number of decisions of this court. First, when the court has to consider the constitutionality of an Act passed by the Oireachtas, it must be presumed to be constitutional unless and until the contrary is clearly established. Secondly, where, in respect of the provision in question, two or more constructions are reasonably open, one of which is constitutional and the others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be constitutionally invalid.
Article 15.2.1º of the Constitution provides that
“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.”
Article 20 provides inter alia that
“1. Every Bill initiated and passed by Dáil Éireann shall be sent to Seanad Éireann and may, unless it be a Money Bill, be amended in Seanad Éireann and Dáil Éireann shall consider any such amendment. …
3. A Bill passed by either House and accepted by the other house shall be deemed to have been passed by both Houses.
Article 25 provides inter alia that
“1. As soon as any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, shall have been passed or deemed to have been passed by both houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this Article …
4.1º Every Bill shall become and be law as and from the day on which it is signed by the President under this Constitution and shall, unless the contrary intention appears, come into operation on that day.
2º. Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiuil stating that the Bill has become law …
3º. Every Bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both Houses of the Oireachtas …
5º. As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the President or, where the President has signed the text of such law in each of the official languages, both the signed texts shall be enrolled for record in the office of the Registrar of the Supreme Court and the text, or both the texts, so enrolled shall be conclusive evidence of the provisions of such law.”
While Article 11.1 provides that all questions in each House are, save as otherwise provided by the Constitution, to be determined by a majority of the votes of the members present and voting other than the Chairman, there is a notable absence of any detailed requirements as to the form which legislation is to take or the manner in which legislation is to be dealt with by either House. Subject to the overriding prohibition on the enactment of unconstitutional legislation contained in Article 15.4, it was clearly envisaged that the Oireachtas were to be their own masters so far as both the substance and form of the legislation were concerned. This approach is also reflected in Article 15.10 providing that
“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement …”
This is also in accord with the celebrated characterisation of the nature of a written constitution in the judgment of Marshall C.J. in McCulloch –v- Maryland:
“A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outline should be marked, its important objects designated and minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument but from the language …In considering this question, then, we must never forget that it is a Constitution we are expounding.”
This passage has been expressly approved of by this court: see the judgment of O’Flaherty J. in Riordan –v- An Tanaiste [1997] 3 I.R. 502 at p. 508.
Thus, none of the details of the legislative process in each house – the first and second reading, the committee stage and the report stage – achieve even a mention. The role of political parties and of the leader of the opposition, the committee system and the distinctions between public and private bills, government bills and bills initiated by deputies or senators, are nowhere mentioned. It was obviously envisaged by the framers of the Constitution that, as in 1922, all these matters could be left to be determined by the Oireachtas.
One of the legislative techniques which was in existence in 1937 was the practice of incorporation of provisions in a statute by reference. While, according to the fourth edition of Bennion on Statutory Interpretation, at p. 648, the incorporation by reference of earlier statutory provisions has attracted much judicial criticism and is less used in the United Kingdom today, its constitutional validity in this jurisdiction has never been questioned. The learned author also refers (at p. 649) to another form of incorporation by reference as follows:
“An enactment sometimes incorporates into the Act a whole body of law as it existed at a given time (‘the relevant date’). This may include the practice prevailing on the relevant date, as well as the substantive law in force at that time … The technique is called archival drafting because it requires persons applying the Act after a considerable period has elapsed since the relevant date to engage in historical research in order to find out what the law thus imported amounts to”.
The practice of incorporation by reference is not peculiar to the United Kingdom or this jurisdiction. In the Canadian decision of R. –v- Sims and Others (2000 B.C.C.A., 437), the Court of Appeal for British Colombia said:
“In legislative drafting, incorporation by reference to an external source is a well recognised, although sometime criticised, device … Material other than statutes may also be incorporated by reference.”
The practice of incorporation by reference has also been adopted in the case of international conventions. An example to which the court was referred was the Jurisdiction of Courts (Maritime Conventions) Act, 1989, s. 4 of which provides that
“(1) Subject to the provisions of this part, the Convention shall have the force of law in the State and judicial notice shall be taken of it.
(2) The text of the convention in the English language is set out for convenience of reference in the First Schedule to this Act.”
Other examples cited in the course of the arguments were the International Carriage of Goods by Road Act, 1990, the Arbitration (International Commercial) Act, 1998 and the Contractual Obligations (Applicable Law) Act, 1991.
Other than in the unreported and ex tempore High Court decision already referred to in which a challenge to the constitutional validity of the provision now under consideration was rejected by Abbott J. the practice of giving statutory force to statutory instruments adopted in this case does not appear to have been the subject of any consideration in any decision. A not dissimilar procedure – of confirming by statute the validity of delegated legislation – came before the High Court, and this court, however, in McDaid –v- Sheehy.
In that case, the applicant had been convicted of an offence of using hydrocarbon oil in the fuel tank of a vehicle in respect of which the relevant excise duty had not been paid. The duty had been imposed under an order purportedly made under s. (1)(d) of the Imposition of Duties Act, 1957. The applicant having sought an order of certiorari by way of judicial review, it was held by Blayney J. in the High Court that the provisions of the Act of 1957 giving the government power to impose customs and excise duties on imported goods constituted an impermissible delegation of the legislative powers of the Oireachtas, as the powers so delegated were more than a mere giving effect to principles and policies contained in the Act itself, there being no policies contained therein. Section 46 of the Finance Act, 1976, however, provided that
“The Orders mentioned in the table to this section are hereby confirmed.”
One of the orders mentioned was the 1975 Order.
Rejecting a submission that s. 46 of the 1976 Act should be interpreted as having no effect, because the 1975 Order was invalid, Blayney J. said
“There can be no doubt that the intention of the Oireachtas was that the Order should be part of the law of the State. The confirmation of the Order was a clear expression of that intention. At the time it was believed that the order was valid but that confirmation was necessary so that it would continue to have statutory force after the end of 1976. It would have ceased to have effect at the end of that year if it were not confirmed. So the intention in confirming it was to give it the status of a permanent statutory provision deriving its validity as from the end of 1976 from s. 46 and it seems to me perfectly reasonable to interpret s. 46 as giving effect to that intention.”
That view of the law was unanimously upheld by this court (Finlay C.J., Griffin J., Hederman J., McCarthy J., and O’Flaherty J.).
A form of legislative incorporation by reference of secondary legislation more akin to the provision under examination in the present case was considered by the House of Lords in Institute of Patent Agents and Others –v- Lockwood (1894) AC 347. The relevant legislation in that case – the Patents, Designs and Trademarks Act, 1883, – enabled the Board of Trade under s. 101 to make general rules regulating the practice of registration under the Act. It further provided that such rules were “to be of the same effect as if they were contained in this Act”. Any such rules were to be laid before both Houses of Parliament and could be annulled by resolution of either House within the specified time, in which case they were to be “of no effect”. A subsequent Act of 1888 which dealt with the registration of persons as patent agents, enabled the Board of Trade to make general rules for giving effect to the section. It further said that
“The provisions of s. 101 of [The Act of 1883] shall apply to all rules so made as if they were made in pursuance of that section.”
The Board of Trade made certain rules which were laid before parliament and which were not annulled within the specified period. The respondent was prosecuted for continuing to practice as a patent agent after his name had been erased for failing to pay the prescribed annual fee. He then contended that the rules in question were ultra vires the powers of the Board of Trade. Lord Herschell LC, having found the rules to be in any event intra vires, went on to consider the effect of the provision that the rules were to be “of the same effect as if they were contained in this Act”. He said
“I own I feel very great difficulty in giving to this provision that they ‘shall be of the same effect as if they were contained in this Act’ any other meaning than this, that you shall for all purposes of construction or obligation or otherwise treat them exactly as if they were in the Act … The words to which I have referred are really meaningless unless they have the effect which I have described and they seem to me to be the apt and appropriate words for bringing about the effect which I have described. They are words, I believe, to be found in legislation only in comparatively recent years and it is difficult to understand why they have been inserted unless with the object I have indicated.”
Finally, the relevant provision of Article 26 of the Constitution, on which the respondent also relied, should be set out. Article 26.1.1º provides that
“The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question of whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof.” (Emphasis added)
Conclusion
Since there is no provision in the Constitution which expressly prohibits the Oireachtas from enacting legislation in the form of s. 2 of the 1999 Act, the onus rested on the respondent to establish clearly that it was invalid having regard to the provisions of the Constitution.
It is beyond argument that, if the provisions of the orders made under the 1935 Act to which the Oireachtas wished to give statutory effect had been set out in extenso in the Act itself, the enactment could not have been successfully challenged on the ground that it was purporting to convert a statutory instrument into an Act of the Oireachtas. The respondent’s case, accordingly, depends on the proposition that the form of incorporation by reference adopted by the Oireachtas in this case was by implication repugnant to the Constitution.
It is manifest from what has already been said that the Constitution affords a strikingly wide latitude to the Oireachtas in adopting whatever form of legislation it considers appropriate in particular cases. Under Article 15 it enjoys the sole and exclusive power of making laws for the state and where, as here, it has expressed its clear and unequivocal intention that particular instruments should have the force of law in the State, it is difficult to see on what basis it can be asserted that it has exceeded or abused its exclusive legislative role. In the view of the court, the choice by the Oireachtas to incorporate the instruments in question by reference rather than by setting out their text verbatim in the body of the Act was one which they were entitled to make, unless it can be clearly established that the result was in conflict with specific provisions of the Constitution.
That conclusion is supported by the decision of the High Court and this Court in McDaid –v- Sheehy. While that was a case in which the secondary legislation was purportedly given statutory effect by a confirming Act rather than by incorporation by reference and the constitutional arguments addressed in this case do not seem to have been advanced, it is clear that Blayney J., in a judgment unanimously upheld in this Court, was satisfied that, where the intention of the Oireachtas to give a particular statutory instrument the force of law in the State was clear, that intention should be given effect to by the courts. Similarly, for the Court in this case to conclude that s. 2 of the 1999 Act should be treated as invalid because it did not set out in extenso the provisions of the relevant Orders, would be to frustrate the clearly and unambiguously expressed intention of the Oireachtas that the provisions in question should be given statutory effect.
As has already been emphasised, there is no prohibition of the practice of incorporation by reference of other instruments in a bill in the Constitution. Nor is there any reason to imply such a prohibition. It cannot be assumed that, because the incorporated provision is not set out in the text of the Act proper, it was not the subject of the appropriate degree of legislative scrutiny before it was passed. Any such assumption would be at variance with the respect which each of the three great organs of State owes to the others: see the judgment of the former Supreme Court in Buckley and Others –v- Attorney General [1950] I.R. 67 at p. 81. The instruments in question were orders which, at the time s. 2 of the 1999 Act was enacted had been made under the 1935 Act and their contents were ascertainable by reference to the officially published texts of the instruments.
The proposition that the requirements of Article 4 as to the signature, promulgation and enrolling of legislation were not complied with because the statutory procedure of incorporation by reference was adopted is, in the view of the court, wholly unsustainable. These articles appear in the Constitution because of the importance of ensuring that an official and authoritative text of every Act passed by the Oireachtas and signed by the President is permanently available in the office of the Registrar of this court. Those requirements have been met in this case and the fact that the enactment incorporates by reference other legal instruments in accordance with well established legislative procedures cannot deprive it of the character of an Act passed by both Houses, signed by the President and duly promulgated and enrolled in accordance with the Constitution.
The case advanced on behalf of the respondent, would, moreover, have the remarkable consequence that the procedure normally adopted for incorporating international conventions by reference would be invalidated in its entirety. As the examples cited demonstrate, the relevant legislation in the case of such conventions typically does no more than provide that they are to have the force of law in the State, subject to whatever modifications are considered necessary. If the respondent’s submissions were well founded, one would expect to find the individual provisions of the convention set out in extenso in the body of the Act itself. As has already been noted, the normal procedure is to set out the English text of the convention (and in at least one case the Irish text) in a schedule, expressly for convenience of reference only. If in any case a dispute arose as to whether the text of the English version of the convention was accurately reproduced in the official volume of statutes published by the stationary office, that dispute could not be resolved by reference to the text of the Act as enrolled in the Office of the Supreme Court: it could only be resolved by reference to the signed and authenticated text of the convention itself as deposited with whichever of the contracting parties is nominated as the depository of the instrument in accordance with normal procedures in public and private international law.
This court cannot accept the proposition that the framers of the Constitution in 1937, while conferring on the Oireachtas the exclusive role of making laws for the State, intended to limit their powers to legislate by prohibiting them from incorporating other instruments, such as secondary legislation and treaties, in an Act and giving them the force of law without setting out their provisions in extenso. As the decision of the House of Lords in Institute of Patent Agents –v- Lockwood demonstrates, that precise form of statutory incorporation by reference was already established towards the end of the nineteenth century and there is nothing in the Constitution to indicate that the choice of the Oireachtas to legislate in that rather than another form was in anyway inhibited.
The court is satisfied that this view of the law is in no way affected by the provisions of Article 26.1.1º enabling the President to refer a Bill to this court for a decision as to whether the Bill or any specified provision or provisions thereof is or are repugnant to the Constitution. If the President, after consultation with the Council of State, was of the view that a reference was desirable because one or more of the provisions contained in the Orders being given statutory effect were of questionable constitutional validity, there was nothing to prevent her from referring s. 2 of the Bill to this court for a decision as to its constitutionality. That would be the reference of a “specified provision” within the meaning of Article 26.1.1º and the fact that only part of the specified provision was, in the view of the President, of questionable validity would not in the slightest degree affect her power to make such a reference. Holders of the office of President have, in the past, referred an entire bill to this court for a decision as to its constitutionality, although it was inconceivable that every single provision in the bill was regarded as of questionable validity: see, for example, Re Article 26 and The Employment Equality Bill [1997] 2 IR 321.
The court is satisfied that the respondent failed to discharge the onus resting on her of establishing clearly that s. 2 of the 1999 Act is invalid having regard to the provisions of the Constitution. The appeal, will, accordingly, be allowed, the Order of the High Court set aside and an order substituted therefor dismissing the respondent’s claim.
THE SUPREME COURT
Keane C.J.
Murray J.
McGuinness J.
Fennelly J.
McCracken J.
BETWEEN
39 & 53/04
ILONA LEONTJAVA
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DISTRICT JUDGE MARY COLLINS
NOTICE PARTY
BETWEEN
40 & 52/04
LIU CHANG
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DISTRICT JUDGE BROPHY
NOTICE PARTY
JUDGMENT delivered the 23rd day of June, 2004, by Keane C.J.
Introduction
The factual background to these two cases is as follows.
The first named applicant is a Latvian national. She was arrested on the 5th June, 2003 and brought before the District Court. She was there charged with the offence of remaining in the State after the time set for her departure contrary to what was alleged to be a condition imposed on her as an alien when she was given leave to land in the State. On 30th June, 2003, she was given leave to apply by way of an application for judicial review for inter alia the following reliefs:
(i) An order of prohibition prohibiting her trial in Kilmainham District Court and prohibiting the respondents from further pursuing the prosecution in respect of the charge;
(ii) A declaration that Article 5(6) of the Aliens Order, 1946 as inserted by Article 3 of the Aliens (Amendment) Order, 1975 (under which the condition in question was purportedly imposed) is ultra vires s. 5(1) of the Aliens Act, 1935 (hereafter “the 1935 Act”);
(iii) A declaration, if necessary, that s. 5(1) of the 1935 Act is inconsistent with the Constitution and invalid;
(iv) A declaration, if necessary, that s. 2(1) of the Immigration Act, 1999 is repugnant to the Constitution and invalid.
It was further ordered that the proceedings before the District Court be stayed pending the determination of the application for judicial review.
The second named applicant is a Chinese national. He was remanded in custody on the 2nd May, 2003 by the notice party at Trim District Court to answer a charge that he, being an alien, had failed to produce to a member of An Garda Síochána his registration certificate, a valid passport, or a document satisfactorily establishing his identity, he not having satisfactorily explained the circumstances (if any) which prevented him from doing so.
On the 26th May, 2003, the second named applicant was given leave to apply by way of judicial review for inter alia the following reliefs:
(i) An order of prohibition by way of judicial review prohibiting his trial in Trim District Court and prohibiting the respondents from further pursuing the prosecution in respect of the above charge;
(ii) A declaration that Article 15 of the Aliens Order, 1946 as amended is ultra vires s. 5(1) of the 1935 Act;
(iii) A declaration, if necessary, that s. 5(1) of the 1935 Act is inconsistent with the Constitution and invalid;
(iv) A declaration, if necessary, that s. 2(1) of the Immigration Act, 1999 is repugnant to the Constitution and invalid.
It was ordered that the proceedings before the District Court be stayed pending the determination of the application for judicial review.
Statements of opposition having been delivered on behalf of the respondents, the substantive hearing of both applications came on before Finlay-Geoghegan J. In a reserved judgment delivered on the 22nd January, 2004 the learned trial judge found that the applicant in each case was entitled to the order of prohibition sought. In the case of the first named applicant, she found that she was entitled to a declaration that Article 5(6) of the Aliens Order, 1946 was ultra vires s. 5(1) of the 1935 Act and to a declaration that s. 2 of the Immigration Act, 1999 was repugnant to the Constitution and invalid. In the case of the second named applicant, she found that he was entitled to a declaration that s. 5(1)(h) of the 1935 Act was inconsistent with the Constitution and invalid, a declaration that Article 15 of the Aliens Order, 1946 was invalid and a declaration that s. 2 of the Immigration Act, 1999 was repugnant to the Constitution and invalid.
The respondents in both cases have now appealed to this court from the judgment and order of the High Court granting these reliefs.
The first named applicant has served a notice of cross-appeal (recte a notice to vary) in respect of the refusal by the learned trial judge to grant a declaration that s. 5(1)(b) of the 1935 Act was inconsistent with the Constitution and ceased to have effect in the law by virtue of Article 50.
This judgment deals with the findings of the learned trial judge other than her finding that s. 2 of the Immigration Act, 1999 (hereafter “the 1999 Act”) is invalid having regard to the provisions of the Constitution.
The statutory framework
The regulation under which the first named applicant was prosecuted is Article 5 of the Aliens Order, 1946 (hereafter “the 1946 Order”) as inserted by Article 3 of the Aliens (Amendment) Order, 1975 (hereafter “the 1975 Order”). The relevant provisions are as follows:
“5(1) An alien coming from a place outside the State other than Great Britain or Northern Ireland shall, on arrival in the State, present himself to an immigration officer for leave to land.
(6) An immigration officer may attach conditions as to the duration of stay and the engagement in business permitted to an alien granted leave to land, and the alien shall comply with the conditions.”
Those provisions were made in purported pursuance of s. 5(1) of the 1935 Act which provides that
” The Minister [for Justice] may, if and whenever he thinks proper, do by order (in this Act referred to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say:-
(a) prohibit the aliens to whom the order relates from landing in or entering into Saorstát Eireann;
(b) impose on such aliens restrictions and conditions in respect of landing in or entering into Saorstát Eireann, including limiting such landing or entering to particular places or prohibiting such landing or entering at particular places …”
The regulation on foot of which the second named applicant was prosecuted is Article 15 of the 1946 Order which provides that
“(1) Every alien shall produce on demand, unless he gives a satisfactory explanation of the circumstances which prevent him from so doing, either –
(a) in case he is registered or deemed to be registered under this Order, his registration certificate, or
(b) in any other case, a valid passport or some other document satisfactorily establishing his nationality and identity.
(2) In this Article the expression ‘on demand’ means on demand made at any time by any immigration officer or member of the Garda Síochána.
(3) The provisions of this Article shall not apply to –
(a) an alien under the age of 16 years, or
(b) an alien who was born in Ireland, or
(c) an alien woman who is married to or is the widow of an Irish citizen.”
These provisions were also purportedly made pursuant to s. 5(1) of the 1935 Act which, in addition to the provisions already mentioned, enabled the Minister in sub-paragraph (h) to
” require such aliens to comply, while in Saorstát Eireann, with particular provisions as to registration, change of abode, travelling, employment, occupation, and other like matters.”
A majority of this court concluded in Laurentiu –v- Minister for Justice, Equality and Law Reform & Anor, [1999] 4 IR 26, that s. 5(1) of the 1935 Act was inconsistent with the Constitution and had not survived the enactment of the Constitution insofar as it empowered the Minister, under sub-paragraph (e) to
” make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Eireann and provide for and authorise the making by the Minister [for Justice] of orders for that purpose …”
Following that decision, s. 2 of the 1999 Act was passed which provides that
“(1) Every order made before the passing of this Act under section 5 of the Act of 1935 other than the orders or provisions of orders specified in the Schedule to this Act shall have statutory effect as if it were an Act of the Oireachtas.
(2) If subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall be otherwise of full force and effect.”
The orders set out in the Schedule are Article 13 of the 1946 Order (which provides for the deportation of aliens) and the Aliens (Visas) Order, 1999 (S.I. No. 25 of 1999).
The High Court judgment
In her judgment, the learned trial judge considered first the question as to whether Article 5(6) of the 1946 Order, as amended, was intra vires s. 5(1)(d) or 5(1)(h) of the 1935 Act. She concluded that the “restrictions and conditions” referred to in s. 5(1)(d) were clearly intended to apply to the actual landing or entering into the State of an alien. She was also of the view that none of the remaining sub-paragraphs of s. 5(1) indicated an intention on the part of the Oireachtas that the Minister could authorise an immigration official to determine the time for which an alien might be permitted to remain in the State and thereafter to require the alien to comply with such a condition. She accordingly concluded that Article 5(6) of the 1946 Order was ultra vires s. 5(1) of the 1935 Act.
The learned trial judge then went on to consider whether Article 15(1) of the 1946 Order was intra vires s. 5(1)(h) of the 1935 Act. Having noted that the sub-section expressly authorised the Minister to make an order requiring aliens to comply, while in the State, with particular provisions as to “registration, change of abode, travelling, employment, occupation and other like matters”, she concluded that this gave the Minister “a very broad authorisation” as to the provisions which he might specify with which an alien might be required to comply. She was also of the view that the requirement to produce identity documents was sufficiently related to the matters expressly specified in paragraph (h) to come within the generic description of “other like matters”. She accordingly concluded that Article 15 of the 1946 Order was intra vires s. 5(1) of the 1935 Act.
In the light of her conclusion that Article 5(6) of the 1946 Order was ultra vires s. 5(1) of the 1935 Act, the trial judge was of the view that it was not appropriate for her to consider whether the parent provision, s. 5(1)(b) of the 1935 Act, was inconsistent with the Constitution and hence had ceased to be part of the law when the Constitution was enacted. While the notice to vary (described as a “notice of cross-appeal”) invited this court to hold that she was wrong in that determination and to grant the declaration sought, I am satisfied that, if the trial judge was correct in finding that Article 5(6) of the 1946 Order was ultra vires, she was also correct in concluding that it was unnecessary for her to consider whether the parent statute was inconsistent with the Constitution. Since, however, the respondents relied on the provisions of s. 2 of the 1999 Act as giving statutory effect to Article 5(1), notwithstanding its being ultra vires the 1935 Act, she went on to consider the submission on behalf of the first named applicant that this provision was invalid having regard to the provisions of the Constitution and, as already noted, concluded that it was. She accordingly granted the first named applicant the relief to which I have already referred, including an order restraining the continuance of the prosecution.
In the case of the second named applicant, the trial judge, having concluded that Article 15 of the 1946 Order was intra vires s. 5(1)(h) of the 1935 Act, went on to consider whether the enabling provision was inconsistent with the Constitution and in particular Article 15.2 thereof. Having referred to the decisions of this court in Cityview Press Ltd. – v- An Chomhairle Oiliúna [1980] IR 381 and Laurentiu, she concluded that s. 5(1)(h) of the 1935 Act did not set out any “policies and principles” according to which the power given to the Minister to require aliens to comply while in the State in relation to the matters therein should be exercised. She accordingly concluded that s. 5(1)(h) was inconsistent with Article 15.2 of the Constitution and had not survived the enactment of the Constitution. As already noted, she was also of the view that s. 2 of the Immigration Act, 1999 was invalid having regard to the provisions of the Constitution and that, in the result, it had not given statutory force to the provisions of Article 15 of the 1946 Order. She accordingly granted that second named applicant the reliefs already referred to, including an order restraining any proceedings against him in the District Court.
Submissions of the parties
On behalf of the appellants, Mr. Paul Gallagher S.C. submitted that the power to make an order authorising an immigration officer to attach conditions as to the duration of stay and engagement in business permitted to an alien granted leave to land and requiring the alien to comply with those conditions was necessarily implied in the statutory delegation of powers to the Minister pursuant to s. 5(1) of the 1935 Act and, in particular, sub-paragraphs (b) and (d) thereof. He cited in support of this the decision of this court in Cassidy –v- Minister for Industry & Commerce [1978] IR 297. He further submitted that the Minister had a reasonable degree of latitude in making orders designed to achieve a statutory objective in accordance with the Act of the Oireachtas, citing observations of Murphy J. in O’Neill –v- Minister for Agriculture & Food [1997] 1 IR 539.
As to the finding by the trial judge that s. 5(1)(h) of the 1935 Act was inconsistent with Article 15.2.1 of the Constitution, Mr. Gallagher submitted that, in contrast to s. 5(1)(e) of the Act, which the court had held to be inconsistent with that Article in Laurentiu, s. 5(1)(h) did contain sufficient principles and policies for the purpose of guiding and constraining the exercise by the Minister of his power to make secondary legislation. He said that such an approach was entirely consistent with the necessity for the Minister to have a discretion to make decisions within the ambit of the statute, citing in support the observations of Fennelly J. in Maher –v- Minister for Agriculture, Food & Rural Development [2001] 2 IR 139.
On behalf of the first and second named applicants, Mr. Gerard Hogan S.C. submitted that it was beyond dispute that s. 5(1)(b) did not expressly authorise the Minister to impose conditions by regulation as to the duration of stay of aliens or obliging them to comply with such conditions: still less did it authorise an immigration officer to impose such conditions on aliens. In these circumstances, while the appellants were driven to argue that the power of the Minister or the immigration officer to attach such conditions was “necessarily implied” having regard to the provisions of s. 5(1), it was clear that there was no such necessary implication. Such a power could only be implied in exceptional cases and it would be extremely unlikely that the Oireachtas had intended to confer them in a criminal case such as the present. He cited in support the decisions of the High Court in An Blascaod Mór Teo. –v- Commissioners for Public Works in Ireland (unreported, Kelly J., judgment delivered December 19th, 1996) and Howard –v- Commissioners for Public Works in Ireland [1994] 1 IR 101. He submitted that, accordingly, the finding of the trial judge that Article 5(6) was ultra vires was correct.
Mr. Hogan further submitted that the trial judge was in error in concluding that Article 15 was intra vires: while the section enabled the Minister to make regulations as to registration, it was silent on the question as to whether an alien could be required to produce his identity documents. In the absence of any express power enabling an immigration officer, under pain of a criminal sanction to demand that an alien produce his documentation, there was no basis for treating s. 5(1)(h) as conferring such a power by implication.
Mr. Hogan further submitted that if, contrary to his submission, Article 5(6) was intra vires, it followed inevitably that s 5(1)(b) was inconsistent with the Constitution, since it left the Minister totally at large as to the imposition of conditions on aliens landing or entering the State. If the section was to be further construed, as contended for on behalf of the appellants, so as to give the Minister an untrammelled discretion to limit the duration of a stay, it would clearly fail the “principles and policies” test laid down in Cityview Press Ltd. and Laurentiu. He further submitted that the same considerations applied to s. 5(1)(h) where the Minister was totally at large in respect of matters such as registration, change of abode, travelling, employments and occupation. Nor was there any guidance as to what the legislature had in mind when providing that the Minister could require aliens to comply with “particular provisions” as to such matters. He submitted that it followed that s. 5(1)(h) was also inconsistent with the Constitution as failing the “principles and policies” test.
Conclusion
I consider first the finding by the trial judge that Article 5(6) of the 1946 Order was ultra vires s. 5(1) of the 1935 Act.
It is clear that where, as here, the legislature has by statute delegated to a Minister or other body the power to enact subordinate legislation, the latter will be ultra vires the parent statute if it is not, in the words of Henchy J., speaking for this court in Cassidy –v- Minister for Industry & Commerce,:
“within the limitations of that power as they are expressed or necessarily implied in the statutory delegation.”
In the present case, the power conferred on the Minister by the legislature was to impose by order on aliens
“restrictions and conditions in respect of landing in or entering into Saorstát Eireann, including limiting such landing or entering to particular places or prohibiting such landing or entering at particular places …” (Emphasis added )
It is no doubt the case that the Minister was not confined by the wording of s. 5(1)(b) to making regulations specifying the particular places at which an alien could enter the State or prohibiting the alien from entering the State at particular places. The use of the word “including” would seem to suggest that his power to impose restrictions and conditions on aliens in respect of their landing in or entering into the State was not intended to be so confined. It was obviously envisaged, for example, that the regulations would provide for the interviewing by immigration officers of aliens entering the State.
Article 5(6), however, goes considerably further. It deals, not merely with the entry by an alien into the State: it purports to empower the imposing of a condition requiring the alien to leave the State after the expiration of a specified time. There is no indication in the wording of s. 5(1)(b) that the Oireachtas intended the Minister to enjoy such a power not did the granting of the power actually conferred carry with it any necessary implication that it would also extend to limiting the duration of stay of the alien. Even if s. 5(1)(b) could be read as conferring such a power either expressly or by implication, there is no indication of any intention on the part of the legislature to confer the power on any person other than the Minister, e.g. an immigration officer.
That conclusion is unaffected by the provisions of s. 5(1)(d) of the 1935 Act which empowers the Minister to
“impose on such aliens restrictions and conditions in respect of leaving Saorstát Eireann including limiting such leaving to particular places or particular means of travelling or prohibiting such leaving from particular places or by particular means of travelling.”
Again, there is no indication of any intention on the part of the legislature to impose conditions requiring aliens to leave on the expiration of specified time or to confer on immigration officers powers of the kind actually granted by Article 5(6).
I am satisfied that the decision of the trial judge that Article 5(6) of the 1946 Order was ultra vires s. 5(1)(b) and (d) of the 1935 Act was correct. It is, accordingly, unnecessary to consider whether s. 5(1)(b) and (d) were in any event inconsistent with the Constitution and did not survive its enactment.
I am also satisfied that the trial judge was correct in holding that Article 5(15) of the 1946 Order requiring an alien to produce on demand his registration certificate (where applicable) or a passport or other document establishing an alien’s nationality and identity was intra vires the provisions of s. 5(1)(h) of the 1935 Act. While that sub-paragraph does not expressly refer to requirements as to the production of a passport or other document establishing his nationality and identity, it is quite clear, in my view, that the expression “other like matters” in s. 5(1)(h) would extend to the production of documents enabling the immigration authorities to establish the nationality and identity of an alien while in the State.
There remains the question as to whether s. 5(1)(h) is inconsistent with the Constitution and did not survive its enactment.
The test to be applied in resolving that issue is to be found in the well-known passage from the judgment of O’Higgins C.J. speaking for this court in Cityview Press –v- An Chomhairle Oiliúna, i.e.
“…whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
In Laurentiu, where the constitutional validity of s. 5(1)(e) was in issue, the majority were of the view that, in delegating to the Minister the exclusive power of making provision for the exclusion or deportation of aliens (including aliens of a particular nationality), the legislature had abdicated its policy making rule in the entire area of exclusion and deportation to the Minister. In my judgment in that case, I emphasised that the provision under attack could not be construed as a formulation of the policy of the State in relation to the exclusion and deportation of aliens, leaving the detailed aspects of the policy to be filled in by subordinate legislation. Since the right to exclude and deport aliens derived from the character of Saorstát Eireann as a sovereign state, it was not vested in the State by virtue of the 1935 Act. It followed that the only policy being implemented by the 1935 Act and the delegated legislation purportedly made thereunder was the regulation of the exercise of that sovereign power by the executive. Conferring the exclusive right so to regulate its exercise on the Minister was not the choice of a particular policy by the legislature: it was the assignment to the executive by the legislature of exclusive responsibility for determining policy in that specific area, including decisions as far reaching as the exclusion from the State of all persons of a particular nationality.
No such considerations, in my view, arise in the case of s. 5(1)(h). The policy enunciated is plain: the desirability of regulating the registration, change of abode, travelling, employment and occupation of aliens while in the State and the further desirability of regulating “other like matters”. The use of the expression “particular provisions” in this context is, in my view, unexceptionable: it was entirely appropriate for the legislature to specify the matters which they considered required regulation, while leaving it to the Minister to put in place specific regulatory provisions. Similarly, the use of the expression “other like matters” is what one would expect in a provision conferring a power of delegated legislation: the use of the phrase “other like matters” is peculiarly appropriate where the broad scope of the envisaged regulations is being set out in statutory form. To require the legislature either to specify the “particular provisions” or the “other like matters” in the parent legislation itself would be to negate the whole purpose of the power admittedly enjoyed by the Oireachtas to provide for delegated legislation. As Fennelly J. observed in Maher –v- Minister for Agriculture:
“This type of delegated legislation is, by common accord, indispensable for the functioning of the modern state. The necessary regulation of many branches of social and economic activity involves the framing of rules at a level of detail that would inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is better left to the implementing rules. They are not, in their nature such as to involve the concerns and take up the time of the legislature. Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to meet changing circumstances.”
I would accordingly allow the appeal to that extent and set aside the decision of the trial judge that s. 5(1)(h) was inconsistent with Article 15.2 of the Constitution and had not survived the enactment of the Constitution.
It follows that in the case of the second named applicant there should be substituted for the order of the High Court an order dismissing his claim for relief by way of judicial review.
Since, however, I am satisfied that the trial judge was correct in the case of the first named applicant in finding that Article 5(6) of the 1946 Order was ultra vires s 5(1)(b) and (d) of the 1935 Act , it follows that in her case, in my view, the court must consider whether s. 2 of the Immigration Act, 1999 is invalid having regard to the provisions of the Constitution.
THE SUPREME COURT
Keane C.J.
Murray J.
McGuinness J.
Fennelly J.
McCracken J.
BETWEEN
39 & 53/04
ILONA LEONTJAVA
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DISTRICT JUDGE MARY COLLINS
NOTICE PARTY
BETWEEN
40 & 52/04
LIU CHANG
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DISTRICT JUDGE BROPHY
NOTICE PARTY
JUDGMENT delivered the 23rd day of June 2004, by Fennelly J
I fully agree with the orders proposed by the Chief Justice and with his reasoning in all matters save one point of detail. This concerns the reason for concluding that Article 5 of the Aliens Order, 1946 as inserted by Article 3 of the Aliens (Amendment) Order, 1975 is ultra vires the power conferred on the Minister by section 5(1) of the Aliens Act, 1935.
The section authorised the Minister by order to do “all or any of the following [listed] things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens…” Article 5(1) purported to confer a number of powers on an immigration officer. Nothing in the authorising section entitled the Minister to delegate his powers in this way. For this reason, I agree with the Chief Justice that the Article 5(6) is ultra vires the section.
I part company with the Chief Justice’s judgment in relation to one point only. I believe that it was within the power conferred by the section to make orders authorising the imposition of conditions affecting the length of stay of aliens. Section 5(1)(b) speaks of “restrictions and conditions in respect of landing in or entering into Saorstát Eireann…” I believe that it is inherent in the very notion of authorising an alien to land in the State that provision be made for the duration of his permitted stay. It is something that arises so naturally from the very fact of entering a foreign country that it did not need to be spelled out. The first type of condition that would spring to mind, where an alien is given permission to enter the State is one relating to the duration of his or her permitted stay.
However, as I have already indicated, the Minister was not entitled to delegate this power to immigration officers, which is sufficient to invalidate the provision.
Dunne v Minister for Environment
[2004] I.E.H.C. 304
Judgment of Miss Justice Laffoy delivered on 7th September, 2004.
Background
This is the third occasion on which the jurisdiction of this Court has been invoked in connection with the construction of the South Eastern Route motorway at the location where it traverses and adjoins the archaeological site which is colloquially known as Carrickmines Castle.
The South Eastern Route is the final part of the M50 C-ring motorway around Dublin. As has been recognised in earlier proceedings, it forms a strategic element of the national road network, providing a high-speed link between the N11 and the other national primary routes around Dublin. The South Eastern Route is within the functional area of the fourth named defendant (the Council). Ownership of Carrickmines Castle and the land the subject of these proceedings is vested in the Council. On 19th October, 1998, following a public local inquiry in January 1998, which was held over nine days, the predecessor of the first named defendant (the Minister), pursuant to s. 49 of the Roads Act, 1993 (the Act of 1993) approved the Council’s scheme for the construction of the South Eastern Route subject to certain modifications. On the same day, 19th October, 1998, the Minister’s predecessor, pursuant to s. 51 of the Act of 1993, approved that scheme, having considered the Environmental Impact Statement of September, 1997 (the 1997 EIS) submitted by the Council, the submissions which had been made and the report and recommendations of the person who conducted the public local inquiry as to the likely effects on the environment of the development.
The 1997 EIS was expressed to be issued in accordance with EC Directive 85/337, as transposed into Irish law by the Act of 1993 (para. 1.3). In its “Non-Technical Summary” it dealt with archaeology and disclosed that archaeological investigations and surveys had been carried out on the area affected by the proposed scheme, which was described as part of a landscape rich in archaeological and historical material. Topographical and geophysical surveys, which have been carried out, indicated that in three locations, which included Carrickmines, a complex of archaeological features was likely to exist. It was stated that investigative excavation was proposed for the relevant sites to determine their exact nature and significance. On the basis of the excavations full archaeological excavation would be carried out if required on the areas of the sites affected by the proposed scheme prior to the commencement of the construction works. During construction an archaeologist would be retained with full watching brief. Chapter 17 dealt in detail with the results of the archaeological investigations and surveys which had previously been conducted. The location, features, impact of the route on, and recommendations in relation to, selected sites, including the sites at Carrickmines Castle were summarised in tabular form (table 17.2.1). The ameliorative measures proposed were detailed. (para. 17.2.5). In chapter 18 the proposed environmental measures were summarised. In relation to archaeology, it was recorded that the Carrickmines Interchange design had been modified so that the castle remnant could be retained in an open area and minimum disruption would be caused to the more significant areas. Further, it was recorded that where possible the engineering design had avoided all identified sites. Where this could not be achieved a series of ameliorative measures were proposed to be carried out prior to construction to mitigate the impact of the proposed route on archaeology. These included investigative excavation to determine the exact nature and significance of the sites and full archaeological excavation if required on the basis of the results of initial investigation.
Initial archaeological investigations were conducted at Carrickmines Castle during April and May, 2000. Archaeological excavations commenced on 28th August, 2000 and were conducted over the following two years and six months. As has been acknowledged on the previous occasions on which the jurisdiction of this court has been invoked, a large team of archaeologists, up to 200, has been involved in, and considerable resources, in excess of €6 million up to January, 2003, and approximately €9.6 million as of now, have been committed to, the archaeological resolution of Carrickmines Castle. This is part of a total expenditure to date of €12.7 million on archaeology in connection with the South Eastern Route.
The plaintiff in these proceedings was one of the co-plaintiffs in the first action in relation to Carrickmines Castle, which is reported as Dunne v. Dun Laoghaire-Rathdown County Council [2003] 1 IR 567. For the sake of clarity I will refer to these proceedings as “Dunne No.1”. That was a plenary action which was initiated on 5th February, 2003, more or less contemporaneously with the completion of the archaeological investigations which had been ongoing for two and a half years. On the date the proceedings were initiated the plaintiffs brought a motion seeking an interlocutory injunction to prevent the Council from demolishing, removing, altering or in any manner injuring or interfering with the national monument at Carrickmines Castle or from excavating, digging or otherwise disturbing the ground around or in the proximity of the national monument. The relief was refused at first instance. On appeal to the Supreme Court an interlocutory injunction was granted in the terms sought with the addition of the words “without a valid consent under s. 14 of the National Monuments Act, 1930, as amended”. That addition encapsulates the sole basis on which the interlocutory relief was granted. The Supreme Court held that there was a fair and bona fide question to be determined as to whether the absence of a consent by the Minister under s. 14 of the National Monument Act 1930 (the Act of 1930), as amended, precluded the activities the subject of the injunction notwithstanding that the Minister had previously granted a licence pursuant to s. 26 of the Act of 1930 for excavation of another part of the site.
Dunne No. 1 never went to plenary hearing. The response of the Council and the State was to put a consent in place. Section 14(2) of the Act of 1930, as originally enacted, provided that in the case of a national monument of which a local authority was the owner, the joint consent in writing of the Commissioners of Public Works and such local authority was necessary to render lawful activities of the type restrained by the interlocutory injunction. Section 14 was amended by s. 15 of the National Monuments Act, 1994 (the Act of 1994) which prohibited the giving of a consent under s. 14(2) “unless it is in the interest of archaeology to do so or the Minister has approved of the giving of that consent . . .”. At the time the amendment was enacted the relevant minister was the Minister for Arts, Culture and the Gaeltacht. By 2003 two changes had occurred. First, in 1996, by a Government order purported to be made under the Ministers and Secretaries Act, 1924, the functions vested in the Commissioners for Public Works under the Act of 1930 and the Act of 1994 were transferred to the Minister for Arts, Culture and the Gaeltacht. Secondly, in 2002 by a Government order purported to be made under the Ministers and Secretaries (Amendment) Act, 1939 the functions previously vested in the Minister for Arts, Culture and the Gaeltacht under the Act of 1930 and the Act of 1934, and which were then vested in the Minister for Community, Rural and Gaeltacht Affairs, were transferred to the Minister. On 3rd July, 2003 a joint consent was given by the Council and the Minister to the carrying out of the works which had been restrained by the interlocutory injunction. On the same day the Minister made the National Monuments (Approval of Joint Consent) Order, 2003 approving the works in question. That order required to be laid before both Houses of the Oireachtas and it would not become effective until 21 sitting days of both Houses had elapsed during which no resolution to annul the order had been passed by either House. It did not become effective until 2nd December, 2003. On 8th December, 2003 the interlocutory injunction which had been granted by the Supreme Court in Dunne No. 1 was discharged and the Council proceeded to implement the approval given by the Minister.
This provoked the second proceedings, which are reported as Mulcreevy v. Minister for Environment, Heritage and Local Government and Dun Laoghaire-Rathdown County Council [2004] 1 ILRM 419. In those proceedings, the applicant sought various reliefs by way of judicial review, including an order of certiorari quashing the Minister’s approval order of 3rd July, 2003 and injunctive relief restraining certain activities at Carrickmines Castle. The application for leave to seek the reliefs in issue by way of judicial review was on notice to the respondents. Leave was refused at first instance. On appeal to the Supreme Court the applicant was given leave to apply by way of judicial review for an order of certiorari quashing the Minister’s approval order on the ground that the order of 1996 was ultra vires in that it purported to effect an amendment of the statutory scheme established under s. 15 of the Act of 1994 – in that it purported to substitute for the statutory regime requiring the consent of three distinct and independent statutory bodies provided for in the Act of 1994 a regime requiring the consent of only two such bodies.
Subsequently, the substantive application in the judicial review proceedings was heard in this court by Kearns J. While the order of Kearns J. had not been put before the court, I understand that its effect was to quash the Minister’s approval order.
There is one further procedure in the background to these proceedings to which it is necessary to advert in order to give a complete picture. In line with the stance adopted by the Council and the State in the previous proceedings, the position of the defendants in these proceedings is that the strategy for the archaeological resolution of Carrickmines Castle as set out in the 1997 EIS envisaged the preservation by record of any archaeological features discovered on the line of the motorway and associated local roads, which I understand to mean full excavation and recording. It envisaged that areas not within the area of construction would be preserved in situ, although the evidence before the court indicates that preservation in situ may involve preservation under the roadworks when completed. In September, 2002 the Minister for Transport directed the modification to the design of a roundabout adjacent to a number of stone structures on the Carrickmines Castle site which were uncovered in the course of the archaeological works. In these proceedings evidence adduced by the Minister indicate that the purpose of the modifications was to allow the preservation in situ of these structures and of a feature which was highlighted in the earlier proceedings, a revetted fosse, where it runs under the roundabout. The modifications were the subject of an application for a direction by Stephen Deveney to An Bord Pleanála (the Board) under s. 50(1)(b) of the Act of 1993. Section 50(1)(b) provides:
“Where the Minister considers that any proposed road development (other than development to which paragraph (a) applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be likely to have significant effects on the environment, he shall direct the road authority to prepare an environmental impact statement in respect of such proposed road development and the authority shall comply with such direction.”
The functions of the Minister under s. 50(1)(b) were vested in the Board by
s. 215 of the Planning and Development Act, 2000. On 21st March, 2003 the Board decided not to direct the preparation of an environmental impact statement in respect of the proposed modifications to the approved road development. The reasons ascribed for the decision were that the modifications proposed –
(i) do not significantly alter the proposed road development from that previously approved and that the development remains in essence the same as that for which approval has previously be obtained, and
(ii) would not of themselves have significant adverse effects on the environment and, accordingly, do not comprise a project specified at para. 13 of Annexe II of Directive 85/337/EEC, as amended by 97/11/EC.
National Monuments (Amendment) Act, 2004
The National Monuments (Amendment) Act, 2004 (the Act of 2004) came into force on 18th July, 2004. It amends the Act of 1930 by substituting a new provision, set out in s. 5, for s. 14. It introduces a special provision in relation to the South Eastern Route, s. 8, which provides as follows:
“(1) The consent of the Minister under section 14 and any further
consent or licence under any other provision of the National Monuments Acts, 1930 to 2004 shall not be required in relation to the carrying out of any works affecting any national monument in connection with the completion of the South Eastern Route (as described in the Third Schedule of the Roads Act, 1993 (declaration of National Roads) Order 1994 (S.I. No. 209 of 1994) by Dun Laoghaire-Rathdown County Council but any such works shall be carried out on the directions of the Minister.
(2) In considering to issue directions under subsection (1) of this
section –
(a) the Minister is not restricted to archaeological
considerations but he is entitled to consider the public interest notwithstanding that such exercise may involve –
(i) injury to or interference with a national monument,
or
(ii) the destruction in whole or in part of a national monument,
(b) the Minister may have regard to the following to the extent that they appear to the Minister to be relevant in exercising discretion to issue directions in respect of a national monument:
(i) the preservation, protection or maintenance of the archaeological, historical or other cultural heritage or amenities of, or associated with the national monument,
(ii) the nature and extent of any injury or interference with the national monument,
(iii) any social or economic benefit that would accrue to the State or region or immediate area in which the national monument is situated as a result of the carrying out of the road development,
(iv) any matter of policy of the Government, of the Minister or of any other Minister of the Government,
(v) the need to collect or disseminate information on national monuments or in respect of heritage generally,
(vi) the cost implications (if any) that would, in the Minister’s opinion, occur from the issuing of a direction, or not issuing a direction, under subsection (1) of this section.
(3) Where an archaeological object is found as a consequence of work undertaken by Dun Laoghaire-Rathdown County Council relating
to work on the South Eastern Route, then section 8 of the National Monuments (Amendment) Act, 1994 shall not apply to the land or any premises under which or in the vicinity of which the archaeological object has been found.
(4) Section 50(1)(b) of the Roads Act, 1993 shall not apply in respect of the South Eastern Route.”
Section 9 of the Act of 2004 provides that the National Monuments Acts, 1990 to 1994 and the Act of 2004 shall be construed together as one Act. Section 3 of the Act of 2004 introduces a new definition of “Minister” for the purposes of the National Monuments Acts. The first named defendant is the relevant minister for the purposes of s. 8.
Events post the coming into operation of the Act of 2004
On 21st July, 2004 the Council applied to the Minister for directions under s. 8. The application set out the works which the Council, subject to the terms and conditions of any direction which the Minister might issue, proposed to carry out to the site of Carrickmines Castle. It was stated that the works in question are in respect of “outstanding archaeological resolution measures at the site”. Subsequently, by letter dated 12th August, 2004, the chief archaeologist in the National Monument Section of the Minister’s department agreed method statements submitted by the Council. On 5th August, 2004 the Council was informed that the Minister had issued directions “in respect of the remaining works as they affect any national monument” and the directions were set out in an appendix attached to the letter. In the appendix the directions were described as being for archaeological resolution of Carrickmines Castle site. The position of the State and the Council in these proceedings is that the directions relate solely to the archaeological mitigation of the site. They do not contain or involve any alteration, material or otherwise, to the road development approved under the Act of 1993. Works recommenced at Carrickmines Castle on 16th August, 2004. The position of the defendants is that the works in question are archaeological works and they were being carried out in accordance with method statements submitted by the Council and their archaeological consultants and approved by the National Monuments Section of the Minister’s department. Some method statements remain to be submitted by the Council.
These Proceedings
In these proceedings which were commenced on 18th August, 2004 the plaintiff seeks the following reliefs:
(1) A declaration that s. 8 of the Act of 2004 is invalid having regard to the provisions of the Constitution and, in particular, Articles 5, 10, 15 and 40 thereof.
(2) A declaration that s. 8 of the Act of 2004 is invalid and of no legal effect having regard to the provisions of European law and, in particular, the provisions of Directives 85/337/EEC, 97/11/EC, 2001/42/EC and/or 2003/35/EC, as amended. At the hearing it became clear that the plaintiff is only relying on the 1985 Directive and the 1997 Directive, which will be collectively referred to as “the Directive”.
(2)(A) In the alternative, a declaration that the directions of the Minister pursuant to s. 8 of the Act of 2004 are a nullity and of no effect and invalid by reason of the failure of the Minister to comply and/or to have regard to the requirements of the Directive in relation to environmental impact assessments.
(3) An injunction restraining the Council from demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering with a national monument, the property of the Council, being the remains of Carrickmines Castle.
On the same day, 18th August, 2004, the plaintiff issued a motion seeking an interlocutory injunction. By consent of the parties, it was ordered that the plenary hearing of the matter should commence on 26th August, 2005.
The Council has given an undertaking to the Court in the terms of the interlocutory injunction sought by the plaintiff pending this judgment.
Analysis of the relevant statutory provisions
Awareness of the importance of ancient monuments and historic sites and the desirability of preserving them for posterity is not a phenomenon of the 20th and 21st centuries. The earliest legislative provisions which protected ancient monuments in Ireland were contained the Ancient Monuments Protection Act, 1882. That Act enabled the appointment of the Commissioners of Public Works in Ireland as guardians of monuments to which the Act applied, with a duty to maintain the monument. It also empowered the Commissioners to purchase monuments and accept gifts or bequests of monuments. It provided a criminal sanction for injuring or defacing a monument. The monuments to which the Act applied were those listed in a Schedule to the Act “and any other monuments of a like character”. Among the ancient monuments in Ireland listed in the Schedule were Grianan Aileach, Staigue Fort, and Newgrange. Monuments which featured in litigation in the last three decades also featured: the earthworks on the Hill of Tara, the graves at Carrowmore and Knocknarea. By an amendment in 1892 the powers of the Commissioners under the Act of 1882 were extended to “any ancient or mediaeval structure, erection or monument, or any remains thereof” where the Commissioners were of opinion that preservation thereof was a matter of public interest by reason of the historic, traditional, or artistic interest attaching to it. There was a further amendment in 1910 which further extended the powers of the Commissioners.
The Act of 1930 repealed the Act of 1882 and the amending Acts. In its long title it was described as:
“An Act to make provision for the protection and preservation of national monuments and the preservation of archaeological objects in Soarstát Éireann and to make provision for other matters connected with the matters aforesaid.”
It defined the word “monument” and the expression “national monument”. When Dunne No. 1 was before the Supreme Court, although conceding that an arguable case had been made out for the proposition that Carrickmines Castle constituted a national monument, the Council denied that it was (see judgment of Hardiman J. at p. 572). When Mulcreevy was before the Supreme Court it was not in dispute that Carrickmines Castle is a national monument (see judgment of Keane C.J. at p. 419). In these proceedings it is accepted by the Council that certain remains of Carrickmines Castle constitute a national monument. The Minister admits that certain of the remains of the fortification structures come within the definition of national monument. In any event, the whole raison d’etre of s. 8 and the Minister’s directions thereunder is that the works to which they relate are works to a national monument.
In the context of these proceedings the most important provision of the Act of 1930 is s. 14. In outlining the background to these proceedings earlier, I have touched on the provisions of s. 14, as amended by s. 15 of the Act of 1994. The provisions as originally enacted, and the amendments wrought by the Act of 1994 were considered by Keane C.J. in Mulcreevy at pp. 430-432. For present purposes, suffice it to say that the amendment enacted in 1994 more rigorously controlled the granting of consent to the demolition, removal, disfigurement, defacement, alteration or any manner of injury to or interference with a national monument in the ownership or guardianship of the Commissioners of Public Works or a local authority or which was the subject of a preservation order. The breadth of discretion which had hitherto reposed in the statutory bodies in relation to the grant of consent was greatly curtailed and, where the activity proposed was not in the interests of archaeology or, in the opinion of the relevant Minister, expedient in the interests of public health or safety, the tacit approval of the Oireachtas was necessary. I use the expression “tacit approval” as shorthand for the requirement of laying a ministerial approval consent before both Houses of the Oireachtas while conscious of the fact that such a requirement was described as “something of a blunt instrument” by Keane J., in the Laurentiu case referred to later.
The structure of s. 14 as now contained in s. 5 of the Act of 2004 in broad outline is that s. 14 re-enacts the existing s. 14 with amendments, s. 14A introduces supplementary provisions in relation to road development, s. 14B augments s. 14A in dealing with directions which the Minister may make under s. 14A, and s. 14C deals with grant of consent in the interest of public health and safety.
Section 14 regulates activities in relation to national monuments of the type which were protected by the original s. 14: national monuments in the ownership or guardianship of the State or a local authority or which are subject to a preservation order. Broadly speaking the activities regulated are the activities regulated by s. 14 as originally enacted: demolition and so forth and injury or interference with the monument in any manner; excavation, digging and so forth; sale for exportation or exportation; and an additional category of activity, renovation and restoration, which was first introduced in 1987. Any of the foregoing activities are unlawful without a consent under sub-s. (2). Under sub-s. (2), the Minister is given a discretion to consent to the doing of any of the activities referred to in sub-s. (1). However, he is obliged to consult with the Director of the National Museum before granting consent. The consent may be subject to conditions and restrictions. The exercise of the discretion to grant consent is of the same amplitude as the consideration of the issuing of directions under s. 8(2)(a), which I have quoted earlier. Moreover, the Minister may have regard to the factors listed in s. 8(2)(b) to the extent that they appear to him to be relevant, subject to one variation: he may have regard to any environmental, cultural and recreational benefit that would accrue, in addition to any social or economic benefit as referred to in s. 8(2)(b)(iii). Subsection (5) of s. 14 renders it a criminal offence to contravene sub-s. (1), which is triable summarily or on indictment.
Section 14A would appear to reflect the experience of the State and local authority in relation to the South Eastern Route. The combined effect of sub-ss. (1) and (2) in relation to an approved road development is similar to the effect of s. 8(1) in relation to the South Eastern Route: consent under s. 14, any further consent or licence under the National Monuments Act is not necessary, but any works of an archaeological nature that are carried out must be carried out in accordance with the directions of the Minister. However, s. 14(2) contains a safeguard which is not found in s. 8(1): the Minister is obliged to consult with the Director of the National Museum before issuing directions. Sub-section (4) deals with the situation where a national monument is discovered in the course of the carrying out of an approved road development where neither approval under s. 51 of the Act of 1993 nor the environmental impact statement to which the approval relates deals with the national monument. In such case, there is a duty on the road authority to report the discovery to the Minister and to desist from works which would interfere with the monument except such as are urgently required to secure its preservation in accordance with such measures as may be specified by the Minister. The substantive provisions in relation to a discovery to which sub-s. (4) applies are contained in sub-ss. (4), (5), (6) and (7) of s. 14A and in s. 14B. Neither a consent under s. 14 nor any consent nor any licence under the National Monuments Acts (with one exception) is required. The Minister may, at his discretion, issue directions to the road authority concerning certain activities in relation to the monument – preservation, renovation or restoration, excavation and such like, recording it, and demolition, removal, alteration and any manner of injury or interference with it. There are a number of safeguards, however. The exercise of the discretion is subject to similar provisions as those set out in s. 8(2) in relation to the consideration of the issuing of directions under s. 8.
The exceptions and safeguards embodied in ss. 14A and 14B in relation to discovered monuments are as follows:
(1) A road authority is not absolved from obtaining a licence under s. 25 of the Act of 1930 as amended, which, in broad terms, is a licence to alter an archaeological object.
(2) The Minister is obliged to consult with the Director of the National Museum before issuing directions.
(3) Where the Minister has issued directions, he is obliged to inform the Board of those directions and of any change in the approved road development necessitated by the directions. The Board is required to determine, as soon as practicable, whether in consequence of the directions there is a material alteration to the approved road development. There appears to be a slight drafting infirmity in s. 14B(2). However, for present purposes, if the Board determines that no material alteration arises to the approved road development, it is obliged to so advise the road authority. Alternatively, if it determines that a material alteration arises, it is then obliged to further determine
(4) whether or not to modify the approval for the purposes of permitting any changes to the route or the design of the approved road development, and
(5) whether or not the material alteration is likely to have significant adverse effects on the environment.
Where it makes the determination that a material alteration is not likely to have significant effects on the environment, it is obliged to give its approval subject to any modifications and additions determined in accordance with (a). Where it makes the determination that a material alteration is likely to have significant adverse effects on the environment, then it is obliged to require the preparation of an environmental impact statement. The remainder of s. 14B contains provisions which govern the environmental assessment of the consequences of the directions and culminates either in –
(i) confirmation of the approved road development as affected by the directions, or
(ii) approval, with or without modifications, of a change to the approved road development, or
(iii) the refusal to confirm the approved road development as affected by the Minister’s directions (sub-s. (8)).
In the event of a refusal to confirm, the road authority is not obliged to comply with the directions.
Section 8 of the Act of 1994, which is referred to in s. 8(3) of the Act of 2004, provides that where the finding of an archaeological object has been reported to the Director of the National Museum he, or a designated person on his behalf, may inspect the locus of the find and do all things as may be reasonably necessary for performing his functions under the National Monuments Acts, including excavation where he considers that an archaeological object, or the site thereof, is in immediate danger of destruction or decay.
Effect of Section 8
On its proper construction, in my view, the effect of s. 8 is that, insofar as any works necessary in connection with the completion of the South Eastern Route impact on Carrickmines Castle, such works are totally free from regulation under the National Monuments Acts other than the provisions of sub-ss. (1) and (2) of s. 8. The only regulation which may be imposed under sub-ss. (1) and (2) is that any such works must be carried out on the directions of the Minister.
It was submitted on behalf of the Minister that he has a discretion as to whether he makes directions under s. 8 or not, a construction with which counsel for the plaintiff agreed. On this construction, it was submitted on behalf of the Minister, that if the Minister chose not to make directions, or, alternatively, if the directions which he made on 5th August, 2004 were found to be invalid, the Council would have a carte blanche as to how it would carry out such works. I do not accept that proposition. It is expressly mandated in sub-s. (1) that such works “shall be carried out on the directions of the Minister.” It is implicit in subs. (1) that the Minister must give directions. Absent directions of the Minister, in my view, there would be a lacuna which would prevent the completion of the South Eastern Route. Accordingly, in the event that the directions which were made on 5th August, 2004 being invalid, the Minister would be constrained to make valid directions. That the Minister was not intended to have a discretion under s. 8(1) as to whether to issue or not to issue directions, in my view, is borne out by the terms in which subs. (2) introduces the scope of his obligation – “in considering to issue directions…”. Neither the reference to the exercise of his “discretion” in s. 8 (2) (b) nor the reference to the cost implications of not issuing a direction in sub-para (vi) of para (b) that subsection bears out the contention of all the parties that the Minister is not obliged to issue directions. In my view, those references relate to the contents of the directions. Even if I am wrong in interpreting s. 8 (1) as imposing an obligation on the Minister, that does not affect any of the conclusions which I reach later in this judgment.
Although the Minister must issue valid directions if such are necessary for the completion of the South Eastern Route, which clearly is the case, his consideration as to the content of the directions is untrammelled by archaeological considerations even to the extent that he may direct the destruction in whole or in part of the national monument at Carrickmines Castle, taking account of the public interest.
As a matter of construction, no part of s. 14, as now contained in s. 5 of the Act of 2004, governs the completion of the road development the subject of s. 8. Failure by the Council to comply with directions given under s. 8(1) would not constitute an offence under s. 14(5). Counsel for the Minister explained the rationale underlying the absence of a criminal sanction in s. 8 by submitting that the Council, being a creature of statute, may not do what it is not statutorily empowered to do.
By comparison to the situation which prevailed under s. 14, as originally enacted and amended by the Act of 1994, and given that the order of 1996 struck down in the Mulcreevy case was ultra vires, from the perspective of the preservation and protection of a national monument, the completion of the road development works in connection with the South Eastern Route under s. 8 is virtually uncontrolled in that –
(a) the Council, the landowner, does not need the consent of any distinct and independent statutory body to the carrying out of the works, nor is the approval of a third independent statutory body necessary, nor is the tacit approval of both Houses of the Oireachtas necessary,
(b) there is no requirement to obtain a licence under s. 25 or s. 26 of the Act of 1930 which might otherwise be necessary,
(c) the statutory measure to safeguard the locus of an archaeological find provided for in s. 8 of the Act of 1994 is dissapplied, and
(d) disapplication of s. 50 (1) (b) of the Act of 1993 precludes the Board from considering whether the completion of the development works would be likely to have a significant effect on the environment and of considering whether to direct an environmental impact statement.
Of course, as against the foregoing deregulation, and, in particular, the lack of requirement for the tacit approval of both Houses of the Oireachtas, the Oireachtas has expressly sanctioned the regulation of the national monument aspects of the completion of the South Eastern Route by the Minister solely.
Further by comparison to the manner in which national monument considerations in connection with future road development will be regulated in accordance with s. 14(A) and (B), the completion of the South Eastern Route in accordance with s. 8 is virtually bereft of independent safeguards, in that neither the Director of the National Museum nor the Board has or will have, any function, although, as regards the Board, this comment must be qualified by a recognition (without, of course, making any finding) of the improbability of the scenario such as provided for in s. 14(A)(4) (the discovery of a national monument which has not been dealt with in the 1997 EIS) arising in relation to the South Eastern Route given the degree of archaeological investigation which has taken place at Carrickmines Castle and in the development area in general to date. Further, national or local environmental, cultural or recreational consideration need not play any part in the Minister’s deliberations under s. 8.
On its face, when considered in the context of the entire National Monuments Acts code and, in particular the provisions of the Act of 2004, in my view, the meaning and effect of s. 8 is absolutely clear. The history of the South Eastern Route, which is partially recounted earlier, leaves one in no doubt as to the policy by which the enactment of s. 8 was driven. It was to ensure the completion of the South Eastern Route without any input in relation to national monument protection implications from any party external to the Minister and his advisors and the Council and its advisors. Prima facie, the Oireachtas has given statutory force to that policy in s. 8. What this case is about is whether that was permissible having regard to the Constitution and European Union law. The answer turns primarily on legal issues.
The evidence
No oral evidence was adduced at the hearing of the action. As I understand the position, the question of evidence was not addressed on 19th August, 2004 when, by agreement of the parties, the matter was listed before full plenary hearing one week later, although a time frame was imposed on the parties in relation to pleading and suchlike.
At the hearing, the following affidavits were open to the court by consent of the parties:
(a) On behalf of the plaintiff, an affidavit of the plaintiff, an affidavit of John D. Prynce, who observed the works being carried on at Carrickmines Castle on 16th August, 2004 and three affidavits of Dr. Mark Clinton, an archaeologist, who was a site director for Phase 1 of the archaeological investigations at Carrickmines Castle;
(b) On behalf of the Minister and other State defendants, an affidavit of Kevin Cullen, Principal Officer in the National Monuments section of the Minster’s department, which dealt with, inter alia, the factual background; and
(c) On behalf of the Council, affidavits of Rory O’Sullivan and Michael Noonan, engineers involved in the road development works and two affidavits of Gary Conboy, an archaeologist, who is now the Site Director at the Carrickmines site on behalf of Valerie J. Keeley Limited, who are the archaeological consultants to the Council.
The court was referred to order 39, rule 1 of the Rules of the Superior Courts, 1986 which provides as follows:
“In the absence of any agreement in writing between the solicitors of all parties, and subject to these rules, the witnesses at the trial of any action…shall be examined viva voce and in open court, but the court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable….”
All of the parties were agreed that the matter should be heard on affidavit evidence. While conflicts of evidence were disclosed on the affidavits, because of the course adopted by the defendants in their pleadings, the issues of fact which arise for determination are minimal.
It is appropriate to record that there was a conflict between the archaeological experts, Dr. Clinton and Mr. Conboy, as to the best way forward from an archaeological point of view. What constitutes best archaeological practice in relation to the management of the Carrickmines Castle site having regard to the current state of knowledge as to its significance is not a matter for determination by the court.
Although the matter proceeded on affidavit, counsel for the plaintiff laid particular emphasis on the third affidavit of Dr. Clinton sworn on 27th August, 2004, the second day of the hearing, to which I will return later. Counsel for the plaintiff proffered Dr. Clinton for cross-examination on that and his other affidavits. The defendants did not avail of the opportunity to cross examine Dr. Clinton or seek to respond, by affidavit or otherwise to the facts deposed to in the affidavit of 27th August, 2004.
E.U. Law Challenge
In outline the contention of the plaintiff is that s. 8 is incompatible with European Union Law in failing to require the Minister to consider whether an environmental impact assessment is necessary in accordance with the provisions of the Directive and to carry out such an assessment in accordance with those provisions before issuing directions. In the alternative, the plaintiff contends that the directions given on 5th August, 2004 and the method statement agreed on 12th August, 2004 are invalid by reason of the failure of the Minister to comply with the provisions of the Directive.
The provisions of the Directive which are of particular relevance in the context of the issues which arise in these proceedings are as follows:
Article 1(2), which contains definitions.
“Project” is defined as meaning the execution of construction or other installations or schemes and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources. In the case of a public project “developer” means the public authority which initiates the project. The expression, “development consent” is defined as meaning:
“…the decision of the competent authority or authorities which entitle the developer to proceed with the project”.
Article 1(5), which exempts from the Directive-
“…projects, the details of which are adopted by a specific act of national legislation, …”
The rationale for the exemption is set out in Article 1(5) is that the objectives of the Directive, including the supplying of information are achieved through the legislative process.
Article 2(1), which is now contained in Article 1(1) of the 1997 Directive, which provides as follows:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4”.
Article 3, which is now contained in Article 1(5) of the 1997 Directive, and provides:
“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
– human beings, fauna and flora;
– soil, water, air, climate and the landscape;
– material assets and the cultural heritage;
– the interaction between the factors mentioned in the first, second and third indents.”
Article 4, which is now contained in Article 1(6) of the 1997 Directive. Article 4(1) makes it mandatory to conduct an environmental impact assessment in the case of the projects listed in Annex I. Motorway construction is included in Annex I. Article 4 (2) provides that for projects listed in Annex II the Member State shall determine through –
(a) a case-by-case examination or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Article 5 to 10.
Point 13 in Annex II refers to
“any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed which may have significant adverse effects on the environment”.
Article 4 (3) provides that when a case-by-case examination is carried out or thresholds or criteria are set, the relevant selection criteria set out in Annex III shall be taken into account. Annex III under the heading, “Location of Projects” requires that the environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard, in particular, to the factors listed, including, “landscapes of historical, cultural or archaeological significance”. Under the heading of “Characteristics of Potential Impact”, Annex III requires that the potential effects of projects be considered in relation to the criteria previously set out and having particular regard to, inter alia, the reversibility of the impact.
In the case of motorway and certain road development the provisions of the Directive are transposed into Irish law by ss. 50 and 51 of the Act of 1993. As has been previously stated, since the enactment of the Planning and Development Act, 2000 the decision maker as to whether an environmental impact statement should be prepared is the Board. Prior to that change, an environmental impact assessment was carried out in relation to the South Eastern Route scheme under s. 51, in tandem with the approval of the road scheme under s. 49, the relevant orders being dated 19th October, 1998 referred to earlier. Those orders cannot now be challenged, nor can the determination of the Board of 21st March, 2003 referred to earlier. It was submitted on behalf of the Minister that there is implicit in the plaintiff’s case a challenge to the adequacy of the environmental impact assessment carried out in 1998. Counsel for the plaintiff resolutely rejected this argument. In my view, no such challenge is implicit in these proceedings.
The plaintiff’s challenge to s. 8 and the directions made thereunder is predicated on the following propositions:
(1) That the works referred to in s. 8 (1) – “works affecting any national monument in connection with the completion of the South Eastern Route.” – constitute a project within Article 4 (2) in respect of which there is an obligation on the State to adopt the measures prescribed in the Directive. As I understand it, this proposition is founded entirely on point 13 of Annex II.
(2) That the directions made on 5th August, 2004 constitute a development consent as defined in the Directive.
It seems to me that in analysing the authorities cited by counsel and in applying the relevant principles to the factual situation in relation to Carrickmines Castle, it is not always possible to treat these propositions as being mutually exclusive.
Two of the authorities cited arose from a U.K. statute of 1991 which required owners of old planning permissions in relation to quarries and mining to apply within a stipulated period to the local mineral planning authority (MPA) for registration of the old permission and for determination of conditions to which the planning permission would thereafter be subject, failing which the old permission would cease to have effect.
The decision of the House of Lords in Reg. v. North Yorks. C.C., ex p. Brown [2000] 1 AC 397 concerned a planning permission dating from 1947 in relation to a quarry in Yorkshire which was located near a designated conservation area. The relevant MPA registered the permission under the 1991 statute and, after initiating a consultation process, determined the conditions. The applicants were local landowners who sought, by way of judicial review, a declaration that the determinations were unlawful on account of the failure of the MPA to conduct an environmental impact assessment in accordance with the Directive. The issue before the House of Lords was whether the determination of the conditions was a development consent. Quarrying falls within Annex II of the Directive. Lord Hoffman, having observed that the source of the developer’s right to proceed with the project was and remained the planning permission of 1947, even after conditions had been imposed, but that, nonetheless, the developer could not proceed unless the planning authority had determined the appropriate conditions, continued as follows (at page 404):
“So that although the determination does not decide whether the developer may proceed but only the manner in which he may proceed, it is nevertheless a necessary condition for his being entitled to proceed at all.
Is this sufficient to bring it within the European concept of a development consent? I think it is. The purpose of the Directive, as I have said, is to ensure that planning decisions which may affect the environment are made on the basis of full information. In Aannemersbedrijf P.K. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] E.C.R. 1-5403, 5444, para. 3 the European Court of Justice said that ‘the wording of the Directive indicates that it has a wide scope and a broad purpose.’
A decision as to the conditions under which a quarry may be operated may have a very important effect on the environment …
The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken. In such a case, the environmental impact assessment (if any) would have been made at the earlier stage and no further assessment would be required…
The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given….
It [the principle] seems to me, clear, however, that it can have no application to this [case]. The procedure created by the Act of 1991 was not merely a detailed regulation of a project in respect of which the substantial environmental issues had already been considered. The purpose of the procedure was to give the mineral planning authority a power to assess the likely environmental effects of old mining permissions which had been granted without, to modern ways of thinking, any serious consideration of the environment at all. It is true that the power to deal with these effects was limited to the imposition of conditions rather than complete prohibition. But the procedure was nevertheless a new and freestanding examination of the issues and could therefore, in my opinion, require the information provided by an environmental impact assessment. It was therefore a ‘development consent’ within the meaning of the Directive.”
A similar issue arose in Wells v. Secretary of State for Transport, Local Government and the Regions (Case C- 201/02) in which, on a reference from the English High Court, the European Court of Justice gave judgment on 7th January, 2004. The factual situation in this case was slightly more complex. It also concerned a 1947 planning permission in relation to a quarry in an environmentally sensitive area. In 1991 the owner of the quarry procured its registration under the Act of 1991 and he followed this with an application to the competent MPA to determine the new planning conditions. By a decision in 1994 the MPA imposed conditions. These were more stringent than had been submitted by the owners of the quarry, who appealed to the Secretary of State. By a decision of 1997 the Secretary of State imposed planning conditions, leaving some matters to be decided by the competent MPA. Those matters were approved of by the competent MPA by a decision of 1999. In its judgment the European Court referred to the decision of the Secretary of State of 1997, together with the decision of the MPA of 1994 as “the decision determining the new conditions” and the subsequent decision of the MPA in 1999 as “the decision approving matters reserved by the new conditions.” Neither the MPA nor the Secretary of State had carried out an environmental impact assessment pursuant to the Directive. At no stage was a formal environmental impact statement considered. The issue of the admissibility of the questions as to whether the decisions in question could be classified as a development consent was raised. The Court held that the questions were admissible (para. 38). On the substance of the questions, it stated as follows at paras. 44 to 47 inclusive of its judgment.
“44. In the main proceedings, the owners of Conygar Quarry were obliged under the Planning Compensation Act 1991, if they wished to resume working of the quarry, to have the old mining permission registered and to seek decisions determining new planning conditions and approving matters reserved by those conditions. Had they not done so, the permission would have ceased to have effect.
45. Without new decisions such as those referred to in the previous paragraph, there would no longer have been consent, within the meaning of Article 2 (1) of Directive 85/337, to work the quarry.
46. It would undermine the effectiveness of that directive to regard as mere modification of an existing consent the adoption of decisions which, in circumstances such as those of the main proceedings, replace not only the terms but the very substance of a prior consent, such as the old mining permission.
47. Accordingly, decisions such as the decision determining new conditions and the decision approving matters reserved by the new conditions for the working of Conygar Quarry must be considered to constitute, as a whole, a new consent within the meaning of Article 2 (1) of Directive 85/337, read in conjunction with Article 1 (2) thereof.”
The Court recognised that, as the consent procedure comprised several stages, to provide the referring court with a complete answer as regards the obligation created by the Directive, it was necessary to consider the question as to when the assessment must be carried out. The Court answered this question in paragraphs 50 to 52 of its judgment as follows:
“50. As provided in Article 2 (1) of Directive 85/337, the environmental impact assessment must be carried out before consent is given.
51. According to the first recital in the preamble to the directive, the competent authority is to take account of the environmental effects of the project in question at the earliest possible stage in the decision-making process.
52. Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.”
Counsel for the State emphasised two features which distinguish the Brown and Wells cases on the facts from this case: both Brown and Wells concerned very old planning permissions, in both cases permissions which were over 40 years old; and there had been no environmental impact assessment of any sort in either case when the permissions were granted. A case based on facts which, in some respects, are akin to circumstances in this case, which was relied on by counsel for the Minister, was R (Prokopp) v. London Underground Limited [2004] 1 P. & C.R. 31 479, a decision of the English Court of Appeal. In that case, the respondent, London Underground Limited had planning permission for the construction of a railway line extension, referred to as “ELLX”. It was not in dispute that a proper environmental impact assessment and consultation process in accordance with the Directive had taken place prior to the coming into existence of the planning permission. The respondent commenced construction works in breach of a condition of the permission. The permission lapsed. However, the respondent was unwilling to submit any new planning application because of the probability of delay and the risk of losing funding. The condition which had been breached could fairly be described as creating a “catch 22” type situation. It provided that the development was not to commence until certain lands were landscaped for use as open space; the landscaping could not be carried out until a railway station was closed; but that could not sensibly be done until ELLX was completed. In those circumstances, the relevant Borough Councils entered into an agreement with the respondent, and passed resolutions, not to take enforcement action in respect of the breach of condition. The appellant, Mr. Prokopp was interested in a goods yard, which contained a viaduct which had recently been listed as a building of architectural interest. He sought to have the respondent’s decision to demolish part of the yard and the decisions of the Borough Councils to refrain from taking enforcement action quashed by way of judicial review. He argued that the resolutions of the Borough Councils not to take enforcement action amounted to a development consent, which could only been granted after a full environmental impact assessment. The Court of Appeal rejected that argument. In his judgment, (at page. 495), Buxton L.J. said:
“In our case, both in law and in common sense terms, the “project” is the whole of the ELLX. For that reason…the fact that by a rule of domestic law of a particular member state further permission is required in the course of the project though for reasons unconnected with its environmental impact, does not mean that the granting of such permission must be treated as a “development consent”. Indeed, quite the reverse. The relevant and only consent in terms of the Directive was the original decision that permitted the project to go forward in the first place.
Further, it is even less likely that not a formal permission in the course of the project, but what we have here, a failure to interrupt the project, is a development consent in terms of the Directive. Both [counsel] pointed to aspects of the wording of the Directive that supported that view. Thus such a failure does not entitle the developer to proceed, but merely leaves him to proceed at his peril. They said that it was difficult or impossible to fit that circumstance into not merely the formal wording but also the scheme of the Directive which requires the consent to be proceeded by a detailed application. No such “application” in the terms envisaged by the Directive was made or would be appropriate, or, indeed, comprehensible where what was sought was an assurance that enforcement action would not be taken.”
Counsel for the Minister submitted, by way of general observation, that there is no authority for an interpretation of the Directive which necessitates an extra environmental impact assessment if extra information in relation to environmental issues comes to hand, or for successive assessment in relation to the same project. If the Directive was open to such interpretation, when would there be an end to the requirement for assessment, he asked rhetorically. The requirement of the Directive, it was submitted, is for an environmental impact assessment which is a single process and which precedes the planning or development decision. The purpose of the environmental impact statement is to inform the decision maker. It is not an end in itself. Counsel laid particular emphasis on the following passage from the speech of Lord Hoffman in Berkeley v. Secretary of State for the Environment [2001] 2 AC 603 at page 617:
“A point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language.”
Counsel for the Minister also pointed to the decision of the Board on Mr. Devaney’s application as being instructive.
It seems to me that in determining whether the plaintiff has established that the measures provided for in s. 8 fail to give effect to the requirements of, and are compatible with, the Directive, the two key questions are the following:
(1) Has the plaintiff established that the approved road development has been altered or extended in a manner which may have adverse effects on the environment?
(2) Has the plaintiff established that it is the directions issued by the Minister pursuant to s. 8 that now entitle the Council to proceed with an approved road development.
On the first question, it is the change in the body of knowledge in existence as to the historical and archaeological significance of the Carrickmines Castle site between 1997 and 1998, when the 1997 EIS was prepared and the order was made under s. 51 of the Act of 1993, and August 2004, when the Minister made the directions, which the plaintiff contends brings the matter within the ambit of point 13 of Annex II. The Minister has, in effect, admitted that such a change has occurred in his defence in that he has pleaded as follows:
“The extensive excavations have uncovered a series of outer defence ditches or fosses into which the local river may have been diverted so as to create water filled moates and a section of medieval wall and other medieval structures. The substructure of various buildings were also revealed including what may potentially be the remains of the castle chapel, workshops, kilns, wells and store rooms. A large volume of pottery pieces, coins, worked flints and leather footwear were also discovered, as well as human remains. The extensive excavations have not unearthed the foundations of the castle proper, nor any associated internal areas of habitation.”
The Minister makes the point that the excavation was prescribed as part of the mitigation measures under the environmental impact assessment process. Counsel for the Minister suggested that there is a certain irony in this.
In Dr. Clinton’s uncontroverted affidavit of 27th August, 2004 it is averred that what was known by the Minister on 5th August, 2004 was, in archaeological terms, radically different from the state of knowledge reflected in the 1997 environmental impact statement, as approved by his predecessor on 19th October, 1998. I find as a fact that there has been a radical change. In particular, the extent of the revetted fosse was not known. It is not in dispute, that in consequence of the works, a large part of that fosse would seek to exist.
However, I believe that there is a fault line running through the plaintiff’s contention that there is a necessity for a further environmental impact assessment because of this change in that it seems to me that two concepts are conflated: archaeological assessment and the assessment of the environmental effects generally. It is clear that what the Directive envisages is that the environmental impact statement should be based on current knowledge at the time of its preparation. The fact that, as happened here, in consequence of the steps taken on foot of the environmental impact assessment there is a considerable accretion to that knowledge, does not, of itself, change the project.
The project is the road development. Section 8 does not empower the Minister to change the project, and, as a matter of fact, the directions have not changed the project. Accordingly, the answer to the first question is negative.
In relation to the second question, it is the orders of 19th October, 1998 which entitle the Council to proceed with the project, which is the road development, not anything contained in or done pursuant to s. 8. It was submitted on behalf of the Minister that the constraints imposed by the National Monuments code, including s. 8, are an extra layer of regulation separate and distinct from the regulatory regime to which planning and development decisions give effect. In the context of the application of the Directive, in my view, that submission is correct, even if, in the case of s.8, it is less rigorous than the layer of regulation provided for in s. 14A. I think that this becomes obvious if one considers what would have been the position if, say, early in 2003 the provisions of s. 14 of the Act of 1930, as amended, had been properly complied with, but on the basis that the relevant functions were exercisable without regard to the changes purported to be effected by the order of 1996. If the necessary consent and approval of the consent, including the tacit approval of both Houses of the Oireachtas, had been properly put in place, in my view, it could not be seriously contended that it was compliance with the requirement of s. 14 which enabled the road development to proceed. The fact that a multiplicity of functions under various enactments are reposed in the same member of the Executive, the Minister, may give rise to an incorrect perception as to the source of the authority to complete the South Eastern Route. If that is the case, the following passage from the judgment of Hardiman J. in Dunne No. 1 should dispel the perception:
“No doubt, it is a somewhat odd position that a Minister with an interest in the road building programme is the person who requires to give consent under the National Monuments Act, even in relation to a monument whose removal or alteration, in whole or in part, is proposed for road building purposes. However, the Court must presume that the Minister would correctly direct himself, if asked for a consent under s. 14, that he was then discharging a freestanding statutory function to which many of the considerations which properly influenced him in other capacities were irrelevant or improper to consider.”
On the basis of the foregoing answers to what I consider to be the two key questions, I conclude that the works regulated in accordance with s. 8 do not fall within the ambit of point 13 of Annex II and that the directions which have been issued by the Minister under s. 8 do not constitute a development consent and, accordingly, that the implementation of the directions will not contravene the Directive.
In the light of the conclusions I have reached in relation to the applicability of the Directive to the procedure provided for in s. 8, it is unnecessary to consider the alterative argument advanced on behalf of the Minister that the Directive does not apply to the works the subject of s. 8 by virtue of Article 1 (5) because the environmental impact of those works has been considered as part of the legislative process in the Dáil and Seanad. I would merely comment that this argument is advanced on the basis that the works do constitute a project, which is totally at variance the primary submission made on behalf of the Minister.
Finally, it is not necessary to consider what the appropriate remedy would be if s. 8 was found to be in conflict with the Directive.
Application for reference
At the hearing, counsel for the plaintiff requested the court to refer the question whether the giving of directions by the Minister pursuant to s. 8 is a development consent for the purposes of the Directive to the European Court of Justice under Article 234 E.C. for a preliminary ruling. At the end of the hearing, draft questions were submitted. The formulation of the questions was not debated at all at the hearing and I make no comment on them. It was submitted on behalf of the Minister that this court does not need the assistance of the European Court on any question of interpretation of Community law and that the decision of the European Court in Wells gives sufficient guidance.
In Wells, in concluding that the question whether the decision determining the new conditions and the decision approving matters reserved by the new conditions constituted a development consent within the meaning of Article A 1 (2) of the Directive was admissible, the European Court stated at (para. 37):
“The question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Article 1 (2) of Directive 85/337 is a question concerning the interpretation of Community law. The Court has consistently held that, in light of both the principle that Community law shall be applied uniformly and the principle of equality, the terms of a provision of community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope is normally given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question…”
As is clear from the portions of the judgment of the Court which dealt with the substantive issue, which I have quoted earlier, it was held that, as a matter of Community law, the new decisions constituted a development consent because they replaced not only the terms but the very substance of the prior consent, the 1947 permission. As a matter of fact the directions made by the Minister neither replace nor alter the approved road development. Whether the consent procedure for projects which fall within the ambit of the Directive is to be carried out in several stages is determined in accordance with national law. As Hardiman J. pointed out in Dunne No. 1, the Minister’s function in relation to regulating interference of national monuments is a freestanding function. Directions given under s. 8 are not a stage of the consent procedure for the implementation of the South Eastern Route scheme.
Accordingly, on the basis that the proper interpretation and application of Community law is clear, I do not accede to the application for a reference under Article 234 E.C.
Constitutional challenge in outline
In asserting that s. 8 is invalid having regard to the provisions of the Constitution, the plaintiff advanced two separate and discrete bases of alleged repugnancy:
(1) That in vesting in the Minister the power to make directions, s. 8 is in conflict with Article 15.2;
(2) That s. 8 is in conflict with the duties and rights recognised and protected by the combined effect of Articles 5, 10 and 40.
I propose to deal with each of these distinct challenges separately.
Section 8, being a provision of a post 1937 statute, carries a presumption of constitutionality.
CHALLENGE BY REFERENCE TO ARTICLE 15.2
Article 15.2 provides as follows:
“1° Sole and exclusive power of making laws for the State is hereby invested in the Oireachtas: no other legislative authority has power to make laws for the State.
2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.”
The plaintiff’s challenge founded on Article 15.2 was directed to the power conferred by s. 8 to the Minister to issue directions in relation to the carrying out of works to which s. 8 relates. That power, it was contended, is an impermissible delegation to the Minister contrary to Article 15 (2) in that –
(a) the Minister is empowered to issue directions which are inconsistent with the principles and policies enshrined in the National Monuments Acts 1930 – 2004, namely that the code thereby created is for the protection, preservation and safeguarding of the historical, architectural, traditional, artistic and archaeological heritage of the State,
(b) paragraph (a) of subs. (2), in not confining the Minister to consideration of archaeological issues but in allowing him to take into account the public interest notwithstanding that the destruction in whole or in part of a national monument may ensue, does not provide any guiding principle or policy by which he is obliged to balance the public interest and the underlying principles and policies of the code,
(c) paragraph (b) of subs. (2) gives the Minister power to act at large and in a manner unrelated to and incompatible and inconsistent with the principles and policies underlying the code, and
(d) the Minister is empowered to act on the basis of a range of criteria, including unspecified policies of the Government or of any other Minister, and no guidance is given as to how the various criteria are to be prioritized or weighed in the balance.
The response of counsel on behalf of the Minister and the other State parties was that the plaintiff’s reliance on Article 15.2 was misconceived. The jurisprudence invoked by the plaintiff was concerned with delegated legislation. Section 8 does not give rise to delegated legislation at all. Rather it is concerned with the making of an administrative decision – the giving of directions. In exercising his power under s. 8 the Minister exercises a statutorily conferred discretion. The exercise of that discretion is open to challenge by way of judicial review. A secondary response was that, in any event, the principles and policies governing the making of directions are clearly set out in s. 8: the legislature has provided that the desirability of preservation must yield to the exigencies of the common good, including the public interest in socially or economically beneficial development.
The classical exposition of the permitted parameters of delegated legislation under Article 15.2 is the following passage from the judgment of O’Higgins C.J. in Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381 (at pp. 398/399):
“The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern state. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This maintains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within permitted limits – if the law is laid down in the statute and the details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
Counsel for the Minister laid particular emphasis on the reference in the above quotation to the giving of powers to a designated Minister “to make regulations or orders”.
More recently, the test to be applied in determining whether delegated legislation comes within the boundaries stipulated in Article 15.2 was considered by the Supreme Court in two cases in which the constitutionality of s. 5 (1) of the Aliens Act, 1935 was at issue.
In the earlier of the two, Laurentiu v. the Minister for Justice [1999] 4. I.R 26 the provision at issue was paragraph (e) of s. 5 (1). The subsection provided that the relevant Minister might, if and whenever he should think proper, do by order (an aliens order) all or any of the things set out in the succeeding paragraphs in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens. The matter covered by paragraph (e) was to –
“make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Éireann and provide for and authorise the making by the Minister of orders for that purpose.”
It was held by the majority of the Supreme Court, following the Cityview Press decision, that the Oireachtas was the sole body with power to legislate and it was for the Oireachtas to establish the principles and policies of legislation. Administrative, regulatory and technical matters only might be delegated. The principles and policies test was to be applied in accordance with constitutional presumptions as to the interpretation of legislation and that the actions of ministers and officials were presumed to be constitutional. The test to be applied was whether that which was challenged as an unauthorised delegation of parliamentary power, was more than the mere giving effect to principles and policies contained in the statute itself. If so then it was not authorised. A special feature of the power under consideration was that the power to expel or deport aliens inhered in State as a sovereign state and not because it had been conferred on particular organs of the State by statute. The power to deport aliens was of an executive nature as it could be exercised by the executive in the absence of legislation. In setting out her conclusions, Denham J. stated (at page 63) that the legislature had grasped the power over aliens from the executive and then delegated inadequately to the Minister. It had abdicated its power. Earlier (at p. 62) she had stated that principles and policies such as those discussed in the Cityview Press case were not present. Standards, goals, factors and purposes such as those set out in Mistretta v. United States (1989) 488 U.S. 361 were absent.
The provision at issue in the later case, Leontjva v. DPP and Ors., in which judgment was delivered by the Supreme Court on 23rd June, 2004, was paragraph (h) of s. 5 (1) which empowered the relevant Minister to –
“require such aliens to comply, while in Saorstát Éireann, with particular provisions as to registration, change of abode, travelling, employment, occupation and other like matters.”
In his judgment, Keane C.J. distinguished the decision in the Laurentiu case in the following passage:
“In Laurentiu where the constitutional validity of s. 5 (1) (e) was in issue, the majority were of the view that, in delegating to the Minister the exclusive power of making provision for the exclusion or deportation of aliens (including aliens of a particular nationality), the legislature had abdicated its policy making rule in the entire area of exclusion and deportation to the Minister. In my judgment in that case, I emphasised that the provision under attack could not be construed as a formulation of the policy of the State in relation to the exclusion and deportation of aliens, leaving the detailed aspects of the policy to be filled in by subordinate legislation. Since the right to exclude and deport aliens derived from the character of Saorstát Éireann as a sovereign state, it was not vested in the State by virtue of the 1935 Act. It followed that the only policy being implemented by the 1935 Act and the delegated legislation purportedly made thereunder was the regulation of the exercise of that sovereign power by the executive. Conferring the exclusive right so to regulate its exercise on the Minister was not the choice of a particular policy by the legislature: it was the assignment by the executive to the legislature of exclusive responsibility for determining policy in that specific area, including decisions as far reaching as the exclusion from the State of all persons of a particular nationality.
No such considerations, in my view, arise in the case of s. 5 (1) (h). The policy enunciated is plain: the desirability of regulating the registration, change of abode, travelling, employment and occupation of aliens while in the State and the further desirability of regulating ‘other like matters’.
The court held that s. 5 (1) (h) was not inconsistent with Article 15.2.”
In Casey v. Minister for Arts [2004] 2 ILRM 260 the Supreme Court considered a challenge to the lawfulness of an administrative scheme which regulated access to Skellig Micheál, a national monument in the ownership of the Minister by commercial boat operators. The constitutionality of a statutory provision delegating power was not at issue. The argument was that the administrative scheme failed to meet the test laid down by the Supreme Court in the Cityview Press case. In dealing with this argument, Murray J., as he then was, stated as follows as p. 277:
“The fundamental issue in this case therefore remains whether in introducing a system for the grant of permits of certain boat operators by way of administrative arrangements the respondent was acting intra vires her powers and obligations under the National Monuments Acts, 1930 – 1974. Although there are parallels to be drawn between the criteria which may be applied to ascertain whether an administrative act by a Minister in the carrying out of his or her statutory functions falls properly within the ambit of his/her statutory powers and the exercise of a delegated power to make legislation, such as the principles and policies criteria, the question of whether what the respondent did in this case involved an unconstitutional delegation of power to legislate or the exercise of a delegated legislative function in an unconstitutional manner does not arise. We are not concerned here with the making or the enforcement of a legislative instrument. The preservation and protection of national monuments is quintessentially an administrative matter to be achieved by implementing policy decisions.”
In my view, the primary submission made on behalf of the Minister and the other State parties is correct: s. 8 does not confer any power to make law on the Minister. What it does is to confer power on him to do administrative acts – to issue directions for the carrying out of the works to which the section applies. Indeed, on the basis of what I believe to be the correct construction of s. 8, it mandates him to do administrative acts.
It is clear on the face of s. 8 what the policy of the Oireachtas is in relation to the completion of the South Eastern Route. As I have already stated, it is to ensure its completion without any input in relation to national monument implications from any party external to the Minister and his advisors and the Council and its advisors. The manner of implementation of that policy is set out in s. 8. It is that the works affecting the Carrickmines Castle site will be carried out by the Council on the directions of the Minister. The implementation of this policy undoubtedly effects a change in the law. Moreover, it creates special legislative arrangements in relation to a segment of the South Eastern Route. It is undoubtedly within the competence of the Oireachtas under Article 15.1 to make such a law, assuming it does not infringe any other provision of the Constitution.
The policies and principles by reference to which the directions are to be issued are stipulated in s. 8. Paragraph (a) of subs. (2) defines the scope of the directions. Paragraph (b) sets out the criteria which may inform the Minister’s decision. While the Minister is given a wide discretion both in terms of the scope of the directions and the criteria to which he may have regard, assuming again that no other provision of the Constitution is infringed, it is within the competence of the Oireachtas under Article 15.2 to make a law giving such a wide discretion. It is presumed, of course, that the discretion will be exercised in a constitutional manner.
If, by reference to the judgment of O’Higgins C.J. in the Cityview Press case, a question is posed as to where and by what authority the law which implements the obvious policy in relation to the completion of the South Eastern Route was made, in my view, there can be only one answer. It was made in Leinster House and signed into law in Áras an Uachtarán and it was made on the authority of the Oireachtas.
Accordingly, I am satisfied that the challenge to s. 8 based on Article 15.2 fails.
Constitutional challenge by reference to articles 5, 10 and 40
Article 5 provides:
“Ireland is a sovereign, independent, democratic state”.
Article 40.3.1° provides:
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and to vindicate the personal rights of the citizen.”
Although the plaintiff has invoked Article 10, it was acknowledged by his counsel that that Article is of debateable relevance in the context of this case.
Counsel for the Minister submitted, not unfairly in my view, that the plaintiff’s claim based on Articles 5, 10 and 40 is nebulous and hard to pin down. The plaintiff’s own counsel acknowledged, realistically in my view, that it is an ambitious claim and that it sails into uncharted waters.
In support of this basis of constitutional challenge the following argument was advanced on behalf of the plaintiff. There is a duty on the State to preserve and protect the national heritage, including monuments of historic and archaeological interest. However, the duty is not absolute or unqualified. There is a correlative right in the People and in individual citizens to have such monuments preserved and protected. The right of the individual citizen is one of the unenumerated personal rights protected by Article 40.3. It is recognised that such duty and right may come into conflict with other duties and rights imposed and protected by the Constitution. When legislating, the Oireachtas must balance the competing rights. The power of the court to intervene is governed by the following principles:
(1) The principle enunciated by the Supreme Court in Tuohy v. Courtney [1994] 3 I.R. 1 (at page 47) in the context of a challenge to the constitutionality of certain provisions of the Statute of Limitations, 1957 in the following terms:
“The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function [of constitutional rights and duties], the role of the courts is not to impose their view of the correct or desirable balance in substitution with a view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”
(2) The principle of proportionality as enunciated by Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 (at p. 607) in the following terms.
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society….The object of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
(a) be rationally connected to the objective and not arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible; and
(c) be such that their effects on rights are proportional to the objective…”
As I understand the plaintiff’s argument it is that s. 8 should be struck down under both principles because it is a disproportionate interference on his right as a citizen that the State should protect and preserve the national heritage so far as is reasonably achievable and that it is not an interference which can be adjudged reasonable by applying an objective standard. As I understand it, the specific complaint is that the Oireachtas did not provide in s. 8 for an evaluative process which gives appropriate weight to the protection of the heritage and to the status of Carrickmines Castle and does not incorporate any appropriate safeguards, such as the obligation to consult with the Director of the National Museum.
In response, counsel for the Minister argued that reliance on Articles 5 and 40 does not give the plaintiff standing to challenge the constitutionality of s. 8. The challenge to the constitutionality of s. 8 must be predicated on the plaintiff establishing that he has a constitutionally protected personal right. The plaintiff has not established any constitutionally protected right capable of being invoked. He is inviting the court to stray into the realm of policy which is the sole domain of the legislature under the doctrine of separation powers.
Counsel for the plaintiff submitted that the courts have an honourable record in protecting national monuments. He referred to the decision of the Supreme Court in Tormey v. Commissioners of Public Works, in which judgment was delivered in the Supreme Court on 21st December, 1972 by Ó Dálaigh C.J., which is now set out as an appendix to the report of Howard v. Commissioners of Public Work at [1993] I.L.R.M. 703. That case concerned a challenge to a compulsory purchase order made under the Act of 1930 in relation to lands forming part of the Hill of Tara. He also referred to the decision of the Supreme Court in Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 in which the proposed use of a quarry as a refuse dump at the site of the Carrowmore, passage graves was restrained on various grounds, including that it was a breach of s. 14 of the Act of 1930. I do not find either authority to be of any particular relevance to the matters to which the plaintiff is canvassing on this aspect of his claim.
The plaintiff principally relies on a number of authorities which his counsel submitted establish the constitutional context in which the duty and right which he contends for can be identified or, at any rate, be seen to be germinating.
Chronologically, the earliest of the authorities is O’Callaghan v. Commissioners of Public Works [1985] I.L.R.M. 364. In that case the plaintiff was challenging the making of a preservation order under s. 8 of the Act of 1930 in relation to a prehistoric promontory fort in North County Dublin, which was part of a plaintiff’s farm, on the ground, inter alia, that s. 8, which included no provision for the payment of compensation for the owners of land containing national monuments, was an unjust attack on the property rights of citizens within the meaning of Article 40.3.2° of the Constitution. He failed both in the High Court and the Supreme Court. The plaintiff referred to the following passage from the judgment of O’Higgins C.J. on the constitutional issue (at p. 367):-
“It cannot be doubted that the common good requires that national monuments which are prized relics of the past should be preserved as part of the history of our people. Clearly, where damage to such monuments is a probable result of unrestricted interference by the owners or other persons, a conflict arises between the exigencies of the common good and the exercise of property rights. This is particularly so where, as in this case, the interference initiated by the owner involves the ploughing and consequent destruction of that which constitutes the monument.”
The principal source of the constitutionally protected right for which he contends suggested by the plaintiff is the decision of the Supreme Court in Webb v. Ireland [1988] IR 353, in which the State’s entitlement to possession and ownership of the Derrynaflan Hoard was at issue. Expressing the majority view of the Court Finlay C.J. stated as follows (at p. 383):-
“It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern states, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that a necessary ingredient of sovereignty in a modern state and certainly in this State, having regard to the terms of the Constitution, with an emphasis on its historical origins and a constant concern for the common good should be an ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.”
Finlay C.J. invoked both Article 5 and Article 10, which provides that, inter alia, “all royalties” within the jurisdiction belong to the State, when construed in the light of Article 5, to support his conclusion that there exists in the State a right or prerogative of treasure trove having the characteristics of treasure trove as known at common law.
In his judgment in Webb, Walsh J., while disagreeing with the majority view that Article 10 ruled the case, expressed a full agreement with the views set out in the passage of the judgment of Finlay C.J. quoted above. He set out his concept of ownership in the State of antiquities of importance in the following passage at p. 390:-
“When I speak of ownership in this context, I speak of a claim of ownership as against all the persons except those who can establish a title by succession to the original owner of the chattels and other materials which make up this heritage. However, I do not wish to be understood as saying that it would not be within the competence of the Oireachtas to vest ownership in the State in the interest of the common good in accordance with Article 43 of the Constitution, and subject to the payment of just compensation, if in the circumstances justice required the payment of compensation. I fully agree that when the Chief Justice says that it would be inconsistent with the framework of the society which is created by the Constitution and which has sought to be protected by that Constitution that such objects could become the exclusive property of those who by design or by chance discover them and take possession of them. In my view that opinion applies to the owners of the land in or on which they are found or to any other persons who find them in or upon the lands. But unless and until legislation be enacted the State must be regarded as owners in the sense of having a better right to possession than anyone else. I am content to base my opinion upon what I believe to be the fundamental duty of the State to safeguard all the national assets whether truly in the ownership of private individuals and more importantly, where the owner is not known or cannot be ascertained.”
Having outlined his views on the non-applicability of Article 10, Walsh J. summarised his views as follows (at p. 393):
” I am satisfied that the People as the sovereign authority having by the Constitution created the State, and by Article 5 declared it to be a sovereign state, have the right and duty, acting by the State which is the juristic person capable of holding property by virtue of the Constitution, to exercise dominion over all objects forming part of the national heritage, whether they be found or not, subject always to the lawful title of the true owner if and when the true owner is discovered and to exercise full rights of ownership when no true owner can be ascertained.
It is within the power of the Oireachtas, acting on behalf of the People, to make such arrangements as it sees fit by legislation for the disposal or other use of all such objects, subject to all the provisions of the Constitution, as the Oireachtas deems proper in the interest of the common good. While it is not for this Court to indicate to the Oireachtas how this power should be exercised, it is the duty of this Court to state that pending any such legislation the State is entitled to possession of all such objects unless and until the true successors in title of those who hid them for safekeeping can be ascertained.”
Finally, counsel for the plaintiff referred to the decision of this Court (Barr J.) in In Re La Lavia” [1999] 3 I.R. 413 in which, following Webb, Barr J. held that maritime archaeological wrecks and related artefacts found on or under the sea-bed in Irish territorial waters, like similar objects discovered on land, are the property of the State. Barr J. also held that the Commissioners of Public Works, in whom the relevant function was then vested under the National Monuments Acts, as agents for the State, had a duty to take all reasonable steps to investigate, regulate, protect and safeguard archaeological finds made in Irish territorial waters and, where possible, to cause such objects to be retrieved, conserved and displayed for the benefit of the Irish people and other interested persons.
It is necessary at this juncture to comment generally on the challenge of the Minister and the other State parties to the standing of the plaintiff. In their defence, these defendants pleaded that the plaintiff does not have sufficient interest or locus standi to maintain a challenge to the provisions of the Act of 2004, in that he is not, it was alleged, able to point to any personal right of his affected by that Act, nor is he a person affected by the proposed road development or proposed works as a neighbouring land owner or otherwise. Further, it was pleaded that the plaintiff does not have sufficient locus standi to maintain a challenge based on the Directive, in circumstances where the plaintiff did not participate in the 1997 EIS process. At the hearing, counsel on behalf of these defendants clarified the position and confirmed that their position was that the plaintiff does not have standing to invoke Article 40.3 or to invite indirect scrutiny of the orders made on 19th October, 1998. As I consider that the plaintiff has not indirectly raised the issue of the adequacy of those orders, that last point does not arise.
There is a very helpful introduction to the discussion on the topic of locus standi for constitutional challenges in Kelly on the “Irish Constitution”, 4th edition, at p. 807 in the following terms:
“The question of locus standi of a party wishing to challenge the invalidity of an Act of the Oireachtas (or the constitutionality of a pre-Constitution statute) has received much consideration in a series of recent decisions. Although the law in this area is still evolving and lacks precision, the following principles seem to emerge. First, the courts will only entertain a constitutional challenge where it is demonstrated that the litigants’ rights have been either infringed or threatened. Secondly, the courts will only listen to arguments based on the plaintiff’s own personal situation and will generally not allow arguments based on a jus tertii. However, since ‘every member of the public has an interest in seeing that the fundamental law of the State is not defeated’ the courts will permit a citizen to challenge an actual or threatened breach of a constitutional norm where there is no other suitable plaintiff or where the threatened breach is likely to affect all citizens in general.”
The decision of this court (O’Hanlon J.) in Madigan v. Attorney General [1986] I.L.R.M. 136 is cited as authority for the second proposition and was relied on by counsel for the Minister and the other State parties in this matter. In Madigan and the associated matter which was tried with it, the plaintiffs challenged the validity of provisions of the Finance Act, 1983 which imposed a residential property tax on the basis that it infringed rights of the person and family, and of property and privacy, to be found in Articles 40 and 41 of the Constitution. Having reviewed the law on locus standi, O’Hanlon J. held that he must leave out of consideration any matters relied on the plaintiffs in their challenge which were not relevant to the circumstances of the plaintiffs themselves, or any of them.
The issue of locus standi was raised both in Dunne No. 1 and Mulcreevy. In Dunne No. 1, Hardiman J. held that, for the purposes of the interlocutory application, it was indisputable that an arguable case for the plaintiffs standing had been established (p. 574). Mulcreevy, as stated earlier, was an application for leave to issue judicial review proceedings on notice. Keane C.J. held that the plaintiff did have locus standi to institute the proceedings. In dealing with the issue at (p. 426) he stated as follows:
“While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.
It has been made clear in decisions of the High Court and this court in recent times that it is not in the public interest that decisions by statutory bodies which are of at least questionable validly should wholly escape scrutiny because a person who seeks to invoke the jurisdiction of the court by way of judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision. …
It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and vexatious challenges are not entertained.”
Keane C.J. went on to point out features which distinguished Mr. Mulcreevy’s situation from that of the plaintiff in Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 IR 270. It is perhaps worth noting that no issue of constitutional validity of a statute arose in the Supreme Court in the Lancefort case.
The essence of this aspect of the plaintiff’s claim, as I understand it, is that, in enacting s. 8, the Oireachtas has put in place arrangements which are inimical to, and fail to safeguard and protect, a monument which is part of the natural heritage in contravention of the States obligation derived primarily from Article 5 of the Constitution. I am of the view that there is authority for the proposition that he has locus standi to maintain this challenge.
It is beyond doubt that it is a constitutional imperative that the State safeguard the national assets, including monuments of cultural and historical significance. The plaintiff properly recognises that that duty is not unqualified. In Mulcreevy, an argument that, where the interference with a national monument could not be justified on the ground that it was in the interests of archaeology or was required in the interest of public health or safety, the approval of the Minister under s. 14 of the Act of 1930, as it was in force before the enactment of the Act of 2004, could only be given for the protection and preservation of national monuments and archaeological objects, got short shrift. Keane C.J., in a passage (p. 334), which is also apposite to the argument advanced by the plaintiff in relation to the challenge under Article 15(2), stated as follows:
“I am satisfied that this argument is entirely misconceived and that the applicant has failed to establish a stateable or arguable case to support this ground. The Oireachtas plainly intended that, in cases where neither archaeological considerations nor public health and safety could be invoked, the Environment Minister should enjoy a wide residual discretion to permit the interference with the national monument, subject to the qualification that his order had to be laid before both Houses of the Oireachtas. To confine the exercise of his discretion to cases in which it could be said that he was ensuring the protection or a preservation of a national monument or the preservation of archaeological objects would be to render that residual discretion entirely meaningless, since the acts contemplated by the approval – the destruction, removal, etc. of the monument in whole or in part – far from protecting or preserving the monument would have precisely the opposite effect. If this argument were well founded, no such approval could ever be given.”
Of course, what was at issue in Mulcreevy was not the validity of a statutory provision having regard to the provisions of the Constitution, but the validity of the exercise of a statutory discretion. However, as the passage shows, historically, in regulating the protection of national monuments, the Oireachtas has given a considerable degree of latitude to the decision maker. As is clear from Webb, it is for the Oireachtas to determine the policy for the protection of the national heritage consistent with the provisions of the Constitution and in the interest of the common good.
I cannot see, however, how the duty of the State to safeguard the national heritage can translate into a personal right of the type which, although unspecified, is protected by Article 40.3. In my view, the plaintiff has not established that he is entitled to invoke Article 40.
It is not inconceivable that in a hypothetical case, a person in the position of the plaintiff, a concerned private citizen, could successfully challenge a statutory measure on the basis that it purported to permit a clear-cut breach of the State’s duty to protect the national heritage. This is not such a case. In inviting the court to review s. 8 in the light of the State’s duty to safeguard the national heritage and the other requirements of the common good, the plaintiff is asking the court, to use the metaphor used by Keane C.J. in TD v. Minister for Education [2001] 4 IR 259 at 288, to cross a Rubicon and to undertake a role which is conferred by statute on the Oireachtas under the Constitution. The court cannot do that.
Accordingly, the plaintiff’s claim that s. 8 is invalid by reference to Articles 5, 10 and 40 fails.
Decision
The plaintiff is not entitled to any of the reliefs claimed.
Browne v Attorney General,
unreported, High Court, March 6, 2002, Kearns J
Judgment of Mr. Justice Nicholas Kearns delivered this 6th day of March, 2002
Introduction
1. This is a case about tuna fish and dolphins and the implementation in Irish law of an EU Regulation. The albacore tuna is a migratory species which may be found off the Azores in June and which moves gradually north east over the following four to five months. This species feeds on a variety of prey, including certain fish types, squid and saury, which are also prey items for dolphins. In the North East Atlantic, the albacore tuna fishery operated by French and Spanish vessels dates back to the 19th Century. Traditionally, tuna were caught on troll-lines towed behind the fishing vessel, but following a reduction from 1,000 to 50 vessels in the French tuna fleet between 1950 and 1986, drift net fishing techniques were introduced in an attempt to relaunch the French tuna industry. This proved economically viable and, following trials, Ireland followed suit in the early 1990’s. By 1993 there were some 90 Community vessels engaged in drift net fishing for tuna, of which 64 were French, 16 Irish and 10 British. Spanish vessels, which are prohibited by Spanish law from using drift nets, continue to troll for tuna with a fleet of between 600-700 vessels, most of which operate in the North East Atlantic.
2. Drift nets have been used to catch fish for many centuries but since the use of mono-filament in net manufacture during the 1960’s, increasing concern was expressed over the number of non-target species being caught, notably dolphins, who, like tuna, often swim close to the surface.
3. A drift net consists of a number of sheets of common gill net which are joined together and which when deployed by “shooting” or “streaming”, are maintained in a vertical position in the water in a wall-like fashion by a line of floats at the top and a line of weights at the bottom. Such nets can be of varying length and, in certain instances in the Pacific, were up to 50 kilometres in length. A drift net is defined in the Sea Fisheries (Drift Nets) Order 1998 (SI 267/1998) (The Irish Regulation) as ” a wall of netting used in fishing, which is free to move according to the wind and tide”. To reduce the risk of catching dolphins, some drift nets incorporate gaps or doors through which dolphins can sometimes escape.
4. Accordingly, and not merely because of any perceived threat to fish stocks but also because of concerns that by-catches of cetaceans (marine mammals) were unacceptably high, the UN called upon all members of the International Community to agree to an immediate cessation to further expansion of large scale pelagic drift net fishery activities on the high seas. It passed a number of resolutions, to which in turn the EU responded in 1992 by adopting Regulation 345 which set a maximum length of 2.5 kms for drift nets used by EU vessels. This Regulation provided for a number of derogations.
5. In April 1994 the Commission of the EU reported to the Council both on drift netting and in relation to the various derogations, finding that a proposal was necessary to provide for the cessation of all fishing activities using drift nets and the immediate application of special control measures. Majority support among the Member States for such a ban was not forthcoming until the presentation in 1998 of a UK Presidency compromise proposal which in June 1998 resulted in the adoption of Regulation 1239/98 (“The EU Regulation”). The EC Regulation altogether banned drift netting for tuna fishery in the North Atlantic and Mediterranean with effect from January 1st 2002 and provided for a cap on the number of vessels that, subject to the 2.5 km net length restriction, could still participate in the drift net tuna industry for the period from 1998 to the end of 2001.
6. Both France and Ireland voted against the adoption of the regulation, contending, in Ireland’s case, that there was no scientific evidence that albacore tuna stocks were over-exploited or that drift netting resulted in biologically significant by-catches of dolphins. Tuna fishing was for Ireland of significant socio-economic importance, involving, prior to capping, some 30 boats in Counties Cork and Kerry, fishing mainly out of Dingle and Castletownbere. Part of the relief sought in these proceedings is a declaration that the EC Regulation (which had amended Council Regulation [EC] 894/97) is unlawful and invalid as being contrary to EC law. A referral under Article 234 to the European Court of Justice is sought for that purpose. However, the more immediate task with which the Court is concerned is to inquire whether the EC Regulation has been properly transposed into Irish law, given that the Applicant herein faces prosecution on charges in the Cork Circuit Court as a result of allegedly infringing the implementing measures provided for by the Irish Regulation.
The Facts
7. Vincent Browne, the Applicant, is from Castlegregory, Co Kerry and is the master of an Irish fishing boat, the MFV “Antonia”, which sails out of Castletownbere. He is a member of the Irish Tuna Association and has an authorisation to fish, inter alia, for tuna.
8. On the 15th of June 2000 he departed from Dingle in Co Kerry with a view to fishing for tuna, prior to which he had obtained a permit issued by a Sea Fisheries Officer pursuant to the Irish Regulation. In his Affidavit he deposes that the vessel was carrying 2.5 kilometres of drift net and was also carrying approximately 4 kilometres of gill net, which was rigged similarly to a drift net, but which had in addition 5 sea anchors for attachment to the net, together with 2 heavy steel gill net anchors for attaching at each end of this stretch of approximately 4 kilometres of gill net and in excess of 600 fathoms of rope for attaching these heavy steel gill net anchors. He deposes that these anchors are intended to and do in fact assist in preventing the nets when set from drifting according to wind and tide and contends accordingly that the second length of net was not a drift net as defined by the Irish Regulation.
9. The vessel travelled some 400 miles from Dingle in a south westerly direction and ended up fishing in an area some 190 nautical miles outside of the 200 nautical mile exclusive fishery limit of the State. There the vessel fished for tuna between the 18th June – 23rd June, 2000. At about 4.30 p.m. on Saturday, 24th day of June 2000, the boat was boarded by a boarding party from an Irish Naval vessel the LE “Deirdre” led by Sub-Lieutenant Bernard Heffernan.
10. The Applicants log book recorded possession of the 2.5 kms of drift net and 4.5 kms of gill net which nets were then inspected by members of the Naval Service. The log of the vessel was inspected, as was the fishing gear and nets which were then in the net pound at the stern of the vessel. The Naval Officer then requested the Applicant to shoot all of the net on board into the water, for the purpose of measuring it’s length. He noted that the anchors and fittings were not rigged to the second net. In cross-examination before this Court he agreed that Mr Brown had said at the time that this second net hadn’t been used. He also stated, however, that this second net was exactly the same as the first net on inspection. He agreed that the 2.5 km length of net was in 12 sections and was a continuous wall with no gaps or doors. Having shot the nets, the same were measured at 2.545 kms and 4.554 kms respectively.
11. Having thus ascertained the length of net or nets, Officer Heffernan cautioned the Applicant and informed him that he was being detained for the offence of keeping on board, or using for fishing, one or more drift nets whose individual or total length was more than 2.5 km contrary to Article 11 of the Council Regulation (EC) 1239/98 amending Council Regulation (EC) 894/97. The Applicant indicated that he understood the caution and commenced hauling his gear. Later that evening, Officer Heffernan’s Commanding Officer gave orders that the Applicant be directed to make best speed for Castletownbere where both vessels arrived on Monday the 26th day of June 2000. On arrival, the vessel was met by Garda Hegarty of Castletownbere and two Sea Fisheries Officers of the Department of the Marine following which Garda Hegarty detained the boat on suspicion of having committed an offence pursuant to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended.
12. Following an inspection of the vessel, Garda Hegarty handed over custody of same to Sergeant O Donovan of Castletownbere, at which point the Applicant and his solicitor were informed there would be an application made to the District Court in Macroom for a detention order for 48 hours in accordance with the provisions of the Fisheries (Consolidation) Act 1959 as amended. The last named Respondent granted a detention order for 48 hours, during which time the fish was off-loaded from the “Antonia” and sold, the proceeds whereof amounting to £16,900.00 have been retained pending the outcome of the prosecution. The Applicant was subsequently arrested and charged on the 28th of June 2000 with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Preliminary examinations were waived and the Applicant was returned for trial to the Cork Circuit Criminal Court following which the vessel was released to the Applicant subsequent to the entry of bail bonds to secure the release of the boat and gear. Throughout these procedures, the Applicant’s solicitors maintained an objection that there was no authority in any Irish legislation giving powers of detention to the Naval Service in respect of Irish fishing boats on the high seas.
13. The first of the two charges charges the Applicant that he did on the 24th day of June 2000 keep on board the sea fish fishing vessel “Antonia” a drift net prohibited by Article 11 of Council Regulation (EC) 894/97 of the 29th April 1997 as amended by Council Regulation (EC) 1239/98 of the 8th June 1998 and of Part 4 of the Sea Fisheries drift Net Order, 1998 (SI 267/98) contrary to Section 223A of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment) Acts 1978,1983 and 1994. The second offence charged is that the Applicant did on the same date use for fishing one or more drift nets prohibited by the same Article, contrary to Article 3 of the Sea Fisheries (Drift Nets) Order 1998, contrary to Section 223A of the Fisheries (Consolidation) Act, 1959, amended as already stated.
14. On the 19th December 2000, Kelly J gave leave to the Applicant to apply by way of Judicial Review for the following reliefs:-
1. An Order of Prohibition directed to the first named Respondent herein prohibiting him from prosecuting the Applicant in the Cork Circuit Court on the charges proffered by him and contained in Castletownbere charge sheets No. 27 and 28 of 2000.
2. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on or about the 28th June 2000 whereby he returned the Applicant for trial to the Cork Circuit Criminal Court on foot of the charges contained in Castletownbere charge sheets No. 27 and 28 of 2000.
3. An Order of Certiorari quashing the Order made by the fourth named Respondent herein on the 26th June 2000 pursuant to Section 233A of the Fisheries (Consolidation) Act 1959 (as amended by Section 12 of the Fisheries [Amendment] Act 1978 and as amended by Section 11 of Fisheries [Amendment] Act 1994) whereby he directed the continued detention by Garda Martin Hegarty of the Sea Fishing boat “Antonia” of which the applicant is the Master and the persons on board at the Port of Castletownbere for a period of 48 hours from 10.09 p.m. on the 26th June 2000.
4. A declaration that the boarding, arrest and detention of the Fishing Boat “Antonia” on or about the 24th June 2000 190 miles outside the exclusive fishery zone of the State was unlawful and unauthorised by law.
5. A declaration that bottomset nets or anchor fixed gill nets on board the Antonia do not constitute drift nets for the purposes of Council Regulation 1239/98 or the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998).
6. A declaration that the Sea Fishers Drift Net Order 1998 (SI 267 of 1998) is ultra vires the powers of the third named Respondent herein and contrary to the European Communities Act 1972 as amended and/or contrary to Section 5 of the Fisheries (Amendment) Act 1983.
7. A declaration that the Fisheries (Drift Nets) Order 1998 (SI267 of 1998) is ultra vires the powers of the third named Respondent herein pursuant to Section 223A of the Fisheries Consolidation Act 1959 as inserted by Section 4 of the Fisheries Amendment Act 1983 or alternatively the said section is invalid having regard to the provisions of the Constitution and in particular Article 15 thereof.
15. Other reliefs sought, including a possible referral under Article 234 of the Treaty of the European Communities referring the matter to the Court of Justice, to which I have already made reference, need not be detailed further at this point.
16. The grounds upon which relief was sought include the following:-
1 The Applicant has been arrested, detained, charged and returned for trial for a matter which is not an offence known to Irish law.
2 The activity complained of by the first named Respondent is outside the jurisdiction of the State and the entitlement of the first named Respondent to prosecute for same.
3 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are outside the jurisdiction prescribed by Section 10 of the Maritime Jurisdiction Act 1959 as amended, as it is not within the territorial seas or internal waters of the State.
4 The offences alleged against the Applicant in Castletownbere charge sheets 27 and 28 of 2000 are not alleged to have been committed within the exclusive fisheries limits prescribed by the Government pursuant to Section 6 of the Maritime Jurisdiction Act 1959 and as laid down in the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976.
5 The offences alleged do not come within the scope of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) made pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended (as inserted by Section 4 of the Fisheries Amendment Act, 1983) under Chapter 2 of Part 13 of the 1959 Act which sets out the statutory provisions applicable to the exclusive fishery limits of the State. The previous statutory instruments (SI 201 of 1994 and SI 262 of 1995) proscribing any infringement of Article 9 (A)(1) of Council Regulation 3094/86 outside the exclusive fishery limits of the State in relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel have been repealed by SI 267 of 1998 and have not been re-enacted by SI 267 of 1998 in relation to any infringement of Council Regulation 1239/98 outside the exclusive fishery limits of the State.
6 The powers of Sea Fishery Protection Officers pursuant to Part XIII of the Fisheries (Consolidation) Act 1959 as amended only apply and are exercisable in relation to offences allegedly committed within the areas comprised within the territorial seas or internal waters of the State under the Maritime Jurisdiction Act, 1959 or within the exclusive fishery limits prescribed by the Maritime Jurisdiction (Exclusive Fishery Limits) Order 1976 and have not been extended or deemed to apply outside the exclusive fishery limits of the State and in particular in relation to Council Regulation 1239/98.
7 The first named Respondent and/or his solicitor were unable to inform the Applicants solicitor orally or in reply to correspondence written by the Applicants solicitor as to what power of detention they were exercising in relation to the Applicant on the High Seas and were also unable to inform the fourth named Respondent herein what power had been exercised or the existence of any particular power which would entitle the Applicant to be arrested and his ship to be boarded and detained but that they did believe that there was such a power.
8 The second named Respondent is obliged when purporting to give effect to Acts or measures adopted by the European Communities or by any of the institutions thereof to use the methods prescribed by law and in particular the methods prescribed by the Oireachtas for the proper implementation of these into domestic law (whether by means of a Regulation made pursuant to Section 3 (1) of the European Communities Act 1972 as amended or, where necessary, by the passage of legislation to be enacted by the Oireachtas in circumstances where this is required, or alternatively by the making of regulations pursuant to Section 224 B of the Fisheries (Consolidation) Act 1959 as inserted by Section 5 of the Fisheries mendment Act 1893).
9 Insofar as the second named Respondent has purported to give effect to Council Regulation (EC) 1239/98 by means of the Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) in purported exercise of the powers conferred to him by Section 223A of the said 1959 Act as amended, and by failing to use Section 3 (1) of the European Communities Act 1972 as amended or Section 224B of the said Fisheries (Consolidation) Act, 1959 as amended or by securing the passage of legislation by the Oireachtas, the said Sea Fisheries (Drift Nets) Order 1998 (SI 267 of 1998) is invalid and unlawful and ultra vires the powers of the second named Respondent herein.
10 Insofar as the second named Respondent made the said 1998 Order purportedly pursuant to Section 223A of the Fisheries Consolidation Act 1959 as amended and insofar as the same
(a) creates an indictable offence on the high seas
(b) defines that offence
(c) purportedly has applied to it the enforcement provisions of Chapter 2 and of Part XII of the 1959 Act, as amended and the prosecution, conviction and penalty provisions of Sections 2 to 4 of the 1978 Fisheries (Amendment) Act as amended by the Fisheries Amendment Acts 1983 and 1994.
The Minister is acting ultra vires Section 223A of the said 1959 Act as it only permits him to regulate the exclusive fishery limits of the State.
11 Alternatively if and insofar as the said regulations are ultra vires the said Section 223A, constitutes an impermissible delegation of law making power by the Oireachtas to the second named Respondent herein, contrary to Article 15 of the Constitution.
The Statement of Opposition
17. The Statement of Opposition contends that the return for trial was made within jurisdiction and denies that any steps taken prior to the making of such Order were unlawful or failed to come within the scope of the Sea Fisheries (Drift Nets) Order 1998.
18. The Statement further contends that the various Orders made by the fourth named Respondent are now spent. Any controversy as to whether the bottomset or anchor fixed gill nets on board the vessel constitute drift nets is a pure issue of fact to be determined by the Court of Trial, and it is submitted that this Court has no jurisdiction or alternatively, should refuse its discretion, to make any declaration on this point. This Statement further contends that the powers of Sea Fishery Protection Officers are not limited in application to offences committed within the territorial seas or within the exclusive fishery limits of the State.
19. Further, the powers of detention, arrest and boarding exercised by the first named Respondent derive from Section 233 of the Fisheries (Consolidation) Act 1959 as amended.
20. Paragraph 13 states as follows:-
“The second named Respondent was entitled at law to make an Order under Section 223A of the Fisheries (Consolidation) Act 1959, as amended, for the purpose inter alia, of giving effect to certain provisions of Council Regulation (EC) 894/97 of April 29th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8th, 1998.”
21. It is further denied that Orders made under Section 223A of the Fisheries (Consolidation) Act 1959 as amended are limited in scope to regulating the exclusive fishery limits of the State. It is further denied that Section 223A of the Fisheries (Consolidation) Act 1959, as amended, constitutes an impermissible delegation of law making by the Oireachtas to the second named Respondent.
The EC Regulations
22. Title VIII of Council Regulation (EC) No 2847/93 of 12th October 1993 established a control system applicable to the Common Fisheries Policy and provided as follows by Article 31:-
“1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of National law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.
3. Sanctions arising from the proceedings mentioned in paragraph 2 may include, depending on the gravity of the offence:
– Fines,
– Seizure of prohibited fishing gear in catches
– Sequestration of the vessel
– Temporary immobilisation of the vessel
– Suspension of the licence
– Withdrawal of the licence”
Given that these enforcement requirements for non-compliance exist, it is contended on behalf of the Respondents in this case that the State, in transposing the EC Regulation, was required to create an offence that was at least capable of being tried on indictment.
23. EC Council Regulation 894/97 lays down certain technical measures for the conservation of fishery resources.
24. Article 11 provides as follows:-
“1. No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5 kilometres.
2. Throughout the fishing referred to in paragraph one, the net must, if it is longer than 1 kilometre remain attached to the vessel. However, within the 12 mile coastal band, a vessel may detach itself from the net, provided that it keeps it under constant observation.
3. Notwithstanding Article 1 (1) this Article shall apply in all waters, with the exception of the Baltic Sea, the Belts and the Sound under the sovereignty or jurisdiction of the Member States, and outside those waters to all fishing vessels flying the flag of a Member State or registered in a Member State.”
25. The Regulation did not contain a definition of “Drift Net”, although the Regulation did define “Bottom Set Gill Nets or Entangling Nets” and “Trammel Nets”. Reference is made in the Regulation to the use of gill nets at Article 9, paragraph 2 (dealing with Mackerel) which, Mr McGuinness on behalf of the Applicant suggests, is indicative that all these types of net are distinguishable from each other.
26. This Regulation was amended by Council Regulation (EC) No1239/98 of the 8th of June 1998. It replaced Article 11 of 894/97 by repeating Article 11 (1) and by adding Article 11A which provided:-
“1. From 1 January 2002 no vessel may keep on board, or use for fishing, one or more drift nets intended for the capture of species listed in Annex 8.
2. From 1 January 2002, it is prohibited to land species listed in Annex 8 which have been caught in drift nets.
3. Until 31 December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the Flag Member State. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more drift nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 to 1997.”
27. Article 6 of the Regulation provided:-
“In the case of failure to comply with the obligations laid down in Articles 11 and 11A and this Article, the competent authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of Regulation (EC) No. 2847/93.”
28. The Regulation further provided that the said obligations should apply in all waters falling within the sovereignty of jurisdiction of the Member States and outside those waters should apply to “all community fishing vessels.”.
29. It was for the purpose of transposing, implementing and providing for enforcement to the Regulation that the Minister for the Marine and Natural Resources on the 28th July 1998 introduced the Sea Fisheries (Drift Nets) Order 1998 (SI 267/98) (The Irish Regulation).
The Irish Regulation
30. In introducing the Irish Regulation, the Minister purported to do so in exercise of powers conferred on him by Section 223A of the Fisheries (Consolidation) Act 1959 as amended, which provides:-
“(1) Chapter II of part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (i) of section 223A (inserted by section 9 of the Act of 1978):
“1. The Minister may, as he shall think proper, by Order prescribe and adapt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries.
(1A) Without prejudice to the generality of subsection (1) of this section, an Order under this may –
(a) relate –
(i) generally to sea fishing or to sea fishing which is of a specified class or description,
(ii) generally to fishing other than sea fishing or to such fishing which is of such of such a class or description,
(iii) generally to fisheries other than sea fisheries or to such fisheries which are of such a class or description,
(iv) generally to fishing boats (including sea fishing boats) or to fishing boats which are of such a class or description,
(v) to boats, other than fishing boats, which are of such a class or description,
(b) for the purpose of enabling the Order to have full effect, extend any or all of –
(i) the powers conferred by this Act on a sea Fisheries Protection Officer for the purposes of this Act
(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act
(iii) the powers so conferred on authorised officers within the meaning of Section 301 of this Act,
(c) Include such incidental supplementary and consequential provisions as the Minister considers appropriate, and in case provisions are included in such an Order by virtue of paragraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the Order
2 An order under subsection (1) of Section 223A (inserted by Section 9 of the Act of 1978) of the Principal Act and which immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made under the first of the subsections inserted in the said Section 223A by subsection (1) of this section and may be revoked or amended as if it had been so made
3 A person who contravenes or attempts to contravene an Order under this Section shall be guilty of an offence
4 The Minister may by Order revoke or amend an order under this section including an order under this subsection”
31. It is interesting to contrast this provision with Section 224 (B) of the Fisheries (Consolidation) Act 1959, which was inserted by Section 5 of the Fisheries (Amendment) Act 1983, and which was clearly envisaged as a vehicle for the transposition of EU measures into Irish law. Section 224B (1) provides:-
“Without prejudice to the generality of Section 3 (1) of the Act of 1972, the Minister may by Regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or of any Act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.”
32. Because the availability of this provision is confined to regulations to be introduced to give effect or have effect within the exclusive fishery limits of the State, it clearly fell short of what the Minister required to create an indictable offence outside those limits on the high seas. Because the creation of an indictable offence was involved, the provisions of the European Communities Act 1972, usually availed of for transposition purposes, were also unavailable.
33. The purported effect of SI 267/98 is to put in place enforcement provisions for Council Regulation 1239/98. Essentially it provides that from the making of the Order no vessel may keep on board or use for fishing one or more drift nets whose individual or total length is more than 2.5 kilometres. The penalties for any breach are contained in the Fisheries (Amendment) Act 1978. It repeals earlier regulations made in 1994 and 1995 wherein an identical definition of drift net appeared and wherein extra territorial application was provided for. It does not purport to bring within it’s ban any other type of net, and in particular any other net which is not free to drift or move according to wind and tide. Nor does it expressly state that when an infringement of the Order occurs, it is by reference to exclusive fishery limits, be it either inside or outside of same.
34. The effect of the Irish instrument is to give the Minister power to create an indictable offence on the High Seas without primary legislation. Whether such a substantial measure can be effected by means of Statutory Regulation is a consideration to which I will now turn.
Implementation by Statutory Instrument
35. Article 249 EC provides:-
“In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.
A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”
36. Article 10 EC provides that:-
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community tasks.”
37. While Community Regulations are directly applicable, they may nonetheless require the making of detailed rules by a Member State to make them effective and this is done by some act or measure of implementation.
38. Under Article 29.4.3, introduced by the third amendment to the Constitution in 1972, it was provided that “The State (might) become a member of the European Economic Community”. Article 29.4 paragraphs 3, 4, and 5, respectively authorised the State by means of successive constitutional amendments to ratify the Single European Act in 1987, the Treaty on European Union (The Maastricht Treaty) in 1992 and the Treaty of Amsterdam in 1997.
39. Article 29.4.7 provides:-
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities (including the European Economic Community) or prevents laws enacted, acts done or measures adopted by the European Union or the Communities or by the institutions thereof, or by bodies competent under the treaties established in the Communities, from having the force of law in the State.”
40. Article 15.2.1. of the Constitution provides:-
“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”.
41. Article 6 of the Constitution recognises the tripartite separation of legislative, executive and judicial powers.
42. Against this Community and Constitutional backdrop, one must then consider the relevant provisions of the European Communities Act 1972 which is a conduit pipe through which Community law may be rendered into domestic law.
43. Described as “An Act to make provision with respect to membership of the State of the European Communities” , it contains the following provisions:-
“2 From the first day of January 1973 the Treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those Treaties.
3(i) A Minister of State may make regulations for enabling Section 2 of this Act to have full effect
(ii) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to theMinister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
(iii) Regulations under this section shall not create an indictable offence”
44. As it is a matter of some importance in this case, I also propose to set out fully the relevant parts of Section 4 of the European Communities Act 1972 as substituted by the European Communities (Amendment) Act 1973:-
“(1) (a) Regulations under this Act shall have statutory effect
(b) If the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect, but without prejudice to the validity of anything previously done thereunder.”
45. This Section replaced the corresponding section of the 1972 Act which provided that regulations under that Act should have statutory effect but, unless confirmed by Act of the Oireachtas passed within six months after they are made, they should cease to have statutory effect on the expiration of that period, without prejudice however to the validity of anything previously done thereunder. The amendment thus watered down but nonetheless preserved an important element of parliamentary supervision over regulations made under the 1972 Act.
46. The essential issue therefore when Community law is being transposed is to determine the circumstances in which Ministerial Regulation, rather than primary legislation, may be resorted to for that purpose, and where it is permissible, to examine if the mode of implementation complies with the requirements of domestic law.
47. Under Irish constitutional principles, ministerial regulations cannot make new law and are permitted only to give effect to the principles and policies contained in the parent Act under which they are adopted. They may not repeal or amend legislation. They may not go beyond the four walls of the particular Act. The parameters were defined by O’Higgins CJ in Cityview Press Limited-v-An Chomhairle Oiliuna (1980) IR 381 (at p399):-
“In the view of this Court the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
48. In Meagher-v-The Minister for Agriculture and Food (1994) 1IR 329 it was held by the Supreme Court that Section 3 of the 1972 Act was not invalid having regard to the provisions of the Constitution. In that case, and in the later case of Maher-v-The Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481, the appropriateness of effecting transposition by Ministerial Regulation rather than primary legislation was considered in great detail.
49. In the Maher case, the Supreme Court held, inter alia as follows:-
(1) The fact that a regulation is directly applicable does not prevent the provisions of that regulation from empowering a Community institution or a Member State to take implementing measures. In the latter case the detailed rules for the exercise of that power are governed by the public law of the Member State in question; however, by virtue of the direct applicability of the measure empowering the Member State to take the national measures in question, the national Courts can ascertain whether such national measures are in accordance with the content of the Community Regulation (Eridania-v-Minister of Agriculture and Forestry (Case 230/78) (1979) ECR 2749 applied).
(2) The fact that it may be convenient or desirable to transpose a Community measure into Irish law in the form of a Regulation rather than an Act of the Oireachtas is not of itself a sufficient reason for concluding that the regulation is necessitated by the obligations of membership of the European Union or of the Communities within the meaning of Article 29.4.7 of the Constitution. Where no policy choices are left to the Member State, expedition is one of the factors which may legitimately be taken into account in deciding to opt for the making of a regulation rather than the enactment of primary legislation, but it does not justify such a decision in the case of every directive or EU Regulation.
50. In the instant case, both sides agree that the use of a statutory instrument, rather than an Act of the Oireachtas, as the vehicle for making the detailed rules was not necessitated by the obligations of membership of the European Union, so that the transposing measure in the instant case is not immune from Constitutional scrutiny. In considering whether the regulations in the Maher case infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1. of the Constitution the Supreme Court held that the “principles and policies test” provides the basis for deciding whether a given legislative act abdicates the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution. The Court further held that the principles and policies test is capable of being applied by the Irish Courts without any conflict with Community law, being a test designed to protect the democratic basis of government, a principle that finds expression in Community law. Thus the Court also held:-
(3) Where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, the implementation of such a provision by means of Ministerial Regulation is not invalid having regard to Article 15.2.1 of the Constitution. The force of Article 15.2.1 is preserved for cases where such an obligation does not exist. The principles and policies test applies mutatis mutandis where the delegated legislation represents an exercise of power or discretion arising from Community secondary legislation. It applies with particular clarity to the case of directives in respect of which Article 249 EC leaves the choice of form and methods to the Member States. Although Community Regulations are directly applicable without the need for national implementing measures, the principles and policies test is applicable where such regulations leave open a range of choices. Each case must be decided on its own merits. The mere existence of a Community Regulation implies a Community policy. Article 253 EC obliges the Community legislature to state in such Acts “the reasons on which they are based”. Member States implementing measures come inherently within the scope of such a stated policy. However, the choices left to the Member States may be of such significance in their nature or scope or so unconnected with Community policies and aims that primary legislation would be required to transpose the Community measure into Irish law and, if regulations were to be used, such would be invalid having regard to Article 15.2.1 of the Constitution.
51. On behalf of the applicant, Mr McGuinness points out that in the instant case the Minister is not exercising any power in pursuance of Section 3 of the Act of 1972. Instead, the Minister is purportedly acting in pursuance of a power granted to him by the Oireachtas under Section 223A of the Act of 1959 as amended. This, it is submitted, clearly brings it within the scope of Article 15.2.1 and the principles and policies test laid down by the Supreme Court. On any application of this test, he submits, it could not be said that the Oireachtas was intending to delegate to the Minister:-
(a) A power to implement any measure of Community law from whatever treaty source arising.
(b) A power to create an alternative but silent means of implementation thereby implicitly authorising a by-pass of the existing methods by which the Minister might have properly sought to implement any such European based obligation.
(c) A power to extend the criminal jurisdiction of the State by the creation of an indictable offence which might be committed anywhere on the high seas in the world.
(d) A power to prescribe conservation measures not limited to the exclusive fishery limits of the State.
52. He further submits that the mere fact that Ireland may have been required to introduce the ban on drift net fishing contained in the Council Regulation does not exempt Ireland from proceeding to do so in a lawful manner in accordance with the requirements of its own constitutional and statutory procedures. Thus, it is submitted, even if the substance of the measure contained in SI 267 is considered to be necessitated, it does not and cannot satisfy the Irish requirements that for such implementation to be effective in terms of the enforcement of a criminal law, there must be a clear and demonstrable assumption of jurisdiction by the State both in terms of the extension of the area within which it purports to exercise its jurisdiction and a clear criminalisation of the conduct in respect of which it wishes to exercise that jurisdiction, neither of which it is submitted are present in the instant case. Accordingly, he submits, that as the decision in Maher intended to allow for the scrutiny of a domestic implementation measure in relation to something which is not necessitated as to the mode of implementation and extends even to measures which are held to be necessitated as to their mode of implementation, it is submitted that SI 267 on any application of the principles and policies criteria, having regard to Article 15 and Section 223A, fails that test, and that the said Regulations are accordingly ultra vires the Minister. Alternatively, if Section 223A, contrary to the foregoing submission, is interpreted so as to authorise the Minister to do what he has purported to do, it is submitted that such would be a delegation of the law making power of the State contrary to Article 15.2.1 and the section itself would be unconstitutional as being in contravention of the said provision.
53. In reply Mr Charleton on behalf of the respondents submitted that Section 223A must be examined on its own terms. In particular, he submitted, that the reference to “provisions applicable to exclusive fishery limits of the State” in the heading of that part of the Act in which Section 223A is to be found should be ignored when interpreting its provisions. It was not open to the Minister in this instance to avail of Section 3 of the European Communities Act 1972, or Section 224B of the Fisheries Amendment Act, but that did not preclude him from availing of another Section of the Fisheries (Consolidation) Act 1959 whereunder an appropriate Order might be made.
54. He submitted that the particular provision of Community law imposed obligations on the State which left no room for choice so that Article 15.2.1 of the Constitution could not be said to have been infringed by the use of a Ministerial Regulation in order to implement it. He further asserted that, for the purpose of applying the principles and policies test, the Community Regulations stood in the place of an Act of the Oireachtas. As in the Maher case, the instant case involved no more than the adoption of measures for the purpose of giving effect to a Community Regulation which is directly applicable in Irish law without the necessity for enacting domestic legislation.
55. Having considered these principles and submissions, a sequential question and answer process suggests itself as the appropriate method of testing whether or not a valid transposition has taken place.
56. The first question in such a process is to inquire, given that regulations are directly applicable, whether some additional measure was necessitated by the obligations of membership of the EU.
57. As Keane CJ states in Maher-v-Minister for Agriculture, Food and Rural Development (2001) 2 ILRM 481 at p516:-
“It follows that, in the present case, the first inquiry must be as to whether the implementation of the EC Regulations by legislation, whether in primary or secondary form, was necessitated by the obligations of Membership within the meaning of Article 29.4.7 of the Constitution.”
58. As in that case, it is clear that here legislation in some form was necessary. Article 31 of Title VIII of Council Regulation (EC) 2847/93 of 12 October 1993 and Article 6 of Council Regulation (EC) 1239/98 of 8 June 1998 required Member States to ensure appropriate measures were put in place for the purposes of respecting the Common Fisheries Policy.
59. The second question in such a process is to inquire whether the form of implementation adopted was necessitated as an obligation of membership. Given that Community law is ‘indifferent’ as to the manner of implementation (subject to Community law principles of equivalence and effectiveness), such a test may be appropriately seen as a ‘practical necessity’ test. Quite obviously if all transposition measures were required to be implemented by primary legislation, the State could simply not discharge its law-making obligations as a Member State. In any case of urgency, therefore, a ‘practical necessity’ test might demand implementation by regulation although ‘expediency’ in this sense does not appear to have found approval in the Maher decision, other than as a factor to be taken into account. Both sides in the instant case are agreed however that the form of measure adopted was not necessitated as an obligation of Membership.
60. Next one must inquire if the Community law to be transposed sets out the principles and policies to such a degree as to obviate the requirement for domestic primary legislation. This involves a consideration of the content and substance of the measure to enable the Court form a view as to the propriety of any attempt to carry it into effect in domestic law by regulation only. If significant policy choices or decisions are left to the Member State, then, as the decision of the Supreme Court in Maher makes clear, primary legislation is required.
61. The policy behind the said legislation, Title VIII of Council Regulation (EC) 2847/93 is to establish a control system for the Common Fisheries Policy. To this end Member States are to use either criminal proceedings or administrative action so as to deprive offenders of the economic benefits of their infringements of the policy. Such sanctions as fines, seizure of prohibited fishing gear, sequestration of the vessel and suspensions or withdrawal of a licence are envisaged under the Regulation.
62. Council Regulation (EC) 1239/98 of 8 June 1998 provided that no vessel may keep on board or use for fishing one or more drift nets of more than 2.5 km in length intended for the capture of most species of tuna and highly migratory fish. The policy is that if these obligations were not complied with that the competent authorities are to take appropriate measures in respect of the vessels concerned.
63. Turning to the Irish implementing measure, SI 267/1998 provides that no vessel is to keep on board or use for fishing one or more drift nets whose individual length is more than 2.5 km. There is no suggestion that any area of policy has been left to the Member State or that SI 267/98 purported to address any additional policy consideration or to adopt enforcement measures that went beyond anything contemplated in the EC Regulations. The clear intention of the Community law is to achieve the abolition of drift net fishing for tuna and to progressively remove certain derogations which existed during the 1990’s. Mr McGuinness argues that to leave to Member States the decision or choice whether to impose administrative or criminal sanctions by way of enforcement is an important discretion and policy consideration. In reality, he submits, it was the only matter addressed in the transposition process, the EC Regulation being otherwise directly applicable. However, in my view, a choice between different enforcement measures does not represent a significant reservation of policy, given that the EC Regulations cited quite clearly require that effective sanctions be put in place. In my view the choice by the Minister of Regulation was constitutionally permissible, subject only to the requirement that it be carried into effect in a constitutional fashion.
64. The fourth question therefore relates to the mode of implementation into domestic law. Did the use of SI 267/98, as to its mode of implementation, amount to a violation of Article 15.2.1 of the Constitution or otherwise amount to an ultra vires exercise of power by the Minister?
65. In my view, it did for a variety of reasons.
66. Unlike the Maher case, Section 3 of the European Communities Act, 1972 was not availed of for the transposition. Instead, the Fisheries (Consolidation) Act 1959 was the chosen vehicle. The reasons why the Minister adopted this vehicle have already been referred to. However, an immediate difficulty at once arises insofar as the application of the “principles and policies” test is concerned. In Maher, the intervening parent Act, the European Communities Act, 1972 was identified as containing no general statements of principle or policy. From the point of this consideration, the Act is a conduit pipe, nothing more, nothing less. Accordingly, in Maher the EC Regulation could be looked at as the true ‘parent Act’ to ascertain if it contained the requisite statement of principles and policies sufficient to obviate the need for primary domestic legislation.
67. In this case, however, the Minister chose to ‘adopt’ as a parent Act the Fisheries (Consolidation) Act, 1959, and a section thereof, which is clearly not designed for transposition purposes. The Fisheries Acts 1959 – 1994 contain many principles and policies but not the principles and policies of these EC Regulations. That is, they do not purport to regulate for a ban on the use of drift nets of a certain length, nor do they aim to further the Common Fisheries Policy. The law regulating fish net sizes is not laid down in the Fisheries Acts, 1959 – 1994, with only the details being filled in or completed by the Respondent in SI 267/1998. The rules contained in SI 267/1998 do not give effect to principles and policies of the Fisheries Acts themselves, but constitute a completely new addition thereto.
68. A fundamental principle of the rule of law is the principle of legality whereby every executive or administrative act which affects legal rights, interests or legitimate expectations must be legally justified. This may be achieved by demonstrating that the measure in question meets the principles and policies test, but the Respondent in this case has not in my view shown that he had such legal authority by reference to the wording of the Fisheries Acts to make SI 267/98 and accordingly must be held to have acted ultra vires as to the mode of implementation of the EC Regulation.
69. I also accept Mr McGuinness’s submission that it cannot be said that the Oireachtas were intending to delegate to the Respondent a power to implement any measure of EU law from whatever treaty source arising or to delegate a power creating an alternative but silent EU power of implementation. The Oireachtas cannot be said to have thereby implicitly authorised a by-pass of existing methods by which the Respondents might have properly sought to implement any such European based obligation.
70. It also seems to me that the clear implication to be drawn from Section 3 (3) of the European Communities Act 1972 (which provides that no regulations can be made under the Act to create an indictable offence) is that primary legislation is required where it is intended to create an indictable offence. If regulations under the “conduit pipe” for transposing European legislation cannot create an indictable offence, it seems to me virtually impossible to argue that delegated legislation made under a national statute can do so.
71. In any event the Irish regulation does not expressly prescribe that an infringement of Article 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to an earlier Order, SI 201/1994. It does not define the area of application of the requirement to comply with Article 11, 11 (A) and 11(B) of the Council Regulation and must therefore be presumed to have been intended to prohibit only that which it was within the jurisdiction of the State to prohibit i.e. one within territorial seas comprised by Section 2 of the 1959 Act or within the exclusive fishery limits of the State as fixed by Section 6 of the Maritime Jurisdiction Act 1959. It does not purport to give effect to Article 11 (c) of the Regulations so as to amend the criminal jurisdiction of the State as described above or to extend it on a world wide basis to the high seas. I accept Mr McGuinness’s submission that it is a fundamental principle of criminal law that there must be certainty as to the existence of an offence, its definition and the State’s jurisdiction in relation to an alleged commission of the offence. The Court cannot presume from an ambiguous provision that criminal liability to trial, conviction and punishment has been imposed by means of interpretation only. (See King -v- A.G 1981 IR 223 and A.G. -v- Cunningham (1932) IR 28).
72. The mode of implementation adopted, it seems to me, also offends Article 15.2.1 in another undesirable manner, a manner in which it perhaps also offends Article 6 of the Constitution, where its effect is to dis-apply S.4 of the European Communities Act, 1972.
73. The European Communities Act, 1972 is an example of one of the few instances where by virtue of S.4 thereof, there is a functioning scrutiny of delegated legislation by the Dáil and Seanad. As O’Higgins CJ states in the Cityview Press case at pp 398 – 399:-
“…sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulating or order-making process provides that any Regulation or Order made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. It is, therefore a safeguard …”
74. The Court continued: “Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power neither contemplated nor permitted by the Constitution.”
75. Section 4 of the European Communities Act, 1972 devolves an important supervisory and monitoring function upon the Dail and the Seanad in respect of regulations put in place under that Act whereby they may be annulled by resolution of the two Houses. In by-passing that Act, as has occurred in this case, the Minister has stripped away that element of parliamentary supervision of the measure adopted and has undoubtedly contributed to what has been sometimes described as a “democratic deficit” in the important area of transposition of Community law into domestic law. In effect the Regulation “repeals” S. 4. insofar as the implementing measure itself is concerned. As only regulations under the 1972 Act have statutory effect, a de facto repeal of a statutory provision by a regulation made under another Act must be seen as impermissible for that reason also.
76. For these reasons I conclude and hold that the purported transposition was ultra vires in that SI 267/98 infringed the exclusive law making power conferred upon the Oireachtas by Article 15.2.1 of the Constitution.
Remaining Issues
77. While Mr Charleton contended that this was a ‘one issue’ case (i.e. about transposition), I should nonetheless make findings on the other points canvassed on their separate merits in case the matter may be taken further. A challenge in this case was made to the powers of Sea Fishery Protection Officers. Given that in the instant case, the Sea Fishery Protection Officer detained the vessel and all persons on board suspecting there had been a contravention of the provisions of Chapter II of Part XIII of the Sea Fisheries (Consolidation) Act 1959, his power to do so necessarily depends upon the validity of SI 267/1998, which I have found to be ultra vires the power of the Minister.
78. That said, Sea Fishery Protection Officers are granted special powers under Section 233 of the Fisheries (Consolidation) Act 1959, both within the exclusive fishery limits of the State and, subject to the rules of international law, outside those limits in a variety of respects.
79. There is no question but that an Irish registered vessel is subject to the criminal jurisdiction of the Irish Courts and numerous examples have been cited to demonstrate how the legislature can pass laws having extra-territorial effect, including the Merchant Shipping Act, 1894, the Air Navigation and Transport Act, 1973 and, indeed, the Fisheries (Consolidation) Act 1959. I am therefore making no finding which would impugn the powers of Sea Fishery Protection Officers other than in respect of the particular offence in respect of which the Applicant’s vessel was detained in the instant case.
80. Insofar as the various Orders of the district judge are concerned, I also accept Mr Charleton’s submissions that these Orders are now spent.
81. An issue also arose as to whether bottom set or anchor fixed gill nets on board the S-V “Antonia” did or did not constitute drift nets for the purposes of SI 267/1998. Mr McGuinness submits that the Sea Fisheries (Gill Net, Tuna and certain other Species of Fishing) Order 2001 (S. I. 226/2001) introduced a new definition, a more comprehensive definition, in recognition of the “deficiencies” in the earlier regulation, when it substituted for drift nets a definition of gill nets as follows:-
“Any type of gill nets, drift nets, bottom set gill nets, trammel nets and entangling nets”
82. This may well be a most persuasive basis for suggesting there may have been deficiencies in the definition contained in SI 267/1998, but the resolution of that issue is clearly within the jurisdiction of the trial judge in any given case and Mr. Charleton submits that seeking relief by judicial review is inappropriate in respect of what is essentially an issue of fact.
83. Mr Charleton referred to Blanchfield -v- Harnett (2001) 1 ILRM 193 where, albeit in a somewhat different situation (when an issue arose as to the admissibility of evidence), O’Neill J stated (at p205):-
“Where it is alleged that evidence has been obtained illegally the question of whether or not such is the case, i.e whether an illegality has occurred is one solely for the trial judge and following upon that whether or not the evidence should be admitted is again one solely for the discretion of the trial judge, a discretion to be exercised in accordance with law. In my view the principle of regularity of judicial proceedings requires that all questions relevant to the determination of such issues rests with the trial judge. Otherwise trials would be suspended for lengthy periods while such issues were litigated in other Courts, a practice wholly condemned by the Supreme Court in the case of People (Attorney General) -v- McGlynn (1967) IR 232 where at p239 the following was said by Ó Dálaigh CJ:-
“The nature of a criminal trial by jury is that once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be reassessed in the middle of trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
84. While ‘trial context’ and ‘admissibility issues’ are not in point in the present case, the learned judge however continued:-
“In reference to this quote, O’Flaherty J in DPP -v- Special Criminal Court (1999) 1 IR 60 said the following:-
‘While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practical, be followed in respect of all criminal trials subject to the jurisdiction of Courts to grant cases stated on occasion.’
Further on in this judgment O’Flaherty J added the following:
‘I would endorse everything that Carney J said about the undesirability of people repairing to the High Court for a judicial review in relation to criminal trials at any stage (and certainly not during their currency)’
In my view therefore, the exclusive jurisdiction of trial judges to determine issues as to the admissibility of evidence is right in principle being consistent with the regularity of judicial proceedings, a fact which is abundantly supported by authority.”
85. On the material brought before this Court, certain factual matters have not yet been determined. For example, can a gill net which is capable of being used as a bottom set or anchor-fixed net, nonetheless be utilised and be therefore regarded as a drift net and thus infringe the law? It seems to me that a ruling on such an issue can only be made once the factual material has been clearly established, and this quintessentially falls within the remit of the trial Court. It is a matter arising out of the charge or indictment, so I hold in favour of Mr. Charleton on this point.
Cooke v. Walsh
[1984] ILRM 208
S.C.
8
Hamilton J.
11th January 1983
In an amended defence delivered on behalf of the defendant, the defendant pleaded that:
(a) The plaintiff is a person with full eligibility for all the services to which an eligible person is entitled free of charges of payment under the provision of the Health Acts, particularly the Health Act, 1970.
(b) The plaintiff has been charged with such services on the grounds that he is alleged to be rendered ineligible for free services by virtue of the provisions of the Health Services Regulations, 1971, and more particularly art. 6, sub-art. 3, thereof.
(c) In excluding or purporting to exclude from the benefit of such free services victims of road traffic accidents (including the plaintiff if his allegations are correct) the Minister acted ultra vires his powers and the said art. 6, sub-art. 3, of the Health Services Regulations, 1971, is unconstitutional and contrary to the provisions of the Constitution of Ireland, 1937, particularly art. 40, s. 1 thereof, is discriminatory, is contrary to natural justice and is contrary to natural rights and as a result thereof is null, void and of no effect.
The Attorney General was served with notice of this plea made on behalf of the defendant.
With the consent of the parties I directed that the following issues be tried:
“1. Is s. 72, sub-ss. 1-2, of the Health Act, 1970, invalid having regard to the provisions of the Constitution?
2. If the said s. 72, sub-ss. 1-2, is not invalid having regard to the provisions of the Constitution, is art. 6, sub-art. 3, invalid having regard to the provisions of the Constitution?
3. If neither the said s. 72, sub-ss. 1-2, nor the said art. 6, sub-art. 3, is invalid having regard to the provisions of the Constitution, was the Minister for Health acting ultra vires in making the said art. 6, sub-article 3?
4. Has the defendant the necessary locus standi to raise the constitutional issue raised in the first and second issues?”
And I further directed that the defendant, Patrick Walsh, be the plaintiff in the trial of the issue and the Attorney General and the infant plaintiff be the defendants in the trial of the issue.
It is of assistance at this stage to set forth the defendant’s replies to the notice for particulars delivered on behalf of the Attorney General dated the 20th day of September, 1982, because they set forth concisely the grounds upon which he alleges that the said section of the Health Act, 1970, and art. 6, sub-art. 3, of the Health Services Regulations, 1971, were invalid having regard to the provisions of the Constitution.
In his said reply, the defendant stated that:
Section 72, sub-s. 2, was invalid having regard to the provisions of the Constitution and in particular:
(a) Article 15, s. 2, thereof in that it purports to delegate a law making power to the Minister for Health;
(b) Article 40, s. 1, thereof, in that
(i) Whilst the said Health Act, 1970, provides that health services are to be made free of charge to persons having eligibility, the said s. 72, sub-s. 2, enables the Minister to exclude, from the beneficial operation of the said Act, certain classes of persons having eligibility for the said services.
(ii) The Minister in the exercise of the powers purported to be given to him by the said Act and in particular by s. 72, sub-s. 2, thereof can and has discriminated unfairly against some citizens and in particular the plaintiff herein.
(iii) The said s. 72, sub-s. 2, fails to hold the citizens equal before the law in that it fails to have regard to differences of capacity, physical and moral, and of social function in the citizens and purports to enable the Minister to exclude citizens from the aforesaid benefits of the Act without having regard to the said matters or any of them.
(iv) The said s. 72, sub-s. 2, fails to hold the citizens equal before the law.
(v) The said s. 72, sub-s. 2, fails to have due regard to the differences of capacity of the citizens and in particular the differences of physical capacity.
(vi) The Minister in the exercise of powers purported to be given to him by the said s. 72, sub-s. 2, can discriminate unfairly against some citizens in that the said Act lays down no standard in the light of which such service or services are to be made available to such class or classes of citizens.
(vii) The Minister in regulating which service or services is or are to be made available to which class or classes of persons having eligibility therefor may and has, while exercising such powers purported to be given to him by the Act, unjustly favoured some citizens and victimised others.
(c) Article 40, s. 3, sub-s. 1, in that
(i) It purports to allow the said Minister to withhold or to remove by regulation a personal right from citizens or classes of citizens.
(ii) It purports to allow the said Minister to withhold or exclude by regulation a personal right without regard to the said Minister’s duty to defend and vindicate the personal rights of citizens.
(d) Article 40, s. 3, sub-s. 2, in that
(i) It constitutes a failure to vindicate the life, person and property rights of every citizen.
(ii) It constitutes a failure to protect and vindicate the constitutional rights of such citizen as may be ‘eligible persons’ within the meaning of the said section.
The said reply further stated that:
Article 6, sub-art. 3, of the Health Services Regulations, 1970, is invalid having regard to the provisions of the Constitution and in particular:
(a) Article 15, s. 2, thereof in that
(i) the said Minister has usurped a law making power solely vested in the Oireachtas.
(b) Article 40, sub-s. 1, in that
(i) it unfairly discriminats between citizens injured in road traffic accidents and all other citizens;
(ii) it purports to exclude citizens requiring treatment for injuries received in road traffic accidents without regard to differences in such citizens of capacity, physical and moral.
(c) Article 40, s. 3, sub-s. 1, in that
(i) it purports to remove a personal right from certain citizens or alternatively a certain class of citizen;
(ii) it constitutes a failure to defend and vindicate a personal right of citizens or alternatively certain classes of citizens.
(d) Article 40, s. 3, sub-s. 2, in that
(i) it constitutes a failure to vindicate the life, person and property rights of every citizen and in particular the life, person and property rights of those persons requiring treatment for injuries received in road traffic accidents;
(ii) It constitutes an unjust attack upon and failure to defend and vindicate the life, person and property rights of all citizens.
The said reply further stated:
1. The said Minister acted ultra vires his power in that
(i) He had no power under the said Health Services Acts to exclude any persons, being entitled persons, from the benefit of the said Acts.
(ii) He was not entitled to delegate the power in excluding from the benefit of the said Acts (if such power he had which the defendant denies) to the relevant chief executive of the health board.
(iii) He discriminated in an unfair, invidious and arbitrary fashion against citizens, being entitled persons, contrary to Art. 40, s. 1, of the Constitution.
(iv) He failed to respect or defend the personal rights of citizens, being entitled persons, contrary to Art. 40, s. 3, sub-s. 1, of the Constitution.
(v) He unjustly attacked and failed to vindicate the lives, persons and property rights of citizens, being entitled persons, contrary to Art. 40, s. 3, sub-s. 2, of the Constitution.
The fourth issue dealt with the question whether the defendant, Patrick Walsh had any locus standi to raise the aforesaid issues and to claim declarations in respect thereof.
As the defendant in this case is materially affected by the provisions which are under attack, in that he is liable to compensate the infant plaintiff for the loss sustained by him, I am satisfied that he has the right to maintain these proceedings. That right is not affected in any way by the fact that he is indemnified against such loss.
Section 51 of the Health Act, 1970, provides that: “In this part ‘in-patient services’ means institutional services provided for persons while maintained in a hospital, convalescent home or home for persons suffering from physical or mental disability or in accommodation ancillary thereto.”
Section 52, sub-s. 1, provides that: “A health board shall make available in-patient services for persons with full eligibility and persons with limited eligibility.”
Section 53, sub-s. 1, provides that: “Save as provided for under sub-s. 2, charges shall not be made for in-patient services made available under section 52.”
Section 53, sub-s. 2, provides that: “The Minister may, with the consent of the Minister for Finance, make regulations:
(a) providing for the imposition of charges for in-patient services in specified circumstances on persons who are not persons with full eligibility or on specified classes of such persons, and
(b) specifying the amounts of the charges or the limits to the amounts of the charges to be so made.”
It is clear from a consideration of the provisions of s. 53, sub-s. 2, that the Minister is not thereby empowered to make regulations providing for the imposition of charges for in-patient services on persons who are persons with full eligibility.
The power thereby conferred is to make regulations for the imposition of charges on persons who are not persons with full eligibility or on specified classes of such persons viz. persons who are not persons with full eligibility.
Section 56, sub-s. 2, provides that: “A health board shall make available out-patient services without charge for persons with full eligibility and for persons with limited eligibility.”
Such ‘out-patient services’ are defined in s. 56, sub-s. 1, of the Act, which provides that: “For the purposes of this section ‘out-patient services’ means institutional services other than in-patient services provided at, or by persons attached to, a hospital or home and institutional services provided at a laboratory, clinic, health centre or similar premises.”
By virtue of the terms of s. 52, sub-s. 1, and s. 56, sub-s. 2, of the Health Act, 1970, a health board is under a statutory obligation to provide ‘in-patient’ services and ‘out-patient’ services for persons with full eligibility and persons with limited eligibility.
With regard to ‘in-patient’ services there is contained in s. 53, sub-s. 1, a statutory prohibition against making charges for such services save as provided in s. 53, sub-s. 2, and in respect of ‘out-patient’ services the obligation implied by s. 56, sub-s. 2, is to make such services available without charge.
Section 72 of the Health Act, 1970, however provided that:
(1) “The Minister may make regulations applicable to all health boards or to one or more than one health board regarding the manner in which and the extent to which the board or boards shall make available services under this Act and generally in relation to the administration of those services.
(2) Regulations under this section may provide for any service under this Act being made available only to a particular class of the persons who have eligibility for that service.”
Section 45 of the Health Act, 1970, defines the categories of persons having full eligibility and provides that:
(1) “A person in either of the following categories shall have full eligibility for the services under this part:
(a) adult persons unable without undue hardship to arrange general practitioner medical and surgical services for themselves and their dependants;
(b) dependants of the persons referred in paragraph (a).”
Section 45 further provides that:
(3) “The Minister, may, with the consent of the Minister for Finance, by regulations specify a class or classes of persons who shall be deemed to be within the categories mentioned in sub-section (1) (of Section 45).
(4) A draft of regulations which it is proposed to make under this Section shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each House.”
Section 46 of the Health Act, 1970, defines the categories of persons having limited eligibility for the services provided by the Act and provides inter alia that:
(1) “A person in any of the following categories who is without full eligibility shall have limited eligibility for the services under this part:
(a) persons insured under the Social Welfare Act, 1952;
(b) adult persons whose yearly means are less than £12,000;
(c) adult persons whose yearly means are, in the opinion of the Chief Executive Officer of the appropriate health board, derived wholly or mainly from farming, if the rateable valuation of the farm or farms concerned (including the buildings thereon) is not more than £60;
(d) dependants of persons referred to in paragraphs (a) (b) and (c).”
(3) “The Minister may, with the consent of the Minister for Finance, by regulations substitute for subsections (1) and (2) other provisions defining in such manner as he thinks fit categories of persons with limited eligibility.”
(4) “A draft of regulations which it is proposed to make under subsection (3) shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each House.”
I have set forth the relevant portions of ss. 45 and 46 of the Act, dealing with the categories of persons having full eligibility and limited eligibility because it is clear from a consideration of such sections that while, in the case of full eligibility, the Minister was empowered, with the consent of the Minister for Finance, to make regulations specifying a class or classes of persons to be deemed as being within the categories mentioned in sub-s. 1, of s. 45, it gave him no power to limit that category, and in the case of limited eligibility, the Minister was empowered, with the consent of the Minister for Finance, by regulations to substitute for s. 46, sub-ss. 1, and 2, other provisions defining, in such manner as he thought fit, categories of persons with limited eligibility. In either case however a resolution approving of a draft of any such regulations had to be passed by each House of the Oireachtas and no such regulation could be made until such resolutions had been passed.
No such resolution appears to have been required in respect of regulations made pursuant to the provisions of s. 72, sub-ss. 1 and 2, of the Act.
Article 6, sub-article 2, of the Health Services Regulations made by the Minister for Health with the consent of the Minister for Finance provided that:
“Subject to sub-article (3) the following persons shall be the persons for whom services shall be made available under Sections 52(1), 56(2), 62(1), or 63(1) of the Act:
(a) persons with full eligibility;
(b) any person insured under the Act of 1952, in respect of whom in the relevant period an employment contribution is paid, payable or credited in accordance with the provisions of the Act of 1952 or the regulations made thereunder;
(c) any person who is, on the relevant date, a voluntary contributor in respect of whom not less than twenty-four voluntary contributions have been paid for the contribution year before the relevant date or not less than seventy two voluntary contributions have been paid for the three contribution years before the relevant date;
(d) any persons mentioned in Section 46 1 (b) or (c) of the Act;
(e) dependants of the persons mentioned in paragraphs (b) to (d).”
The Health Services (Limited Eligibility) Regulations, 1979, substituted for the provisions of s. 46, sub-ss. 1 and 2, of the Health Act, 1970, the following subsection: “A person who is without full eligibility shall have limited eligibility for services under this part.”
Article 6, sub-article 3, of the Health Services Regulations, 1971, provides that: “The class of persons entitled to avail themselves of services under Section 52 or Section 56(2) of the Act shall not include persons who require treatment for injuries in a road traffic accident except where it is established to the satisfaction of the Chief Executive Officer of the health board that the applicant for such services has not received or is not entitled to receive damages, or compensation in the nature of damages, from another person in respect of the injuries.”
It is admitted by all parties to these proceedings that were it not for the provisions of this sub-article that the infant plaintiff would have been entitled free of charge to the services provided pursuant to the provisions of ss. 52 and 56, sub-s. 2, of the Health Act, 1970, he being a person of full eligibility as defined in s. 45, sub-s. 1, of the Health Act, 1970.
This regulation was made by the Minister in purported exercise of the powers conferred on him by s. 72 and in particular sub-s. 2 thereof and it is submitted on behalf of the defendant, Patrick Walsh, that:
(i) Section 72 is invalid having regard to the provisions of the Constitution,
(ii) Article 6 sub-article 3 of the Health Services Regulations, 1971, is invalid having regard to the provisions of the Constitution and
(iii) The Minister for Health acted ultra vires in making the said article.
The effect of this particular regulation is to deprive a person, otherwise eligible, who requires treatment for injuries received in a road traffic accident, of services under s. 52 and s. 56, sub-s. 2, of the Health Act, 1970, except where it is established to the satisfaction of the chief executive officer of the health board that he has not received or is not entitled to receive damages, or compensation in the nature of damages, from another person in respect of the injuries.
The power conferred on the Minister by s. 72, sub-s. 2, of the Health Act, 1970, is to make regulations which may provide for any service under the Act being made available only to a particular class of the persons who have eligibility for that service.
Since the making of the Health Services (Limited Eligibility) Regulation, 1979, all persons have either full eligibility or limited eligibility for the services provided pursuant to the provisions of ss. 52 and 56, sub-s. 2, of the Health Act, 1970, with the exception of persons requiring treatment for injuries in a road traffic accident and who have not established to the satisfaction of the chief executive officer of the relevant health board that they have not received or are not entitled to receive damages or compensation in the nature of damages from another person in respect of the injuries.
This latter class was deprived of entitlement to such services by the provisions of art 6, sub-art. 3, of the Health Services Regulations, 1971, and the first question I have to consider is whether the Minister for Health actedultra vires in making the said sub-article. This question must however be considered in conjunction with the question as to whether or not the provisions of the sub-article are invalid having regard to the provisions of the Constitution because no Minister has, or could be given, power to make regulations which are invalid having regard to such provisions.
The regulations, which contain the sub-article impugned, were made by the Minister for Health in pursuance of the powers given to him by s. 72 of the Act and it is submitted on behalf of the defendant that this section is unconstitutional on the grounds that (i) its terms are contrary to the provisions of Art. 15, s. 2, of Bunreacht na h-Éireann and (ii) it enables the Minister for Health to make regulations which would contravene the terms of Art. 40 of Bunreacht na h-Éireann .
The power given by the section to the Minister for Health is to make regulations applicable to all, or one, or more than one of the health boards regarding the manner in which and the extent to which the board or boards shall make available services under the Act and generally in relation to the administration of these services and, in particular, to provide that any services under the Act be made available only to a particular class of the persons who have eligibility for that service.
Article 15, s. 2, sub-s. 1, of the Constitution provides that: “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.”
In the course of delivering the judgment of the Supreme Court in Cityview Press v. An Chomhairle Oiliúna 1 the Chief Justice stated at p. 398:
“The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern state. Sometimes, as in this instance, Legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the national parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body there is no unauthorised delegation of legislative power.”
It is submitted on behalf of the defendant that the powers given to the Minister for Health by s. 72, sub-s. 1, of the Act go beyond what may be delegated properly by the national parliament and are more than the powers necessary to give effect to the principles and the policies which are contained in the statute itself.
As the Health Act, 1970, was enacted after the coming into force of the Constitution, the presumption of constitutionality operates in its favour.
As was stated in McDonald v. Bord na gCon (No. 2) 2 at p. 239:
“One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.”
It must therefore be presumed that in relation to the provisions of s. 72, sub-s. 1, the Oireachtas intended only a constitutional construction thereof and that the powers conferred on the Minister were merely for the purpose of giving effect to principles and policies which are contained in the Act itself.
It is clear from the provisions of the Act already quoted that one of the purposes of the Act was to make available in-patient services and out-patient services as therein defined to persons with full eligibility and to persons with limited eligibility and to make it mandatory for health boards to make such services available.
The Act itself does not contain any provision with regard to the manner in which such services should be provided or any definition or description of ‘institutional services’ which words are used in the definitions of ‘in-patient services’ and ‘out-patient services.’ These change from time to time and are matters which could reasonably be left by the Oireachtas to the Minister without any abrogation of its legislative authority.
It is a reasonable interpretation of s. 72, sub-s. 1, that the power given to the Minister to make regulations regarding the manner in which and the extent to which the board or boards shall make available services under the Act related to matters such as this and that these regulations are merely for the purpose of giving effect to the policies contained in the Act.
That being so, the provisions of s. 72, sub-s. 1, are not invalid having regard to the provisions of the Constitution.
Section 72, sub-s. 2, of the Act provides that regulations may be made for any service under this Act being made available to a particular class of the persons who have eligibility for that service. This section must be read in conjunction with s. 52, sub-s. 1, and s. 56, sub-s. 2, of the Act.
The combined effect of these three subsections is that a health board is obliged to make available to persons with full eligibility and to persons with limited eligibility in-patient and out-patient services but the legislature granted to the Minister for Health the power to exclude from the benefit of such services a particular class of the persons having eligibility for these services.
It is submitted on behalf of the defendant that the granting of such power to the Minister was an abrogation by the Legislature of its legislative power and was contrary to the provisions of Art. 15, s. 2, of the Constitution and was further contrary to the provisions of Art. 40, s. 1, of the Constitution in that it enabled him to differentiate between citizens without due regard to differences of capacity, physical and moral, and of social function.
It is clear however that the Act contemplated that the services under s. 52, sub-s. 1, and s. 56, sub-s. 1, might be made available only to a particular class of the persons who had eligibility for these services and having regard to the decision of the Supreme Court in East Donegal Co-operative v. The Attorney General 3 , I am satisfied that it is within the competence of the Oireachtas to vest the power of deciding what class of the persons who had eligibility for the services were entitled to avail of same. The power given to the Minister however casts upon him the duty of acting fairly and judicially in accordance with the principles of constitutional justice and it does not give him an absolute or an unqualified or an arbitrary power.
As the power given to the Minister for Health is the power to differentiate between classes of the persons eligible for the services and not as between individuals, it appears to me that the provisions of Article 40, s. 1, of the Constitution have no application. If this were not so, different considerations would undoubtedly apply because as stated by Mr. Justice Walsh in East Donegal Co-operative v. The Attorney General 3 at p. 350:
“The constitutional right of the Oireachtas in its legislation to take account of differences of social function and differences of capacity, physical and moral, does not extend to delegating that power to members of the Executive, to the exclusion of the Oireachtas, in order to decide as between individuals (all of whom are, by the terms of an Act, bound by it) which of them shall be exempted from the application of the Act.”
I am satisfied that the provisions of s. 72, sub-s. 2, of the Act are not invalid having regard to the provisions of the Constitution. The obligation on the Minister for Health in making a regulation providing that any service under the Act be made available only to a particular class of the persons who have eligibility for that service is to act fairly and judicially in accordance with the principles of constitutional justice and the principles and policy of the Act. The effect of the regulation made by him is to exclude from the benefit of the Act only persons who require treatment for injuries received in a road traffic accident and who have received damages or are entitled to receive damages from another person in respect of the injuries. These latter qualifications must under the regulation be established to the satisfaction of the chief executive officer of the health board. His role however is purely an administrative function in the execution of which he is bound to act judicially and which is subject to review by the court should he fail to so act. The challenge on this particular ground must fail.
I am satisfied that in making art. 6, sub-art. 3, the Minister for Health acted in accordance with the principles of constitutional justice. The class of persons deprived of the right to avail of the services provided by s. 51, sub-s. 1, and s. 56, sub-s. 2, of the Act either had or were entitled to receive as part of their damages from another person the cost of such services and that other person was obliged by law to be insured in respect of such damages.
Consequently I will make an order on the issues that:
1. The provisions of s. 72, sub-ss. 1-2, of the Health Act, 1970, are not invalid having regard to the provisions of the Constitution.
2. The provisions of art. 6, sub-art. 3, of the Health Services Regulations, 1971, are not invalid having regard to the provisions of the Constitution.
3. The Minister for Health acted intra vires in making the said Regulation.
4. The defendant had the necessary locus standi to raise the foregoing issues.
The defendant (who was the plaintiff in the constitutional issue) appealed to the Supreme Court (O’Higgins C.J., Henchy, Griffin, Hederman and McCarthy JJ.) against the judgment and order of the High Court. The appeal was heard on the 22nd November, 1983.
Cooke v. Walsh
Hamilton J.; O’Higgins C.J. 725
S.C.
O’Higgins C.J.
16th December 1983
On the 13th September, 1980, the infant plaintiff suffered very severe injuries as a result of a traffic accident. Issues of liability which arose therefrom were determined in the High Court by Mr. Justice Hamilton sitting without a jury. Against his determination of these issues no appeal has been brought. The defendant has, however, appealed to this Court against the amount of damages awarded by Mr. Justice Hamilton. Part of this appeal relates to the learned trial Judge’s decision on special pleas raised in the defence as to the validity of art. 6, sub-art. 3, of the Health Services Regulations, 1971, and of s. 72 of the Health Act, 1970, under which this statutory instrument purports to have been made by the Minister for Health. On this issue the Court has heard submissions from both parties to the action and from the Attorney General who has been joined as a notice party. The Court has concluded that before giving final judgment on the issue of damages it is desirable to dispose of the issue of the validity of the statutory instrument and/or of the section. Accordingly, it sits today to give judgment on these issues.
Before referring to the particular issue which requires decision, it is necessary to refer very generally to the manner in which health services in this country are provided. These services are at present administered under the general authority of the Health Act, 1970. This Act supersedes many provisions of earlier Health Acts. It provides for the administration of specified services through health boards which operate on a regional basis. The services which are to be provided are dealt with in Part IV, Chapter 2 of the Act and are classified as “hospital in-patient and out-patient services”,”general medical services”, “services for mothers and children”, “other services.” In Part IV, chapter 1, eligibility for these services is dealt with under two headings. These two headings relate to “full eligibility” and”limited eligibility.” Section 45, sub-s. 1, deals with full eligibility and provides as follows:
“(1). A person in either of the following categories shall have full eligibility for the services under this Part
(a) adult persons unable, without undue hardship, to arrange general practitioner medical and surgical services for themselves and their dependants,
(b) dependants of the persons referred to in paragraph (a).”
Subsequent subsections provide for the manner in which the means of a person to qualify for services should be considered, for the deeming of certain classes to be qualified and for dealing with particular hardship in individual cases. While the section refers to “categories” it is clear that the only dividing line between those covered by the section is that between adult persons and their dependants, and, that the common bond amongst such adults is their inability or deemed inability to arrange the necessary services for themselves and their dependants. The phrase “full eligibility” is not defined. It is, however, clear from the scheme of the Act that it indicates an entitlement to all the services which it is the obligation of the appropriate health board to provide and, further, that these services must be provided for such persons free of all charge. (See s. 52 (in-patient services), s. 56 (out-patient services), s. 58 (general medical services), s. 59 (drugs, medicines, appliances), s. 60 (home for infants), s. 67 (dental, opthalmic and oral services)). Section 46 deals with the second heading which is “limited eligibility.” It provides as follows:
“A person in any of the following categories who is without full eligibility shall have limited eligibility for the services under this part
(a) persons insured under the Social Welfare Act, 1952,
(b) adult persons whose yearly means are less than £12,000,
(c) adult persons whose yearly means are, in the opinion of the Chief Executive of their appropriate Health Board, derived wholly or mainly from farming, if the rateable valuation of the farm or farms concerned (including the buildings thereon) is not more than £60,
(d) dependants of persons referred to at (a), (b) and (c).”
By subsequent subsections it is provided that there may be a substitution by the Minister of other provisions defining categories of persons with limited eligibility. These alterations were in fact made but it is unnecessary to consider what was involved. What is relevant is that this section deals with those with “limited eligibility.” Again, this phrase is not defined but, having regard to the scheme of the Act, it seems to indicate groups of persons, classified under different headings, who are entitled to avail of health services under the Act but who may be charged for the services which are provided for them. The charges which may be imposed vary according to circumstances, and, according to the specified class amongst those with such eligibility to which the person concerned belongs. (See ss. 53, and 67). In addition, persons with such limited eligibility are not entitled to all the health services which are available. (See section 58).
It is conceded that on the date of this unfortunate accident the infant plaintiff came within s. 45 of the Act and was accordingly entitled to full eligibility. Such eligibility in accordance with ss. 53 and 56 entitled the plaintiff to all hospital in-patient and out-patient services entirely without charge. Having been injured in the accident, he was maintained and treated over a prolonged period in St. Laurence’s Hospital, Dublin, and later in the National Medical Rehabilitation Centre. Had his injuries been suffered otherwise than in a road accident no question of imposing a charge in respect of his maintenance and treatment in either of these hospitals could have arisen. However, in the events which transpired, a charge of £44,743.92 was made in respect of his period in St. Laurence’s Hospital, and a charge of £24,255 in respect of his period at the National Rehabilitation Centre. The charges having been so made were included as part of the plaintiff’s claim for damages against the defendant as was also a prospective charge of £30,718 in respect of a further hospitalisation for twelve months. It is because of this fact that the issues of validity, with which this judgment is concerned, have arisen.
These charges in respect of the plaintiff’s hospitalisation were imposed by both hospital authorities because of the operation of Statutory Instrument No. 105 of 1971. This statutory instrument is entitled “Health Services Regulations, 1971.” It is made by the Minister for Health in purported exercise of the powers conferred on him by different sections in the Health Acts code. These sections are s. 5 of the Health Act, 1947, and ss. 53, 54 and 72 of the Health Act, 1970. An examination of these empowering sections and of the different provisions of the aforesaid statutory instrument indicates that the particular provision with which this case is concerned can only have been made under the apparent authority of s. 72 of the Health Act, 1970. That this is so has been conceded in the arguments and submissions made to this Court. This particular provision is contained in art. 6, sub-art. 3, and I will refer to this particular provision henceforth in this judgment as “the regulation.” It is in the following terms:
“(3) The class of persons entitled to avail themselves of services under section 52 or section 56(2) of this Act shall not include persons who require treatment for injuries received in a road accident except where it is established to the satisfaction of the Chief Executive Officer of the Health Board that the applicant for such services has not received or is not entitled to receive damages or compensation in the nature of damages from another person in respect of the injuries.”
Section 72 of the Act, under which it is agreed this regulation purports to have been made, is in the following terms:
“72 (1) The Minister may make regulations applicable to all health boards or to one or more than one health board regarding the manner in which and the extent to which the board or boards shall make available services under this Act and generally in relation to the administration of those services.
(2) Regulations under this section may provide for any service under this Act being made available only to a particular class of the persons who have eligibility for that service.”
The defendant has challenged the validity of the regulation. He mounts this challenge on two distinct grounds. In the first place he questions whether the regulation is properly made within the powers conferred on the Minister by section 72. Obviously, if he succeeds on this ground the regulation will be held to be ultra vires the Minister and on that account to be void. If, on the other hand, the regulation is held to be within the apparent authority conferred on the Minister by the section, then the Court must consider whether the section itself is valid having regard to the provisions of the Constitution. It is well settled that the consideration of any question involving the validity of a statute or a section thereof should, in appropriate circumstances, be postponed to the consideration of any other question, the resolution of which will determine the issue between the parties. It is, therefore, proper in this case that the question of ultra vires, apart from any question of constitutionality, should first be considered. In the consideration of such question, however, the validity of the section must be presumed and it must be interpreted in accordance with the existence of such a presumption. This means that if the section is capable of being interpreted in two ways, one of which would give a meaning which is consistent with what is permitted by the Constitution and the other of which would not, that meaning which is so consistent must be adopted.
The interpretation of the section is a prerequisite to a determination of whether what purports to be done by the regulation is, in fact, within the Minister’s powers under the section. What then is permitted by section 72? The first sub-section applies only to health boards and clearly relates to the manner in which these boards are to administer the health services provided for under the section. While it refers to the making of regulations “regarding the manner in which and the extent to which the board or boards shall make available services”, this must not be taken as meaning that such regulations may remove, reduce, or otherwise alter obligations imposed on health boards by the Act. To attach such a meaning, unless compelled to do so by the words used, would be to attribute to the Oireachtas, unnecessarily, an intention to delegate in the field of lawmaking in a manner “which is neither contemplated nor permitted by the Constitution.” (See this Court’s judgment in Cityview Press v. An Chomhairle Oiliúna. 1 Accordingly, these words must be taken as applying only to standards, periods, places, personnel or such other factors which may indicate the nature and quality of the services which are to be made available. However, it is not so much on this sub-section as on sub-s. 2, that reliance was placed in justification of the regulation. I again quote this subsection:
“Regulations under this section may provide for any service under this Act being made available only to a particular class of the persons who have eligibility for that service.”
Here, again, it is necessary to seek a meaning for these words which absolve the National Parliament from any intention to delegate its exclusive power of making or changing the laws. Needless to say, if such a meaning is not possible then the invalidity of the sub-section would be established. Prima facie, therefore, these words are to be interpreted in such a manner as to authorise only exclusions which the Act itself contemplates. Such exclusions may be possible in relation to particular services for persons with limited eligibility. Those with such eligibility are classified under s. 46 and the Minister, by sub-s. 3, is given power to change or alter this classification. The obligation imposed on health boards is to provide, not all the services, but, such services as are specified, for persons with limited eligibility. While I do not find it necessary to come to a final decision in this regard it seems to me possible that regulations under the sub-section could excuse a particular health board or health boards from the obligation to provide a particular service for a particular class of those with limited eligibility, while the obligation to provide that service for others with limited eligibility remained. I am, however, satisfied that the sub-section is not to be interpreted as permitting by regulation the cancelling, repeal or alteration of anything laid down in the Act itself unless such is contemplated by the Act.
Having said this, I turn to what the regulation purports to do. It, in effect, seeks to add new sub-sections to s. 52 and 56 of the Act which exclude, from the benefit of these sections and the statutory entitlement thereby afforded, a category of persons whose exclusion is in no way authorised or contemplated by the Act. Included in this category must, necessarily, be persons who by the Act are given full eligibility and full statutory entitlement to avail of the services provided for by the two sections without charge. This is, in reality, an attempt to amend the two sections by ministerial regulation instead of by appropriate legislation. In my view, the National Parliament could not and did not intend to give such a power to the Minister for Health when it enacted s. 72 of the Health Act, 1970. Accordingly, in my view, the regulation is ultra vires the Minister and is void.
I wish to add that during the argument on this issue the standing of the defendant to raise these questions of validity was itself questioned. In this respect reliance was placed on the decision of this Court in Cahill v. Sutton. 4 While this decision referred to a constitutional issue its reasoning could apply equally to an issue of ultra vires, in relation to rules or regulations made under statutory power. I am quite satisfied that the defendant has sufficient standing to raise this question of ultra vires. By reason of the regulation he has been asked to meet a claim in respect of hospital charges which now proves, in my view, to be unjustified and which he could only dispute by questioning the regulation as a consequence of which these charges were imposed.
Henchy J.
I concur with the judgment of the Chief Justice.
Griffin J.
I concur with the judgment of the Chief Justice.
Hederman J.
I concur with the judgment of the Chief Justice.
McCarthy J.
I also agree with the judgment of the Chief Justice in holding that the regulation in question is ultra vires the Minister and is void.
I wish, however, expressly to reserve for further consideration the question as to whether or not the decision of this Court in Cahill v. Sutton 4 and the reasoning underlying it are applicable to an issue of ultra vires in relation to rules or regulations made under statutory power and, if necessary, such limits as it may be necessary to impose upon the application of Cahill’s Case 4 in such circumstances. In the instant case it is, in my judgment, beyond argument that when a defendant is subjected to a claim based upon the alleged liability, past and future, of the plaintiff to pay hospital bills charged by a health authority or by the hospital itself, such defendant is entitled to challenge the validity of the charges making up such bills in any manner in which the plaintiff himself would be entitled to do. It is, in my view, quite unnecessary to consider the application of any principle to be drawn from Cahill’s Case.
Lovett v. Minister For Education
[1997] 1 I.L.R.M. 89
Kelly J
Facts
The applicant is a married man with three children. He is almost 48 years old. He took up the post of principal of Ramsgrange Community School, Co. Wexford, on 1 July 1977. In October 1993, he was suspended from that position. His suspension arose following the discovery of irregularities in the finances of the school. For some months prior to his suspension, the applicant had been absent from his post on grounds of ill health.
On 25 November 1993 he notified the first named respondent (the minister) of his wish to apply for early retirement on the grounds of infirmity. The application was not processed at that time. This was because of an apprehension on the part of the minister that the applicant might not be entitled to a retirement pension as he was under investigation concerning the irregularities. However, at the request of the board of management of the school, the minister made ex gratia payments to the applicant in lieu of remuneration with effect from the date of his suspension. He has been paid £54,189.15 in total by way of such payments.
The investigation of the financial irregularities resulted in the applicant being charged with offences of dishonesty. On 24 January 1995 he pleaded guilty to three charges which had been preferred against him. He was sent forward to the Circuit Court to be dealt with on foot of these pleas of guilty.
On 4 March 1995 the applicant applied to the minister for early retirement on the grounds of disability.
On 9 June 1995 a letter was sent from the Department of Education to the applicant. It informed him that, in view of his plea of guilty in the District Court, the ex gratia payments would cease with immediate effect. It also informed him that his application for retirement on the grounds of ill health was being processed and that a further letter in that regard would be sent. Such a letter was sent on 21 June 1995. It informed the applicant that his application for early retirement on grounds of disability had been approved with effect from 25 November 1993. It further indicated that a payment on account in respect of his pension would issue to the applicant on 29 June 1995. It also pointed out that the precise manner in which the lump sum would be dealt with would be the subject of a further letter which would be issued shortly thereafter.
Meanwhile, the applicant’s case before the Circuit Court was adjourned on a number of occasions. This was because the Circuit Court judge indicated that he would not impose sentence until he was informed of the applicant’s position regarding his pension rights. These appeared to be dealt with in the letter of 21 June 1995 from the department.
On 6 July 1995 the matter was finally dealt with before the Circuit Court. A suspended sentence of two years’ imprisonment was imposed.
On 3 August 1995 the Department of Education wrote to the applicant in the following terms:
Dear Mr Lovett,
I am directed by the Minister for Education to refer to your pension entitlements under the Secondary Teachers Superannuation Scheme.
Paragraph 8(1) of the Secondary Teachers Superannuation (Amendment) Scheme 1935 (SR & O 1935 No. 48) provides that where a person in receipt of a pension is sentenced to a term of imprisonment exceeding 12 months, such pension shall be forfeited as from the date of such conviction. This paragraph also provides that in these circumstances a sum equal to the difference between contributions made to the pension fund by a person and the amount of pension paid to that person shall be paid to him on forfeiture of pension. I enclose a copy of the relevant provisions for your information.
The minister notes that on 6 July 1995 you were sentenced to two years’ imprisonment (suspended) by Wexford Circuit Court. In your case the amount of contributions made by you are less than the payments made to you, including the pension and lump sum gratuity payable to you and which has been applied to offset the ex gratia payments made to you during your suspension. Accordingly, no further payments will be made to you from the pension scheme with effect from 6 July 1995, the date of your conviction and sentence.
This letter must have come as something of a shock to the applicant since the letter from the department of 21 June 1995 made no mention of the possibility of forfeiture pursuant to the relevant provisions of the scheme. Nor does it appear that the possibility of forfeiture of the pension was drawn to the attention of the learned Circuit Court judge who imposed the two year suspended sentence. Mr Collins SC, on behalf of the minister, very fairly accepts that had the Circuit Court judge been apprised of the accurate position on the pension he might well have imposed a different sentence.
It is the validity of the forfeiture and of paragraph 8(1) of the scheme that is at issue in these proceedings.
The statutory background
S. 2 of the Teachers’ Superannuation Act 1928 empowers the Minister for Education with the consent of the Minister for Finance to prepare, in relation to any particular class or classes of teachers, a scheme with the object of providing pensions and gratuities for or in respect of the teachers in question and to carry such scheme into execution.
S. 3 of that Act sets out the provisions which may be contained in such a superannuation scheme. It provides as follows:
3
(1). A superannuation scheme may contain provisions in relation to all or any of the following matters, that is to say:
(a) the setting up of a pension fund for the purposes of such scheme and the administration of such fund;
(b) the payment into such fund by teachers to whom such scheme applies of such contributions as may be prescribed by such scheme;
(c) the payment into such fund of such monies as may be provided by the Oireachtas for the purposes of such scheme;
(d) the payment out of such fund to or in respect of teachers to whom such scheme applies of pensions and gratuities at such rates in such manner and on such conditions and restrictions (including restrictions on alienation) as may be prescribed by such scheme.
(2) A superannuation scheme may authorise the deduction of such sums as may be prescribed by such scheme from or in respect of salaries or other payments payable to teachers to whom such scheme applies and the payment of the sums so deducted into the pension fund set up under such scheme.
(3) A superannuation scheme may (in addition to or without the deductions mentioned in the foregoing subsection) authorise the deduction of such sums as may be prescribed by such scheme from any grants payable in respect of schools in which teachers to whom such scheme applies are employed and the payment of the sums so deducted into the pension fund set up under such scheme.
(4) Where a superannuation scheme is expressed to apply to any class of teachers to whom the National School Teachers (Ireland) Act 1879, applies, such scheme may be in addition to or in substitution for the provisions of the said Act as amended by the Pensions (Increase) Act 1920, relating to such class of teachers and may revoke or amend such provisions accordingly.
S. 5 of the Act provides that no superannuation scheme is to come into force unless and until it has been laid before each house of the Oireachtas and has been confirmed by resolution of each such house.
Pursuant to the provisions of this Act, the first named respondent brought into effect the Secondary Teachers Superannuation Scheme 1929. That scheme has been amended on a number of occasions. The relevant amendment scheme is the Secondary Teachers Superannuation (Amendment) Scheme 1935 (SR & O 1935 No. 48). It is paragraph 8(1) of this scheme which is impugned in these proceedings.
Before considering this paragraph, it should be noted that the scheme does not apply in terms to community schoolteachers such as the applicant. However, the benefits of the scheme have over a long period been extended on an administrative basis to such teachers and the respondents accept that the applicant is entitled to be dealt with as though he were a person to whom the scheme would apply directly.
Paragraph 8(1) of the scheme is as follows:
If any person in receipt of a pension under the principal scheme is, during the continuance of such pension, convicted of a crime or offence by a court of competent jurisdiction and is sentenced by that court for that crime or offence to imprisonment with hard labour for any term or to imprisonment for a term exceeding 12 months or to penal servitude for any term, such pension shall be forfeited as from the date of such conviction, but if the total amount paid to such person on foot of such pension is less than the contributions to the pension fund made by such person a sum equal to the difference between such total amount and such contribution shall be paid to him out of the pension fund.
The reliefs sought
In these proceedings, the following reliefs are claimed by the applicant.
1. An order of certiorari to remove for the purpose of being quashed the decision of the minister made on 3 August 1995 whereby she purported to forfeit the applicant’s pension entitlements.
2. A declaration that the applicant’s pension rights and entitlements have not been validly forfeited pursuant to the provisions of paragraph 8(1) of the scheme.
3. A declaration that the provisions of paragraph 8(1) of the scheme were made ultra vires the powers of the minister and are null and void and of no legal effect.
4. A declaration that the provisions of paragraph 8(1) of the scheme are inconsistent with the provisions of the Constitution and the personal rights enjoyed by the applicant thereunder and are therefore void.
There are a number of subsidiary reliefs claimed but they are not relevant for the purposes of this application.
At the hearing before me, it was accepted on the applicant’s behalf that given the terms of paragraph 8(1) of the scheme, the applicant’s pension was forfeited by operation of law rather than as a result of any decision made by the minister. Accordingly, the first of the reliefs sought is inappropriate. I turn now to consider the remainder of the reliefs which are sought.
The ultra vires argument
This argument is based on the absence from ss. 2 and 3 of the Act of any express reference to the inclusion in a pension scheme of a provision providing for the forfeiture of superannuation entitlements. Coupled with this argument is the contention that these sections cannot be construed so as to permit paragraph 8(1) of the scheme to be enforced, since to do so would permit an improper and unconstitutional delegation of power.
There is no doubt but that the validity of a statutory scheme or statutory instrument may be challenged on grounds that the making of the instrument or any part of it was not intra vires the relevant enabling power. I must, therefore, examine the statutory provisions with a view to ascertaining whether or not the minister was justified at law in including the forfeiture provisions in the scheme, having regard to the terms of the Act.
S. 2 of the Act entitles the minister to prepare a scheme such as the present one with the object of providing pensions and gratuities for teachers.
S. 3 of the Act sets forth a number of matters which may be contained in a scheme. I am of opinion that this section is permissive as to what may be contained in such a scheme. It does not amount to an exhaustive list of the provisions which can be so contained. S. 3 does not authorise in an explicit way the inclusion of a forfeiture provision in a scheme. Such being so, can paragraph 8(1) of the scheme be justified by reference to these provisions.
Under s. 3(1)(a), the scheme may contain provisions relating to the administration of the fund. Under s. 3(1)(d), the scheme may contain provisions relating to the payment out of the fund to or in respect of teachers to whom such scheme applies ‘of pensions and gratuities at such rates in such manner and on such conditions and restrictions (including restrictions on alienation) as may be prescribed by such scheme’.
Whilst the wording of ss. 2 and 3 is wide, can it bear the inclusion in a scheme of the forfeiture provision in suit?
To answer this, one might ask what is the object sought to be achieved by paragraph 8(1) of the scheme? The answer was provided both in the written submissions of the respondents and through counsel. It is said to have ‘the legitimate aim of seeking to deter the commission of serious criminal offences’. During the hearing this was qualified so as to confine its application to teachers. In fact this is incorrect since paragraph 8(1) applies only to retired teachers.
In Cityview Press Ltd v. An Chomhairle Oiliúna [1980] IR 381 at p. 398, O’Higgins CJ in dealing with arguments similar to those put forward by the applicant here said this:
The giving of powers to a designated minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever changing situations which confront both the legislature and the executive in a modern state. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order making process, provides that any regulation or order which is made should be subject to annulment by either house of parliament. This retains a measure of control, if not in parliament as such, at least in the two houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the national parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits — if the law is laid down in the statute and details only are filled in or completed by the designated minister or subordinate body — there is no unauthorised delegation of legislative power.
Applying the test formulated in this quotation from the judgment of O’Higgins CJ, I am of opinion that the provisions of paragraph 8(1) of the scheme go far beyond the principles and policies which are contained in the 1928 Act. That Act had as its object the formulation and carrying out of schemes for the provision of pensions and gratuities for teachers and former teachers. It does not appear to me that it has anything to do with deterring the commission of criminal offences whether by teachers or retired teachers. If it had, one would expect to find some mention of this either in the long title or in the body of the Act. There is none.
It is, I think, significant that although s. 3 contains a non-exclusive list of what may be contained in a scheme, nowhere is there mentioned any entitlement to include a forfeiture, or indeed any other provision, in such a scheme by reference to criminal wrongdoing.
Paragraph 8(1) of the scheme, in my view, goes very much further than giving effect to principles and policies which are contained in the statute itself.
I am of opinion that the ‘forfeiture’ provision contained in paragraph 8(1) of the scheme cannot be regarded as the mere filling in or completion of a detail by the minister.
The very use of the term ‘forfeiture’ is indicative of something penal. The justification given for it by the minister is that it is a deterrent against the commission of crime. But the 1928 Act has nothing to do with the enforcement of the criminal law even in an indirect way.
Counsel for the respondents drew my attention to a dictum of Butler J in Minister for Industry and Commerce v. Hales [1967] IR 50 at p. 83. Although a dissenting judgment, the passage cited appears to me to be apposite. It is as follows:
Considerations of constitutionality apart, the judicial control of subordinate legislation operates only through the doctrine of ultra vires, and the function of the courts can only be fulfilled by enquiry as to whether the statutory rule or order falls within the scope of the enactment from which it purports to derive its authority. This is the check placed upon arbitrary government by the executive. In a consideration of any given power, the court must not only interpret the terms in which the statutory power is expressed to see that it is not given any wider application than is necessary, but must also see that the power does not exceed or interfere with or negative the provisions and intentions of the enactment as a whole.
Paragraph 8(1) in my view, fails this test just as resoundingly as it does the test formulated by O’Higgins CJ in the Cityview Press case. In fact I am not at all sure that there is any real difference between the two tests save that in the Cityview Press case O’Higgins CJ was also considering the constitutional authority of parliament.
In my view, paragraph 8(1) does not fall within the scope of the enactment from which it purports to derive its authority. Furthermore, it appears to me that it exceeds the provisions and intentions of the 1928 Act as a whole.
In these circumstances, I hold that paragraph 8(1) of the scheme is ultra vires the powers of the minister under ss. 2 and 3 of the 1928 Act and that accordingly the applicant is entitled to a declaration in accordance with paragraph 3 of the notice of motion to the effect that the provisions of paragraph 8(1) of the scheme were made ultra vires the powers of the minister and are null and void and of no legal effect. It follows from this that the applicant is also entitled to a declaration that his pension rights and entitlements have not been validly forfeited pursuant to the provisions of that paragraph.
In coming to this conclusion I have not lost sight of two subsidiary arguments which were advanced by the respondents.
The first was that the impugned provision does not purport to remove a vested or existing entitlement. Rather, it was urged, it amounted to nothing more than a condition or restriction upon the entitlement to enjoy a pension. I do not think that this argument is well founded. Paragraph 8(1) applies only to persons who are in receipt of a pension. By definition they are retired. At that stage they have a vested or existing entitlement to their pension, which is a contributory one. The operation of paragraph 8(1) disentitles them to their pension. This argument also fails to address the very wording of paragraph 8(1). It does not speak of a condition or restriction on the entitlement to enjoy the pension. It speaks of its forfeiture. The use of that word cannot be ignored nor can it be interpreted euphemistically so as to mean something less than what it is.
The second subsidiary argument relates to s. 5 of the 1928 Act which I have already alluded to. It is clear from its terms that the scheme in question could not have come into force unless and until it was laid before each house of the Oireachtas and was confirmed by resolution of each such house.
In the Cityview Press case, already cited, it was clear that the relevant regulation there required that it should be subject to annulment by either House of Parliament. In the present case the scheme required the positive confirmation of both houses before it came into effect. Whilst this provided a safeguard of sorts, the responsibility rests with the court to ensure that the exclusive authority of the Oireachtas in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. It is furthermore the duty of the court to ensure that the minister does not operate in an ultra vires fashion even in circumstances where the scheme made by such minister is subject to confirmation by resolution of each house. In my view, the minister did act ultra vires in the present case.
For these reasons I make the declarations sought at paragraphs 2 and 3 of the notice of motion.
In these circumstances it is not strictly necessary for me to proceed to consider the second part of the applicant’s case. Lest, however, I am wrong in the views which I have formed in relation to the first argument I now turn to consider the applicant’s second contention.
The constitutional argument
I accept that when the applicant was approved for early retirement on grounds of disability he became entitled to the payment of a pension. Indeed, were he not so entitled, the pension in question could not have been forfeited. Paragraph 8(1) of the scheme means that this pension right is automatically forfeited and lost to the applicant. His monthly pension entitlement has been calculated at a sum of approximately £1,100. Applying an actuarial multiplier to that from the applicant’s present age to his 73rd year, it amounts to a capital loss of approximately £330,000. This sum was not questioned by the respondents. Accordingly, the forfeiture of this entitlement is of major significance for the applicant. It must be borne in mind that the pension in the instant case was a contributory one.
The applicant contends that the provisions of paragraph 8(1) of the scheme constitute a failure by the State to protect the constitutional rights of the applicant and in particular his property rights in his pension.
Paragraph 8 of the scheme is part of a pre-1937 law and therefore falls to be dealt with pursuant to the provisions of Article 50 of the Constitution. It must therefore be examined to see whether it is inconsistent with the provisions of the Constitution. It does not enjoy any presumption of constitutionality. On this aspect of the case heavy reliance is placed by the applicant on the decisions of both this Court and the Supreme Court in Cox v. Ireland [1992] 2 IR 503.
In that case the plaintiff, who was employed as a teacher in a community school, had been convicted by a Special Criminal Court of a scheduled offence. He was sentenced to two years’ imprisonment. On his release from prison, the said plaintiff wished to resume his former teaching position. By reason of the provisions of s. 34 of the Offences Against the State Act 1939, he was barred from so doing. That section provided that whenever a person was convicted by a Special Criminal Court of an offence set out in the schedule to that Act, and that person held at the time of such conviction an office or employment remunerated out of the central fund or monies provided by the Oireachtas or raised by local taxation, then that person should, immediately upon conviction, forfeit that office or employment and should be disqualified from holding any like office or employment for a period of seven years subsequent to the date of conviction.
Mr Cox sought a declaration that the provisions of s. 34(1) to (4) of the Act were invalid having regard to the provisions of the Constitution. He was successful both in this Court and on appeal.
In the course of his judgment Finlay CJ said at p. 522:
It is clear that the provisions of s. 34 of the Act of 1939, when it becomes applicable to any person convicted of a scheduled offence in a Special Criminal Court, potentially constitutes an attack, firstly, on the unenumerated constitutional right of that person to earn a living and, secondly, on certain property rights protected by the Constitution, such as the right to a pension, gratuity or other emolument already earned, or the right to the advantages of a subsisting contract of employment.
I am satisfied that the applicant’s right to a pension in the instant case constitutes a property right which is protected by the Constitution. I am fortified in that conclusion by what is stated in the passage which I have just cited.
Later in the same judgment Finlay CJ said this:
The court is satisfied that the State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its laws to provide onerous and far-reaching penalties and forfeitures imposed as a major deterrent to the commission of crimes threatening such peace and order and State authority, and is also entitled to ensure as far as practicable that amongst those involved in the carrying out of the functions of the State, there is not included persons who commit such crimes. The State must in its laws, as far as practicable, in pursuing these objectives, continue to protect the constitutional rights of the citizen.
The net question which therefore falls for determination here is whether there has been a failure in the protection of the constitutional rights of the applicant, which is not warranted by the objectives which it is sought to secure.
In my view, paragraph 8(1) of the scheme amounts to an unreasonable and unjustified interference with the applicant’s constitutional entitlements. It is not warranted by the objectives which it is sought to secure.
Quite apart from the fact that such objectives do not appear to me to be justified by any provision of the Act of 1928, it is clear that paragraph 8(1) can apply to a very large number of crimes of widely varying seriousness.
So for example, a conviction of a crime or offence which merits a period of seven days’ imprisonment with hard labour gives rise to a forfeiture whereas a term of imprisonment of 11 months does not. On the other hand, a suspended sentence of 15 months’ imprisonment gives rise to a forfeiture whereas a custodial sentence of eleven months’ imprisonment does not. It is reasonable to assume that a judge, when imposing a suspended sentence, takes a less serious view of the offence alleged than when a custodial sentence, even if of lesser duration, is imposed. In the above example, however, the suspended sentence attracts a forfeiture whilst the custodial sentence does not.
It is also to be noted that paragraph 8(1) applies across the entire range of the criminal law. Nowhere is it suggested that the crime or offence which attracts the penalty which triggers paragraph 8(1) has to have anything to do with the office or occupation formerly held by the retiree. Indeed, it is difficult to see why retired teachers should be subject to these provisions. What legitimate objective of the State is being satisfied by this provision? It is true of course that the State has an interest in deterring crime in general but that would not justify the singling out of retired teachers for these special measures. Some case might be made to support such a provision concerning serving teachers who hold positions of trust in our society but none can, in my view, be advanced concerning retired teachers.
Paragraph 8(1) is mandatory in its application. In my view, it fails to pass the test prescribed by the Supreme Court in Cox’s case and does not, as far as practicable, protect the constitutional rights of the applicant. A retired teacher cannot escape its effects even in circumstances where he could show that the offence of which he was convicted was a minor one, had nothing to do with his former occupation, and attracted only a sentence of a few days’ imprisonment with hard labour or a suspensory sentence of more than 12 months. It does not even have an ameliorating provision similar to that which was contained in s. 10234(5) of the Offences Against the State Act. Under that subsection the government was entitled at its absolute discretion to remit in whole or in part any forfeiture or disqualification incurred under the section. Although that provision did not save s. 34 from its constitutional invalidity, it was at least an attempt to provide a mechanism whereby the harshness of the remaining provisions of that section might in an appropriate case be remitted. In the present case, paragraph 8(1) takes effect regardless of personal circumstances once the appropriate punishment has been imposed by the court of trial. Whilst the existence of such a provision would not, in my view, save paragraph 8(1) from being unconstitutional, it might very well have rendered this application unnecessary. The application might also have been unnecessary had the letter from the department on 21 June 1995, made reference to paragraph 8(1) so as to alert the applicant’s then legal advisers and the Circuit Court judge as to its existence.
Whilst I have considered and given my views on this aspect of the case, I do not propose to grant the declaration sought as to the constitutionality of paragraph 8(1). It does not seem appropriate to do so as I have already struck it down on other grounds. Such an approach, I believe, to be in accordance with the principle of judicial self-restraint.
O’Neill v. Minister for Agriculture and Food [1997] 2 I.L.R.M. 435
The factual and legislative background is fully set out in the judgment which will be delivered by Murphy J.
Three possible issues arose for resolution in the High Court and this Court. First, as to whether the scheme adopted by the first named defendant (hereafter ‘the minister’) which crystallised in the arrangement by virtue of which licences were granted on an exclusive basis to nine AI stations for areas which between them comprised the entire country (and which I shall hereafter refer to as ‘the exclusivity scheme’) was intra vires the Livestock (Artificial Insemination) Act 1947 (hereafter ‘the 1947 Act’). If it was not, the claim of the applicant would have to be upheld. If it was, the second issue would arise, i.e. whether the exclusivity scheme could only be implemented by regulations made by the minister in exercise of the power conferred on him by s. 3 of the 1947 Act. If it could not be implemented in any other way, again the claim of the applicant would have to be upheld. If the action of the minister in adopting the exclusivity scheme was intra vires the 1947 Act and was properly carried into effect by administrative decisions rather than in the form of regulations made under the 1947 Act, the third question would arise, i.e. as to whether it was nonetheless in contravention of the obligations of the State under the law of the European Union and, in particular, Articles 86 and 90 of the Treaty of Rome.
The legislative framework provided by the 1947 Act, as was stressed more than once in the course of argument, is of great simplicity. S. 3 empowers the minister to make regulations for controlling the practice of AI except under and in accordance with a licence. S. 7 empowers the minister to issue such licences and to ‘attach such conditions as he thinks fit’ to a licence. Yet however simple, even skeletal, the scheme of the Act may be, there is applicable to it the large corpus of case law which has been built up both in this and the neighbouring jurisdiction as to the legal constraints which affect the exercise of such powers by a person in the position of the minister.
At the outset, it is necessary to bear in mind that the presumption of constitutionality to which the Act is entitled carries with it the corollary, as found by this Court in East Donegal Co-Operative Livestock Marts Ltd v. Attorney General [1970] IR 317, that powers such as this must be exercised in accordance with the requirements of the Constitution, including the application, where appropriate, of the rules of natural justice. As Walsh J put it (at p.344):
[The provisions of the Act] do not give [the minister] an absolute or an unqualified or an arbitrary power to grant or refuse [licences] at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.
In that case, the court was concerned with a statutory scheme designed to regulate a trade being carried on in particular premises: here we are concerned with a scheme intended to regulate a particular practice, i.e. the artificial insemination of cattle. However, the principle enunciated by Walsh J in the passage just cited is clearly applicable to the exercise by the minister of the discretion conferred on him by the 1947 Act to grant or issue licences for the practice of artificial insemination.
Since the legislation and regulations apart, the practice of artificial insemination of cattle was a lawful one, it would seem prima facie that any person who can satisfy the minister that he has whatever technical qualifications appear appropriate and is in a position to comply with whatever other requirements might reasonably be imposed on him by the minister is entitled as a matter of right to a licence. That, however, inevitably raises the question as to whether the minister, in considering applications for licences under the 1947 Act, was entitled to adopt a particular policy which might mean that applicants, such as the applicant in the present case, who appeared to be in a position to comply with such threshold requirements, would nonetheless not automatically receive a licence. As to the legitimacy of the minister’s adopting such policy considerations, I venture to repeat what I said in Carrigaline Community Television Broadcasting Co. Ltd v. Minister for Transport, Energy and Communications [1997] 1 ILRM 241 at p. 284:
It is clear that, in the case of at least some licensing regimes, questions of policy cannot play any part. This would be the case, for example, with television reception licences and driving licences, provided that in the latter case, certain conditions of eligibility are met. At the other extreme, questions of policy must obviously affect the granting or refusal of planning permission and indeed in that area the authority is obliged by statute to adopt a specific set of policy objectives in the form of a development plan.
The licensing regime established under the 1926 Act as amended by subsequent legislation belongs to an intermediate category. In the case of this and similar licensing regimes, the adoption by the licensing authority of a policy could have the advantage of ensuring some degree of consistency in the operation of the regime, thus making less likely decisions that might be categorised as capricious or arbitrary. But it is also clear that inflexible adherence to such a policy may result in a countervailing injustice. The case law in both this jurisdiction and the United Kingdom illustrates the difficulties involved in balancing these competing values.
I also cited in that decision this passage from the judgment of Bankes LJ in R. v. Port of London Authority, ex parte Kynoch Ltd [1919] 1 KB 176 at p. 184:
There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule or come to a determination not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.
The legitimacy of adopting a policy was also recognised by the House of Lords in British Oxygen Ltd v. Minister of Technology [1971] AC 610 where Lord Reid said (at p. 625):
What the authority must not do is to refuse to listen at all. But a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say — of course I do not mean to say that there need be an oral hearing.
Similar principles have been adopted by the Irish courts in cases such as State (McGeough) v. Louth County Council (1956) 107 ILTR 13 and McNamee v. Buncrana UDC [1983] IR 213; [1984] ILRM 77.
Now let us consider what happened in this case. While the applicant was granted a licence on 7 July 1986, permitting him to establish an artificial insemination station, he was not granted a field service licence or a licence to distribute semen to ‘DIY’ AI licence holders. The minister in November 1990 set out in full in a letter to the applicant the reasons why his application was being refused and the policy considerations were explained in full. The minister received, and clearly considered, representations made by the applicant following that decision, but in a letter dated 20 June 1991 it was reiterated that the minister’s policy had not changed.
There is, accordingly, no doubt that the minister complied with his obligation to hear and respond to the case being made by the applicant that the policy should be altered so as to accommodate his application. On that ground, there can be no criticism of the minister. The matter, however, does not end there: it is unquestionably the case that the minister, as he made clear in his correspondence with the applicant, had fettered the exercise of the discretion conferred on him by the 1947 Act by excluding the possibility of granting a licence which would conflict with the exclusivity scheme. The first issue that arises, accordingly, is as to whether the minister was entitled under the Act to impose that constraint on the exercise of his discretion or whether it was an unlawful abdication of the powers vested in him under the 1947 Act.
The evidence of Mr Luke Mulligan, an assistant principal officer in the Department of Agriculture responsible for the administration of the AI regime, as to the reasons for the adoption of the exclusivity scheme was summarised by the learned High Court judge as follows:
[Mr Mulligan] asserted that the objectives of the AI service were to ensure a comprehensive quality service all the year round to all farmers; also veterinary controls in respect of animal welfare, health and good conception rates and the provision of high genetic merit semen in respect of all breeds being available to all breeders with large and small herds. The regional monopoly system had evolved and in 1959 was regarded as a mechanism to ensure that all farmers would have access to an available service. Furthermore, if there was not a geographical division, then it would be difficult to pin responsibility if a problem should arise with regard to disease or inadequacy of service. Moreover, proper record keeping and control were necessary to ensure quality. Progeny testing was complex, expensive and required record keeping. Evaluations were done in the department. The organisation by regional monopoly ensured that the licensee was accountable and responsible for ensuring a proper AI service in the entire of its region; to ensure proper training, records and control, conception rates and progeny testing. The record keeping was complex, costly and required continuity of records. It was stressed that unless the licensee had exclusivity in a region, then it would be difficult for the department to enforce the condition with regard to availability of a proper service throughout the region to both large and small herd owners.
There is no indication in the 1947 Act that these undoubtedly laudable objectives constituted the underlying policy of the Act, with two qualifications. The evidence in the High Court established, and common sense would have in any event suggested that it was the case, that the major reason for introducing statutory controls over AI in 1947 was because of the desirability of controlling disease and improving the general quality of the national herd. The system of control spelled out is negative rather than positive: the practice of AI may only be carried on where a licence is granted. There is nothing in the Act to suggest that the Oireachtas intended that, for the reasons given in the passage from the High Court judgment already cited, the minister should divide the country into a number of regions, in respect of each of which only one licence was to be granted. I am satisfied that in adopting the exclusivity scheme the minister acted ultra vires the 1947 Act and, on that ground alone, the appeal should be allowed.
As to the second issue, I am in any event satisfied that, even if the Oireachtas envisaged the adoption by the minister of the exclusivity scheme, it is highly improbable that they intended the scheme to be established by a series of purely administrative decisions with the regulations remaining entirely silent. Apart from any other considerations, the minister (or successive ministers) by adopting the approach that they did ensured, whether consciously or not, that the administrative scheme being adopted would be immune from the legislative scrutiny normally afforded to statutory instruments. S. 10 of the 1947 Act provided that every regulation made under the Act was to be laid before each House of the Oireachtas, as soon as might be after it was made, with a concomitant power for either House to pass a resolution within 21 days annulling the regulation. In addition, the adoption by the minister of the exclusivity scheme by a series of administrative decisions ensured that it was not published in the manner required by the Statutory Instruments Act 1947. Neither the long title of the 1947 Act, the provisions of the measure itself, the subject matter on which it was intended to operate or the context in which it was enacted suggest in any way that it was the intention of the Oireachtas that the important safeguards shielding the power of the minister to enact by way of delegated legislation could be circumvented. The fact that such administrative decisions may be challenged, as here, by the invocation of the judicial review procedure is not, of itself, sufficient to justify, in a case such as the present, the departure by the minister from the salutary practice of ensuring that a scheme such as the exclusivity scheme in the present case is embodied in regulatory form, ensuring both legislative supervision and accessibility to the public, rather than be implemented by administrative decisions taken by the minister in private.
I reach these conclusions with regret. The evidence in the High Court established overwhelmingly that some scheme of this nature was essential if the practice of artificial insemination was to be both controlled and facilitated in the interests of an industry of paramount importance in the Irish economy. This Court is solely concerned, however, with the legality of the scheme and, for the reasons already given, I am forced to the conclusion that it was ultra vires the 1947 Act and, in any event, could only have been carried out in the form of regulations made under that Act.
It follows that, in these circumstances, in accordance with the settled practice of this Court, it is neither necessary nor desirable to express any view on the detailed and helpful submissions we have heard from counsel as to whether, assuming its legality under domestic law, the scheme adopted by the minister was nevertheless in contravention of the law of the European Union.
I would allow the appeal and substitute for the order dismissing the action:
(a) An order of certiorari quashing so much of the decision of the minister dated 1 December 1993 as refused to approve the applicant’s application to operate a course to train personnel in the artificial insemination of bovines;
(b) A declaration by way of judicial review that the artificial insemination field service operated by the applicant is not unlawful;
(c) A declaration by way of judicial review that any purported geographical restrictions on the provision of an artificial insemination field service or restriction on the numbers of field stations granted for this purpose are ultra vires the provisions of the 1947 Act and the Livestock (Artificial Insemination) Regulations 1948;
(d) A declaration that the regional monopoly system for the artificial insemination of cattle established by the 1947 Act is ultra vires the powers of the minister under the 1947 Act and the said regulations.
I would hear counsel on the question as to whether the action should be remitted to the High Court for the assessment of any damages which may be proved to be recoverable by the applicant.
MURPHY J
(Hamilton CJ concurring): By order of Lavan J made on 7 February 1994, the applicant/ appellant was given leave to apply by way of an application for judicial review for certain relief which included the following:
1. A declaration by way of judicial review that any purported geographical restrictions on the provision of an artificial insemination field service or restriction on the numbers of field stations granted for this purpose are ultra vires the provisions of the Livestock (Artificial Insemination) Act 1947 (‘the 1947 Act’) and the Livestock (Artificial Insemination) Regulations 1948, (SI No. 55 of 1948).
2. A declaration that the regional monopoly system for the artificial insemination of cattle established by the 1947 Act is unlawful and contrary to Articles 30, 37, 85, 86 and 90 of the Treaty of Rome.
In a comprehensive judgment delivered on 5 July 1995, Budd J concluded that the applicant was not entitled to the relief sought by him and by order dated 10 July 1995, it was so ordered.
The legislative or ministerial scheme which the applicant has challenged in the present proceedings relates to the artificial insemination of cattle, sheep, goats, swine and horses. It comprises the Livestock (Artificial Insemination) Act 1947 (‘the 1947 Act’), the Livestock (Artificial Insemination) Regulations 1948 (‘the 1948 Regulations’) and the scheme or procedure by which the Minister for Agriculture has purported to give effect to the 1947 Act and the 1948 Regulations.
The purpose of the 1947 Act is identified in the title thereto as follows:
An Act for the control of the practice of artificial insemination of cattle, sheep, goats, swine and horses.
It comprises twelve sections of which only two have direct effect on the practice of artificial insemination. Those sections are numbered 4 and 5 and respectively prohibit the export and import of the semen except under and in accordance with a licence granted by the minister pursuant to the power in that behalf contained in s. 7 of the 1947 Act. The only other means by which the Oireachtas attempted to control the practice was by s. 3 of the Act which provides as follows:
3
(1) The minister may make regulations for controlling the practice of artificial insemination of animals to which this Act applies and, in particular, for prohibiting the distribution and sale of semen of animals to which this Act applies except under and in accordance with a licence.
There are ancillary provisions in the 1947 Act rendering contravention thereof or the regulations made thereunder an offence and permitting an authorised officer to enter on and inspect premises to ensure compliance with that Act and those regulations but subject to that no further guidance is given as to the nature of the controls permitted or envisaged by the legislature.
Again the 1948 Regulations comprise a modest document containing eight paragraphs. Those regulations are confined to the artificial insemination of cows and, having imposed that limitation, the operative provisions, which it may be desirable to set out in full, are as follows:
4 No person shall distribute or sell bull semen except under and in accordance with a licence.
5
(1) Subject to paragraph (2) of this article no artificial insemination centre shall be established nor shall artificial insemination be practised by any person except under and in accordance with a licence.
(2) A licence shall not be required for the artificial insemination of a cow owned by an individual who also owns the bull from which the semen is collected.
6 A licence authorising the distribution of bull semen from an artificial insemination centre shall be subject to the following conditions and to such other conditions, if any, as may be specified in the licence:
(a) All operations conducted at or from the centre shall be under the effective supervision and control of a veterinary surgeon approved by the minister for the purpose;
(b) No person shall be employed in the collection or storage of semen or the performance of the operation of artificial insemination unless approved by the minister for the purpose;
(c) The premises on which semen is to be collected and stored, and the equipment to be used for the methods to be employed in the collection and storage of semen shall be approved by the minister;
(d) Semen shall not be collected except from a bull for the time being approved by the minister for the purpose;
(e) The licensee shall keep a record showing, in respect of each bull approved by the minister, the date and place of each artificial insemination of a cow and the name and address of the owner of the cow and such records shall be open to inspection at all reasonable times by an officer of the minister.
There is, therefore, very little guidance in the regulations as to the persons to whom a licence to distribute or sell bull semen may be granted or the conditions which might be imposed on any such licence.
In or by the year 1959 a practice in relation to the granting of licences was established which was typified by a licence granted on 9 December 1959, by the then Minister for Agriculture to the North Western Cattle Breeding Society Ltd, a copy which was put in evidence. By that licence the minister gave to the breeding society a licence expressed in the following terms:
(a) To establish an artificial insemination station at Doonally, Sligo.
(b) To establish artificial insemination substations at Letterkenny, Drumholme, Dungloe, Carndonagh, Kilmactranny, Tubbercurry, Ballina, Ballinamore, Claremorris, Westport and Elphin.
(c) To practice the artificial insemination of cows.
(d) To distribute and sell semen.
The licence was subject to the numerous conditions endorsed thereon and most particularly conditions in respect of the premises on which and the equipment with which artificial insemination was to be practised. Understandably there were also detailed provisions in relation to the quality and health of the bulls from which the semen was to be obtained; provisions for the testing of the progeny and the maintenance of records in relation to work carried out. However the controversial conditions were contained in a section entitled ‘Operational Area’. Those conditions are as follows:
1(a) The operational area within which the licensee may practice the artificial insemination of cows shall be as specified in the appendix hereto.
(b) The licensee shall be responsible for making all necessary arrangements for the provision of an artificial insemination service for cattle in the said operational area.
(c) The licensee shall not provide insemination for cows outside the said operational area without the consent of the minister.
In a reply dated 30 November 1990 to the applicant’s request for certain licences under the 1947 Act the private secretary to the Minister for Agriculture and Food explained the practice and policy of the minister in relation to the grant of such licences. The secretary recorded the historical situation and the importance of the ministerial scheme in securing and preserving the national herd. He explained that the licences were granted subject to the condition that they operated within a specified area and for that purpose and, to secure a nationwide artificial insemination service, the country was divided into nine such areas. Towards the conclusion of his letter he explained the refusal to grant a licence to the applicant in the following terms:
As regards the fact that the licences already in existence cover the entire State, this department does not consider that the issue of further licences would irrespective of its reservations regarding your proposal mentioned above, be justified, but the situation in this regard is kept under constant review.
In practice, therefore, the position is that the artificial insemination regime in operation is based on the division of the State into the nine areas in respect of each of which an artificial insemination centre has been licensed on the basis that the licensee is obliged to provide an appropriate artificial insemination service for his area and that the minister does not grant a licence to any other person practising or seeking to practice artificial insemination in that area. The issue before the learned trial judge and on appeal to this Court is whether the creation of that regime was ultra vires the minister under the 1947 Act or whether it offends the provisions of the Treaty of Rome already referred to.
The power conferred on a minister to make law by way of regulation or statutory instrument in any given case is primarily to be determined by the interpretation of the legislation purporting to confer the power. Decisions in other jurisdictions are of assistance in performing that task. However in this jurisdiction Article 15.2 of the Constitution limits the extent to which such law making power may be delegated. That article provides as follows:
15.2. 1° 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.
2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.
In City View Press Ltd v. An Chomhairle Oiliúna [1980] IR 381 at pp. 398–399 this Court in the judgment of O’Higgins CJ set out the practice in relation to ministerial orders and regulations and identified the test to be applied as to the constitutionality of such delegation in the following terms:
The giving of powers to a designated minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever changing situations which confront both the legislature and the executive in a modern state. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order making process, provides that any regulation or order which is made should be subject to annulment by either house of parliament. This retains a measure of control, if not in parliament as such, at least in the two houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the national parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits — if the law is laid down in the statute and details only are filled in or completed by the designated minister or subordinate body — there is no unauthorised delegation of legislative power.
O’Higgins CJ had earlier expressed his views in relation to the same problem in Cassidy v. Minister for Industry and Commerce [1978] IR 297 at p. 305 in a passage approved by Blayney J delivering the judgment of this Court in Purcell v. Minister for the Environment [1995] 3 IR 287; [1996] 2 ILRM 153 in the following terms (at pp. 294/160):
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 impugned, the courts have the duty to inquire whether such instrument had been made under powers conferred, and for the 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 a duty to interfere.
The difficulty of applying to the present case the tests enunciated by the former Chief Justice is that the 1947 Act provides little guidance as to the policy or principles to be implemented by the minister or the regulations contemplated by the Oireachtas. It is not merely that the lack of policy or principles deprives the minister of suitable guidance but it also fails to provide any significant restriction on the ministerial power. This would be a reason for giving a wide construction to the power conferred on the minister and a consequential doubt as to the constitutionality of the statutory delegation.
The much quoted decision of this Court in East Donegal Co-Operative Livestock Marts Ltd v. Attorney General has been relied upon in the present case for a number of reasons. Counsel on behalf of the appellant drew attention to the case as a precedent for the proposition that a statute — the Livestock Marts Act 1967 — empowering the minister concerned to make regulations in relation to the ‘provision of adequate and suitable accommodation and facilities for such auctions [of livestock]’ would not justify the minister in making regulations which imposed a quantitative, as opposed to a qualitative restriction, on marts. The respondents analysed the same case differently by pointing out that the restriction on the ministerial powers was inferred from the terms of the legislation and in particular s. 6 of the 1967 Act which provided that the regulations might be made. That section provides that:
The minister may, for the purpose of ensuring the proper conduct of places where the business of a livestock mart is carried on and the proper conduct of such businesses, adequate and suitable hygienic and veterinary standards in relation to such places and auctions of livestock at such places and the provision of adequate and suitable accommodation and facilities for such auctions and for persons and livestock at such auctions, make such regulations as he thinks appropriate in relation to such places and such businesses.
In so far as the question of ultra vires is concerned, clearly the requirement is to look at the legislation with a view to identifying the principles and policies laid down by the Oireachtas for achieving the identified purpose of the legislation. This exercise should reveal both the scope of the minister’s power and the limitations placed on it.
The East Donegal case is more frequently quoted for the proposition, which is also relevant to these proceedings, namely, that an Act of the Oireachtas must be given a constitutional construction where that is possible. The proposition was stated in the judgment of Walsh J (at p. 341) in the following terms:
Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in case of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning. At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the courts.
In the next following paragraph of his judgment Walsh J went on to consider those principles in relation to the construction of the Livestock Marts Act 1967, and commented thereon as follows at p. 341:
The long title and the general scope of the Act of 1967 constitute the background of the context in which it must be examined. The whole or any part of the Act may be referred to and relied upon in seeking to construe any particular part of it, and the construction of any particular phrase requires that it is to be viewed in connection with the whole Act and not that it should be viewed detached from it. The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from their context. Therefore, words or phrases which at first sight might appear to be wide and general may be cut down in their construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long title. Until each part of the Act is examined in relation to the whole it would not be possible to say that any particular part of the Act was either clear or unambiguous.
There is, therefore, a strong presumption that the Oireachtas did not intend to delegate to an individual minister of government the legislative powers conferred by the Constitution exclusively on the national parliament. Even in those jurisdictions where the separation of powers is not governed by the requirements of a written constitution, a presumption appears to arise that in delegating legislation parliament did not intend to confer radical powers of a legislative nature. For example in the United Kingdom it is presumed that an Act of parliament does not itself confer — less still could it by delegated legislation authorise — the expropriation of property without compensation.
Again in Attorney General v. Wilts United Dairies Ltd (1921) 37 TLR 781 Atkin LJ declined to infer that a power expressed in wide terms included the right to raise taxation. He said:
The circumstances would be remarkable indeed which would induce the courts to believe that the legislature had sacrificed all the well known checks and precautions and, not in express words but merely by implication, had entrusted a minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for purposes connected with his department.
It has never been suggested that the power to make statutory regulations should be confined to some stereotyped administrative provisions. It may be, and I see no reason why it should not be, that regulations designed by a minister and his officials to secure a particular statutory objective would be novel and innovative and accordingly not in their terms anticipated by the legislature. It is the scope of such regulations and above all the manner in which they affect or touch upon the property or other constitutional rights of the citizens which may raise doubts as to how far they were within the contemplation of the Oireachtas. Whether the Oireachtas itself would have agreed to the division of the State into the nine identified areas for the allocation of a single licence for the sale and distribution of semen may be open to doubt but I find it inconceivable that the legislature would have contemplated or authorised the creation of such a scheme by the executive. The scheme manifestly affects the right of citizens to work in an industry for which they may be qualified and the rights of potential customers to avail of such potential services. It is not that there is any reason to doubt that the scheme ultimately devised by the minister was desirable, and may well have operated in the national interest, it is simply that such a scheme is so radical in qualifying limited number of persons and disqualifying all others who may be equally competent from engaging in the business. It may be that such a far-reaching power could not be delegated by the national parliament at all. Certainly I would be unwilling to accept that in using general words the Oireachtas contemplated such a far-reaching intrusion on the rights of citizens.
The foregoing analysis has been made as if the existing regime were incorporated in regulations made by the minister under the 1947 Act. Of course that was not the case. The controversial requirements of the regime are incorporated in the ministerial scheme which is implemented by the imposition of the conditions in the statutory licences particularly those relating to the ‘operational areas’. However if, as is the case, those provisions would be ultra vires the minister if incorporated in a statutory instrument subject to review by the Oireachtas a fortiori they would be in excess of any executive power which he would have to give effect to the legislation or the regulations thereunder.
In these circumstances I would allow the appeal and I agree that an order should be made in the terms set out in the judgment of Keane J.
Cityview Press v. An Chomhairle Oiliuna
[1980] IR 381
O’Higgins C.J.
20th December 1978
The plaintiffs are a firm of printers and its managing director. They seek declarations that ss. 19, 20 and 21 of the Industrial Training Act, 1967, and certain statutory instruments purporting to have been made under the provisions of that Act (S.I. 20 of 1970 and S.I. 305 of 1972) are invalid having regard to the provisions of the Constitution. In the alternative they seek a declaration that these statutory instruments are ultra vires and invalid for not being made in compliance with the provisions of the Act.
The argument based on non-constitutional grounds was taken first and, therefore, I will deal with it now in this judgment. Mr. Conolly, who appeared for the plaintiffs, confined his submissions to one statutory instrument, namely, S.I. No. 305 of 1972, which I shall refer to as the Order of 1972. Statutory instrument No. 20 of 1970, while mentioned in the statement of claim, did not feature in the argument. In relation to the Order of 1972, Mr. Conolly confined his objection and argument to article 5(3)(b). The Order of 1972 purports to have been made by An Chomhairle Oiliuna (hereinafter called AnCO) pursuant to the provisions of s. 21 of the Industrial Training Act, 1967. By article 4 of that Order a levy is imposed (subject as therein) on every “employer,” which levy is to be assessed and paid as is provided in the order. The word “employer” refers to employers in the printing and paper industry.
Article 5(3) of the Order of 1972 provides:
“(3) The levy assessed in respect of an establishment of an employer shall be an amount equal to
(a) in case the employer has made a return of the sum of the emoluments of all persons employed by the employer at or from that establishment in the first base period 1 per cent of the sum remaining after the deduction of £20,000 from the said sum, or
(b) in any other case 1 per cent of the sum remaining after the deduction of £20,000 from the sum estimated by An Chomhairle to be the emoluments of all persons employed by the employer at or from the establishment in the first base period,”
As stated, the Order of 1972 is made under s. 21 of the Act of 1967 which deals with levies. That section authorises3 AnCO to “make an order (in this Act referred to as a levy order) imposing a levy on the employers” in a particular industry. It goes on to create a statutory obligation on the employers to pay such amount “as may be appropriate having regard to the provisions of the levy order.” Section 21, sub-s. 2, gives a right of appeal to”any employer assessed to the levy.” Other provisions of the section are not relevant at this stage. Mr. Conolly submitted that the provisions of this section could only authorise a fixed and definite levy. He contended that such levy must be an amount fixed in some definite way having regard, for example, to profit or turnover. It cannot, he urged, be determined on an estimate because this would be so lacking in clarity and precision as not to be contemplated by the section. In my view, this argument is unacceptable.
Section 21 of the Act of 1967 authorises the imposition of a levy. This undoubtedly has been done in the Order of 1972. It is true that the particular amount to be paid by each employer may differ having regard to the actual and estimated differences in emoluments, but the manner and rate of levy is the same. Further, the section provides that there shall be paid in accordance with the levy order such amount “as may be appropriate having regard to the provisions of the levy order.” It seems to me that the Order of 1972, having fixed the rate of levy in different cases, does no more than provide for the appropriate manner of determining what should be paid. Again, the use of the word “assessed” in sub-s. 2 of s. 21 and the provisions for appeal indicate that some lack of precision and some provision for estimating was contemplated when the section was passed. In my view, the Order of 1972 was made in accordance with the powers conferred on AnCO by the provisions of the Act of 1967. In my view, this appeal should fail on this ground for these reasons.
Henchy J.
I agree with the judgment which has been delivered by the Chief Justice.
Griffin J.
I agree.
Kenny J.
I agree.
Parke J.
I agree.
The judgment delivered by the Chief Justice was divided into two parts of which the first, supra, dealt with those grounds of the plaintiffs’ appeal which did not raise issues under the Constitution. The second part of the judgment, infra, was the judgment of the Court and was delivered in accordance with Article 34, s. 4, sub-s. 5, of the Constitution.
O’Higgins C.J. , delivering the judgment of the Court.
The plaintiffs have also contended that the Oireachtas, in enacting s. 21 of the Industrial Training Act, 1967, was abdicating its proper functions under Article 15, s. 2, of the Constitution and was purporting to confer some of its law-making powers on AnCO. To put it another way, it was submitted that the powers conferred by s. 21 are too wide and go beyond what may be delegated properly by the National Parliament. The defendants do not dispute the general principle that, under the Constitution, the sole and exclusive power of making laws (i.e., enacting laws) for the State is vested in the Oireachtas. They contended, however, that this does not preclude the Oireachtas from giving powers to outside persons or bodies, within prescribed limits, to frame provisions which will have statutory effect. This being the constitutional issue which is raised in this appeal, I now give the judgment of the Court on this issue.
The Act of 1967 is the Act which established AnCO as the body which is concerned with industrial and commercial training. The long title of the Act indicates its purpose and policy which is to provide for this training through AnCO, and to enable AnCO to impose levies for the purpose of financing this training. The impugned s. 21 authorises AnCO to make a levy order. That section operates after a particular industry has been specified by an order made under s. 23 of the Act of 1967 to be “a designated industrial activity” for the purpose of the better training of those employed or intended to be employed therein. Once that has been done, AnCO may make a levy order under s. 21 imposing a levy on the employers in that industry. When such a levy order has been made, sub-s. 1 of s. 21 provides that “there shall be paid in accordance with the levy order to An Chomhairle by each such employer on whom it is imposed a levy of such amount as may be appropriate having regard to the provisions of the levy order.”
The section provides for the purpose of the levy, for the area in which it is to operate, and for the obligation on employers in the designated activity to pay the levy. The only matter which is not determined in the section itself is the amount or the rate of the levy, and these are to be determined by AnCO in relation to each industrial activity according as it is designated under the provisions of section 23. Every levy order so made must be laid before each House of the Oireachtas and is open to annulment in accordance with the provisions of sub-s. 6 of section 21.
The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern State. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body there is no unauthorised delegation of legislative power.
In this instance, in the opinion of the Court, there has not been any unconstitutional delegation of authority. The Act of 1967 contains clear declarations of policies and aims and it establishes machinery for the carrying out of these policies and the achievement of these aims. In particular, the fact that there will be a levy is provided for in s. 21 and the obligation to pay it is laid down. The only matter which is left for determination by AnCO is the manner of calculating this levy in relation to a particular industry. This is doing no more than adding the final detail which brings into operation the general law which is laid down by the section. In addition, the Oireachtas has taken care to provide a manner whereby a levy order made under that section will continue to be under the supervision of either House of the Legislature itself. This is done under the provisions of sub-s. 6 of s. 21 whereby a levy order may be annulled by a resolution of either House of the Oireachtas.
In the opinion of the Court this is a permitted delegation of power to AnCO. Accordingly, the claim that s. 21 of the Act of 1967 is unconstitutional fails.