I could not expect the committee to be familiar with it. In any event, I could not necessarily expect that members of the committee would have an interest in it as it is fairly densely legal in places and I do not propose to bring them through any of it. However, it is perhaps no harm that the committee would have access to it by way of background information.
I will take a step back and explain why the High Court reached the decision it reached last summer and the logic of that decision, which places the context of the Bill in a legal sense that may not be as clear as it ought to have been to the committee. Article 15.2.1° of the Constitution states, in essence, that the business of making law is the business of the Oireachtas and it forbids bodies other than the Oireachtas from making law. There has always been a difficult line to identify between a legitimate delegation, whether it be to a Minister or other inferior body. As a matter of law, a Minister is an inferior person to the Oireachtas passing legislation by way of primary Act of the Oireachtas. In any case, there has always been a difficulty in identifying the legitimate line at which delegation can occur.
As a matter of constitutional doctrine, this is often described as the non-delegation doctrine or the rule in the Cityview Press decision. To use the buzzword, the principles and policies of the legislation must be sufficiently clear from the Act of the Oireachtas. Therefore, one can delegate the ability to join the dots, fill in the blanks or add the details but the governing principles and policies must be clear from the parent statute. That has been constitutional doctrine that is settled since the Supreme Court decision in the Cityview Press case in 1980.
As a matter of constitutional history, it is in an inheritance from the United States, in particular from two decisions of the United States Supreme Court in the 1930s during the Roosevelt New Deal era, when the Roosevelt Democratic Administration was in significant conflict with the US Supreme Court, which was a more conservative, Republican Supreme Court. Two pieces of New Deal legislation in the 1930s were struck down on this basis. That constitutional doctrine was incorporated into Irish law in 1980 by the Cityview Press decision but until the John Grace decision last summer, only one Act had ever actually been struck down as being unconstitutional on the basis that it constituted an excessive and unlawful delegation of powers. Therefore, it is fair to say the doctrine had been referred to in many cases but only one Act had actually come a cropper on account of a breach of Article 15.2.1°.
The first point one could make about the John Grace decision is that it is a statistically unusual decision in that it is only the second occasion that legislation has been held unconstitutional on this basis. When or if the committee members read the decision of Mr. Justice Feeney in the case, they will find it does not purport to be a decision identifying any radically new principle but purports to be a decision that simply implements existing law and applies it to the Act in question. In short, he finds that the JLC-Labour Court system, which allowed for minimum pay rates in certain sectors to be implemented by orders of the Labour Court and criminalised breaches by employers of the requirement to pay their employees those minimum rates without any reference to principles and policies contained in the parent Act, was quite simply unconstitutional. There was nothing in the Industrial Relations Act 1946 or the Industrial Relations Act 1990 from which one could have divined any particular basis upon which the Oireachtas had determined that this should happen. In essence, the JLCs and the Labour Court were being given unsupervised freedom to do what they wanted in this area. That is what the High Court decided last summer was ultimately not a delegation of power but a transfer of power, and this was void and unconstitutional under Article 15.2.1°.
The consequence of this is that the old system, whereby the Oireachtas basically had specified nothing from which one could have divined any oversight of the JLC-Labour Court system, had to be reformed. I am conscious, having looked into the matter, that two Deputies in particular moved very quickly last July and published Private Members' Bills in an attempt to remediate this topic - Deputy Tóibín is one of the two and Deputy O'Dea, who is not present, is the other. I have seen both Bills. While I do not say this in any pejorative sense, the Government then moved in December 2011 with more comprehensive, lengthier and more detailed legislation, though, to be fair, it took it six months longer to get out of the blocks and produce it. That Bill, the Industrial Relations (Amendment) (No. 3) Bill 2011, is now, as I understand it, on Committee Stage and is being considered. It proposes to remediate the gap left at a legislative and constitutional level. Even a cursory glance shows that the Bill has been at pains to identify, or least try to identify, the principles and policies according to which the JLCs might purport to set rates and the Labour Court might approve those decisions, in that those principles and policies are set out.
There are a few reflections on the current Bill. The first point is that from the perspective of an individual restaurant owner such as Mr. Grace coming to this area, looking at the new Bill and considering that it will still permit of a structure whereby JLCs and the Labour Court will set minimum rates, the Bill in fact does not cure that fundamental problem in that setting rates is something that will still be outside the Oireachtas. However, the answer for an objecting restaurant owner on the basis of the new Bill will be that there is significant detail in that new Bill, albeit it is an open-ended formula in terms of its ultimate content, that is at least supposed to guide the JLCs and the Labour Court in how they come about matters.
Of course, there are legislative changes. For example, there is a new, straightforward enforcement mechanism to secure compliance with registered employment agreements, EROs, whereby one can go to the Circuit Court and get an order compelling somebody to comply with it in the first instance, as distinct from moving straight to criminal prosecution. Moreover, there are provisions, as under the National Minimum Wage Act, where people can seek an exemption for a period of up to two years. There are also provisions in the new Bill which prohibit future EROs from including the Sunday premium, which I know is a matter of controversy and was agitating the trade union representatives who addressed the committee before me.
At a constitutional level, it is not possible for me to offer a view on all of these provisions, and the debate on the merits of these may ultimately be more political than legal in tone. However, on any fair analysis, one could say the Government Bill seeks to address the legal deficiencies in the prior Industrial Relations Acts machinery and, no doubt, the Government has already been advised by the Office of the Attorney General that the safeguards in the new Bill should be sufficient to pass constitutional muster. In the final analysis, the JLC system will continue to have the power, if the Government Bill is in due course enacted, to set minimum rates of pay for various sectors above and beyond those provided for under the rubric of the National Minimum Wage Act. Whether that is a good thing or a bad thing is ultimately a question of political perspective rather than legal doctrine.
I am here to be of any assistance I can be to the committee. I have produced a paper that is denser and contains some legal background. If one took a step back from the issue of EROs and JLCs and looked at the overall question of legislation, the most interesting aspect of Article 15.2.1° of the Constitution, which insists that the principles and policies of legislation be identified in the parent statute, is how our Constitution interplays with our membership of the European Union. As the committee will be well aware, at this stage the vast bulk of our legislation, whether it be by way of primary Act of the Oireachtas or by way of delegated legislation through ministerial orders is driven by our membership of the European Union to implement, in particular, directives, and sometimes also regulations into Irish law. There is a provision that is very important in understanding Article 15.2.1°, which is Article 29.4.10° of the Constitution which provides a blanket immunity for any measures that are implemented into Irish law that are necessitated by virtue of our membership of the European Union. If a directive is introduced that we have to bring into national law, that is immunised from scrutiny if the content of the national law, whether it be by way of statutory instrument or by way of an Act of the Oireachtas, is necessitated by our membership of the European Union. In another context the debate about principles and policies falls by the wayside if one can identify the fact that the content of the legislation is ultimately compelled by our membership of the European Union because that creates an exemption under Article 29.4.10°.
When one is speaking in general about the passage of legislation that is a very important consideration, but in this case Mr. Justice Feeney's decision last summer, in summary, was as a matter of constitutional doctrine, an orthodox decision. In fact - I might conclude my initial remarks on this point - it had been heralded some 31 years previously by one of our greatest ever judges, Mr. Justice Henchy, who for a long time was a Supreme Court judge and was regarded as a great constitutional lawyer. He had held, in a decision to which I referred in my paper, called Burke and the Labour Court, that the system whereby JLCs and the Labour Court would set minimum rates of pay was a system of doubtful constitutional validity. The question of the actual constitutionality of the legislation was not before him in Burke in 1980 but when one looks at his remarks in Burke, and when one looks at the reliance that Mr. Justice Feeney placed in the John Grace Fried Chicken case upon those remarks, it is very clear that the judgement of 31 years ago was a pathfinder judgment for the High Court last summer. In many ways the legislation had probably been doomed to extinction for a long period and it was really only benefitting from a stay of execution as long as it took for someone to bring a full-frontal constitutional challenge to its validity.