Centralising Tendencies in Irish Administrative Law
This is the first in a series of three posts on Irish administrative law, taken from a paper prepared for the Oxford Handbook on Irish Politics. Comments very welcome!
My focus in will be on the constraints of public law. My touchstone is drawn from Harry Arthurs’ groundbreaking historical work on “legal centralism” and “legal pluralism” (Arthurs, 1985). Briefly and simply put, a legal system can be more or less centralised or, alternatively, pluralist in its approach to public law. A system with a high degree of legal centralism will tend to centralise the articulation of public law norms of legality, rationality and fairness in the judiciary and incentivise the creation of decision-making institutions that resemble courts. By contrast, in a system characterised by a high degree of legal pluralism, the authority to articulate public law norms will be diffused across a range of bodies (perhaps even including private bodies) and courts will be more relaxed about the existence of decision-making institutions that do not follow judicial modes of dispute resolution. These features of legal pluralism – with their respective focuses on the articulation of norms and the structure of statutory bodies – can appropriately be labelled “interpretive pluralism” and “institutional pluralism” (Daly, 2018). Both are conspicuous by their absence from the Irish legal system.
I will observe that Irish public law is highly centralised, with control of legal interpretation firmly vested in the judicial branch and, more particularly, in the High Court (with, of course, onward appeals to the Court of Appeal, the Court of Criminal Appeal and the Supreme Court). There is relatively little legal pluralism. This observation will be confirmed by contrasting the approach the Irish courts have taken to the decision of public law issues with the approaches taken in other jurisdictions, such as England and Wales, Canada, Australia and the United States – Ireland shares a common law heritage with these jurisdictions and some of them, moreover, have written constitutions not dissimilar from the 1937 Constitution.
Article 34.3.1 of the 1937 Constitution vests in the High Court “full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal”. This formulation has been interpreted as transferring to the High Court the “inherent supervisory jurisdiction over inferior tribunals”[i] of the English superior courts, a general superintending authority over all legal and natural persons, including public bodies:
…if there has been…a devolution [of decision-making power] on an exclusive basis, the High Court will not hear and determine the matter or question, but its full jurisdiction is there to be invoked – in proceedings such as habeas corpus, certiorari, prohibition, mandamus, quo warranto, injunction or a declaratory action – so as to ensure that the hearing and determination will be in accordance with law.[ii]
Two aspects of this passage are important for present purposes. First, the interpretation of Article 34.3.1 cleaves closely to settled understandings of the role of the High Court, largely shared in common-law jurisdictions such as Ireland, England and Wales, Canada and Australia. The jurisdiction is “supervisory” and involves the use of the “prerogative writs” – certiorari, mandamus et el – to ensure that statutory bodies respect legal limits on their powers; these were, historically, the devices used by common law courts to control the legality of the actions of inferior courts and, by a slow process of incremental extension, of statutory bodies (De Smith, 1959). But the supervisory jurisdiction stops short at the point at which the High Court would substitute its view of the merits for that of the statutory body under review: on the tradition common law view, substitution of judgment on the merits by the High Court is strictly forbidden. An alternative approach was very much open to the Irish courts: the reference to “all matters and questions whether of law or fact” could plausibly have been invoked to justify judicial control of the merits of the decisions taken by statutory bodies, over and above the traditional sober second look of the prerogative writs.
Second, the role of the High Court is “to ensure that the hearing and determination will be in accordance with law”. On this interpretation, compliance with public law norms of legality, rationality and procedural fairness fall within the purview of the High Court. Whatever a statutory body happens to say, in the course of a hearing and determination, about the content of legal norms is subject to correction by the High Court. The upshot is that Article 34.3.1 – as interpreted – exerts a powerful centralising force in the Irish legal system, vesting authority over legal matters in the High Court.
Questions as to the compatibility of legislation with the Irish Constitution can be answered only by the High Court. Article 34.3.2 provides that the High Court has the authority to answer “the question of the [constitutional] validity of any law…” and, moreover, that any such question may not be raised at all “in any court…other than the High Court or the Supreme Court”. The term “any law” has been construed as meaning only laws enacted by the Oireachtas since the adoption of the 1937 Constitution.[iii] Accordingly, Ireland’s inferior courts – the District Court and Circuit Court – are not able to question the constitutional validity of legislation.
However, “any law” does not include statutes enacted prior to 1937. In The People (Director of Public Prosecutions) v MS,[iv] the Supreme Court considered whether the inferior courts could entertain a challenge to the constitutional validity of pre-1937 legislation. The response – worth quoting at length because it reveals significant information about the mindset of Irish judges – was emphatically in the negative:
The Constitution, as the fundamental law of the State, has a universal character and adjudications by courts of competent jurisdiction as to the legal efficacy of primary or secondary legislation, or rules of the common law, having regard to the provisions of the Constitution, are binding in their effect on all three organs of the State, not merely in the instant case, but in all cases to which the laws in question have application. To hold that District and Circuit Courts throughout the length and breadth of the State are entitled to adjudicate on those issues in any case where they arise, leading potentially to a multiplicity of conflicting decisions and serious uncertainty as to the state of the law, would be to attach wholly excessive weight to the undeniable fact that such issues are not expressly excluded from the jurisdiction of those courts.[v]
The Supreme Court rejected[vi] even the more modest proposition that, as judges of the District and Circuit Courts are bound by the precepts of the Constitution, they would be able to ‘disapply’ unconstitutional pre-1937 legislation where “the constitutional question arose incidentally in the course of ordinary proceedings…”[vii] which they were undoubtedly competent to adjudicate.
To a large extent, the approach the Irish courts have taken is dictated by the terms of the Constitution mentioned above. Yet the decision of the Supreme Court in MS reveals a desire to centralise matters of constitutional interpretation in the High Court. The traditionalism of the Irish approach can be best appreciated by contrasting it with the approach taken by the Canadian courts. In Canada, statutory bodies are entitled to adjudicate on constitutional questions in the circumstances set down in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur[viii] and Paul v. British Columbia (Forest Appeals Commission).[ix]
Those decisions of the Supreme Court of Canada addressed the authority of statutory bodies to assess the constitutional validity of legislation against constitutional norms. Any statutory body with the authority to decide questions of law has also the authority to assess the constitutional validity of legislation. Notably, this test is satisfied whether the authority to decide questions of law is explicit or implicit, which is the case with almost all statutory bodies. The Supreme Court of Canada located the justification for permitting statutory bodies to answer questions of constitutional validity in the “supremacy clause” of the Constitution Act, 1982, s. 52(1) of which provides that the Constitution is the “supreme law” of Canada, such that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. It follows, as one judge explained, that statutory bodies must be entitled to determine if the laws they are required to apply have “force and effect”:
The [Canadian] Charter [of Rights and Freedoms] is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law‑makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.[x]
The contrast with the sentiments expressed by the Irish Supreme Court in MS could not be starker: where the Irish judges saw potential for chaos, their Canadian counterparts saw potential for careful collaboration between courts and statutory bodies. Subsequent developments have measurably increased the gulf between the Canadian and Irish approaches. In contemporary Canada, statutory bodies can grant constitutional remedies for breaches of the Charter,[xi] can satisfy the Crown’s duty to consult with Aboriginal peoples,[xii] and balance legislative objectives against individuals’ constitutional rights,[xiii] with the result that the articulation of constitutional norms is diffused amongst a range of statutory bodies. Power to interpret the Constitution is not centralised in the courts.
[i] Farrell v Attorney General  1 ILRM 364, at p. 377, per Keane J.
[ii] Tormey v Attorney General  IR 289, at p. 297, per Henchy J.
[iii] The State (Sheerin) v Kennedy  IR 379.
[iv]  1 IR 606.
[v]  1 IR 606 at p. 617, per Keane CJ.
[vi]  1 IR 606 at p. 618, per Keane CJ.
[vii] Director of Public Prosecutions (Stratford) v O’Neill  2 IR 383, at p. 390, per Smyth J.
[viii]  2 SCR 504.
[ix]  2 SCR 585.
[x] Cooper v Canada (Human Rights Commission)  3 SCR 854, at para. 70, cited with approval in Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur  2 SCR 504, at para. 29.
[xi] R v Conway  1 SCR 765.
[xii] Chippewas of the Thames First Nation v. Enbridge Pipelines Inc  1 SCR 1099.
[xiii] Doré v Barreau du Quebec  1 SCR 395.
This content has been updated on April 17, 2018 at 16:13.