Limited Legal Pluralism in Irish Administrative Law
This is the second post on Irish administrative law arising from my draft paper for the Oxford Handbook of Irish Politics. Comments welcome!
Counterbalancing the centripetal qualities of Article 34.3.1 and Article 34.3.2, are the centrifugal tendencies of provisions elsewhere in the 1937 Constitution. Article 34.3.4 envisages “Courts of local and limited jurisdiction with a right of appeal as determined by law”, whilst article 37 allows for the vesting of “limited functions and powers of a judicial nature” in non-judicial bodies. The effect of these provisions is that while the High Court plainly has general jurisdiction, inferior courts and statutory bodies will – equally plainly – exercise significant decision-making authority. Indeed, in Ireland as elsewhere in prosperous common-law countries, there is a plethora of statutory bodies, which come in a tremendous variety of shapes and sizes (Morgan, 2008). However, the approach of the Irish courts has meant that the capacity of the Oireachtas to create novel modes of statutory decision-making is somewhat limited.
There is a morass of case law on the meaning of “limited functions and powers of a judicial nature”. Confusion reigns in this difficult area of Irish public law, but the undeniable tendency has been to retain important decision-making functions within the judicial branch.
The test to identify “judicial” power set out by Kenny J in McDonald v Bord na gCon,[i] which remains influential, was “hopelessly circular” because it “provided only a descriptive summary of the everyday workload of the contemporary court” (Carolan, 2008). Reliance on the McDonald test or some variant thereon makes it more difficult to justify the vesting of important decision-making functions in bodies other than courts. Using the tasks of judges as the benchmark for determining when power is “judicial” in nature favours the conclusion that tasks traditionally or historically performed by judges are “judicial” and cannot be performed by other bodies.
As to whether a judicial power is “limited” (and can thus safely be vested in a non-judicial body), the main source of litigation has been professional disciplinary functions. In Re Solicitors Act 1954,[ii] the Supreme Court held that it was unconstitutional to give a regulatory disciplinary committee the authority to strike an individual off the roll of solicitors. Such would be the devastating consequences for the individual solicitor, the imposition of the sanction “would seem to demand from those who impose it the qualities of impartiality, independence and experience which are required for the holder of a judicial office…”[iii] Inflicting a severe penalty was a “judicial” decision and could not be considered to be “limited” in nature. For this reason, the High Court must have a role in the imposition of professional disciplinary sanctions.[iv]
A useful contrast can be drawn here with Australia. There too the Constitution contains a separation of powers, within which there is a recognisably “judicial” function. From the existence of this function many limitations on the permissible scope of legislative and executive action pour forth.[v] But there is also an important limitation on what judges can do. Australian courts cannot exercise non-judicial functions.[vi] In particular, they are prohibited from adjudicating on the “merits” of governmental action (Groves and Lee, 2007). Yet far from paralysing the Australian state into inaction by encumbering the legal system with an unwieldy distinction between judicial and non-judicial power, this limitation on the scope of judicial power prompted the development of the Administrative Appeals Tribunal, an expert administrative appellate body – presided over by a judge – which is expressly empowered to consider the “merits” of governmental action (Cane, 2009). In Australia, a strict requirement of separation of powers drawn from the Constitution has not inhibited the creativity of the legislative branch of government.
Something similar can be said of Canada, where judicial power is constitutionally entrenched by s. 96 of the Constitution Act 1867 (Daly, 2018). When presented with the occasion to opine on the compatibility of administrative tribunals with the entrenchment of judicial power in Labour Relations Board of Saskatchewan v. John East Iron Works,[vii] the position of the judges was unequivocal: the Board’s functions represented a “striking departure from the traditional conception of a court”[viii] and were designed instead to give effect to the “new conception of industrial relations”,[ix] something that could only be achieved by technocrats familiar with the domain and qualified to “bring an experience and knowledge acquired extra-judicially to the solution of their problems”.[x] Accordingly, the “subject-matter” of the Board’s industrial relations jurisdiction was “such as profoundly to distinguish” it from an ordinary court.[xi] Finally, any “alleged judicial function” had to be considered “in relation to its other duties”.[xii] The result was that Canadian legislatures were given a great deal of scope to address “problems of a modern nature requiring governmental intervention of a continuous and specialized character” (Shumiatcher, 1949). Willingness to countenance the taking of important decisions by non-judicial bodies has been conspicuous by its absence from the cases decided by the Irish courts.
Moreover, in determining the procedural requirements that statutory bodies must abide by before reaching decisions, the approach of the Irish courts has tended to stifle legislative and executive creativity. Article 40.3.1 of the Constitution, which obliges the State to “protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen”, has been interpreted to include “a guarantee to the citizen of basic fairness of procedures”.[xiii] This right to “constitutional justice”[xiv] has been given a broad scope, as in Dellway Investments v National Asset Management Agency,[xv] where the transfer of assets from a bank to a state-run ‘bad bank’ for ‘toxic assets’ in the wake of the global financial crisis was held to require fair procedures (Kenny, 2011). Although the right to constitutional justice is to be applied in a context-sensitive manner,[xvi] it is always the courts “that have the last word” and, in particular, statutory tribunals adjudicating on rights and entitlements are “always subject to constitutional justice in its most stringent form” (Hogan, Morgan and Daly, 2010). Statutory bodies may act “informally” but “they may not act in such a way as to imperil a fair hearing or a fair result”.[xvii] In respect of tribunals of inquiry, designed to root out the truth of matters of public importance in an efficient and effective manner, the “undertow of constitutional justice is so strong” as to impose significant – and significantly costly – procedural obligations (Hogan, Morgan and Daly, 2010).
Again, an instructive contrast can be drawn with Canada. There administrative tribunals are “masters in their own house”.[xviii] A particularly interesting paean to procedural flexibility can be found in Quebec’s Act Respecting Administrative Justice, according to which public bodies must apply “simple and flexible rules devoid of formalism, with respect, prudence and promptness”.[xix] Moreover, Canadian courts must defer to statutory bodies’ procedural choices, taking “into account and respect[ing] the choices of procedure made by the agency itself”:[xx] “The determination of the scope and content of a duty to act fairly is circumstance-specific, and may well depend on factors within the expertise and knowledge of the tribunal, including the nature of the statutory scheme and the expectations and practices of the [relevant] constituencies”.[xxi] Indeed, “a degree of deference to an administrator’s procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar”.[xxii] Such thinking is conspicuous by its absence on Irish courts.
More familiar in Ireland is the imposition of court-like procedures on statutory bodies. Consider, for instance, the Irish Financial Services Appeals Tribunal established by the Central Bank and Financial Services Authority of Ireland Act 2003, which hears appeals against certain decisions of the Central Bank of Ireland. Of this body it has been said that it has:
…a strong flavour of court practice and procedure about it: its composition is strongly reminiscent of a court and its method of operation, including the orders it may make and the appeals procedure, have parallels in the manner which the higher courts discharge their functions (Bird, 2003).
It would be wrong to create the impression that the Irish courts have forced the Oireachtas into a straitjacket as far as the creation of statutory bodies is concerned. On the contrary, the Oireachtas has created so many statutory bodies, and so many different appeal routes for the aggrieved, as to defy categorisation. Nonetheless, these bodies are, especially on matters deemed by the courts to be of great importance, subject to stringent judicial oversight, such that their decisions might need in some circumstances to be confirmed by the High Court, or at the very least that their procedures must come close to those followed by courts.
As discussed above, part of the role of the High Court is to ensure that statutory bodies act “in accordance with the law”. Statutory bodies must remain within the boundaries of their jurisdiction, exercising only those powers granted and stay within the limits set out by legislation. Determining when a statutory body has stepped outside its jurisdiction is a task fraught with theoretical and epistemic difficulties: lawyers have for eons debated – generally fruitlessly – ‘what is jurisdiction?’ and ‘when has a jurisdictional error been committed?’ (Daly, 2012)
In discussing the Irish position, one needs to proceed with especial caution, because the law is “in an unsatisfactory, uneven and dated condition” (O’Reilly, 2012). The Supreme Court has entertained the possibility that some misinterpretations of the law by statutory bodies cannot be corrected by the High Court.[xxiii] It is more common, however, to find support in decisions by Irish courts for the proposition that statutory bodies are liable to correction by the High Court when they commit errors of law.[xxiv]
Indeed, in the area of statutory appeals, the Irish courts have very strongly taken the view that “[t]he question of construction is exclusively a matter for the judge”.[xxv] This is significant because in appeals originating from decisions of statutory bodies with great expertise in areas of economic regulation the Irish courts have recognised that they “should be slow to interfere with the decisions of expert administrative tribunals”.[xxvi] Whatever ‘curial deference’[xxvii] Irish courts are inclined to grant when hearing appeals from decisions of statutory bodies does not extend to questions of law.
This chimes, to some extent, with the approach that has been taken by the English courts over the last 50 years. In England, the conventional wisdom is that the implication of the decision of the House of Lords in Anisminic v Foreign Compensation Commission[xxviii] is that the High Court could be asked step in to correct any error of law committed by a statutory body: “bodies other than courts…are required to apply the law correctly”; should they fail to do so “judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law”.[xxix] There are very limited exceptions to this rule (Daly, 2011).
In more recent years, however, the English courts have rowed back slightly, preferring to rely on pragmatic considerations, rather than on the expansive Anisminic principle, to limit the control the High Court exercises over statutory bodies, much to the frustration of traditionalists (Forsyth, 2016). A particularly significant development has been the emergence of scepticism about the analytical distinction between questions of law and questions of fact. Much turns on this distinction, because if “law” and “fact” cannot be kept apart, it will be not possible to define with confidence those situations in which errors of “law” by statutory bodies justify the intervention of the High Court. Yet, in a provocative intervention, Lord Carnwath suggested that the distinction is chimerical: “the division between law and fact in such classification cases is not purely objective, but must take account of factors of ‘expediency’ or ‘policy’”, including “the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other”.[xxx] The Irish courts have never entertained the idea that “the relative competencies” of judges and non-judges have a role to play in determining when the High Court should intervene to correct errors of law. Indeed, they have instead hard wired a distinction between jurisdiction and merits (between law and policy/fact) into Article 34.3.1 of the 1937 Constitution. Rather than relying on the expansive language of that provision to jettison the traditionalist distinction, the Irish courts have embraced it.
North American courts have gone even further than Lord Carnwath, seeing resolution of statutory ambiguity or vagueness as a matter of policy, not as a matter of interpretation (Lewans, 2016). Where there is more than one permissible interpretation of a statutory provision, it is for the statutory decision-maker to choose the interpretation that would best further its policy objectives. Once questions of law are perceived as policy questions, it is natural that their resolution should reside with politically accountable branches of government, not with unelected judges;[xxxi] judges police the outer limits of the powers of statutory bodies, ensuring respect for fundamental legal values, but allowing statutory bodies significant latitude in determining the content of the law (Dyzenhaus, 1997). This line of thinking would, in all likelihood, be anathema to Irish judges and, at the very least, in tension with the settled understanding in Ireland that the role of the High Court is to ensure that statutory bodies conduct themselves “in accordance with the law”.
In this area, the centralising force of Article 34.3.1 is underpinned by what has been described as a “necessary inference” that individuals must be able to access the High Court in order to challenge allegedly unlawful government action:[xxxii] “In the final analysis, of course, no statute can preclude [the High Court] from addressing the lawfulness of a decision when made”.[xxxiii] Accordingly, any legislative attempt to wall off areas of governmental activity from the oversight of the High Court is of extremely dubious constitutional validity (Hogan, 1986). The Irish courts will narrowly interpret any legislative provisions that attempt to limit judicial control of statutory bodies.[xxxiv] The result is that the ability of statutory bodies staffed by experts to develop their own understandings of their parent statutes – often highly technical and shot through with ambiguous or vague statutory language – is extremely limited.
[i]  IR 217.
[ii]  IR 239.
[iii]  IR 239, at p. 275.
[iv] M v Medical Council  IR 485, at pp. 498-499. See also K v An Bord Altranais  2 IR 396; Health and Social Care Professionals Act 2005, ss. 69-70; Veterinary Practice Act 2005, s. 80. Contrast Keady v Commissioner of An Garda Siochána  2 IR 197.
[v] See e.g. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[vi] R v Kirby; Ex parte Boilermakers‘ Society of Australia (1956) 94 CLR 254.
[vii]  AC 134 (PC).
[viii] Ibid at 149.
[ix] Ibid at 150.
[x] Ibid at 151.
[xiii] Re Haughey  IR 217, 263, per Ó Dálaigh CJ.
[xiv] McDonald v Bord na gCon  IR 217, 242, per Walsh J.
[xv]  4 IR 1.
[xvi] See e.g. Flanagan v University College Dublin  IR 724; International Vessels Ltd v Minister for Marine (No. 2)  2 IR 93; Gallagher v Revenue Commissioners (No. 2)  1 IR 55.
[xvii] Kiely v Minister for Social Welfare  IR 267, at p. 281.
[xviii] Prassad v Canada (Minister of Employment and Immigration)  1 SCR 560, at pp. 568-569, per Sopinka J.
[xix] CQLR c J-3, s 4(1).
[xx] Baker v. Canada (Minister of Citizenship and Immigration),  2 SCR 817 at para. 27, L’Heureux-Dubé J.
[xxi] Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para 231,  1 SCR 650, Abella J. [VIA Rail].
[xxii] Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 at para 42,  2 FCR. 170, Evans JA.
[xxiii] State (Abenglen Properties Ltd) v Dublin Corporation  IR 381 at p. 400.
[xxiv] See e.g. State (Holland) v Kennedy  IR 193; Killeen v Director of Public Prosecutions  1 ILRM 1; Royal Dublin Society v Revenue Commissioners  1 IR 270.
[xxv] Murray v Pensions Ombudsman  IEHC 27;  2 I.L.R.M. 196 at 207 per Kelly J. See also The Revenue Commissioners v O’Flynn Construction Company Ltd  IESC 47;  3 I.R. 533 at 562.
[xxvi] Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare  1 I.R. 34 at 36–37.
[xxvii] M&J Gleeson v Competition Authority  1 I.L.R.M. 401.
[xxviii]  2 AC 147.
[xxix] R v Hull University Visitor, ex p Page  AC 682 at 693.
[xxx] Jones (Caldwell) v First Tier Tribunal  2 AC 48, at para. 46.
[xxxi] See e.g. Chevron v Natural Resources Defense Council (1984) 467 US 837, at pp. 865-867; McLean v. British Columbia (Securities Commission)  3 SCR 895, at paras. 39-41.
[xxxii] Macauley v Minister for Posts and Telegraphs  IR 345, at p. 358, per Kenny J. See e.g. Dunmanus Bay Mussels Ltd v Aquaculture Licences Appeals Board  1 IR 403.
[xxxiii] Satke v An Bord Pleanála  IEHC 230, per Hanna J.
[xxxiv] Kinghan v Minister for Social Welfare, Unreported, High Court, November 25, 1985.
This content has been updated on April 18, 2018 at 10:30.