This thread tries to explain the recent, controversial High Court judgment which ruled, as unconstitutional, legislation which allowed for the regulation of wages in specific economic sectors - Náisiúnta Leictreach Contraitheoir Eireann v. the Labour Court https://beta.courts.ie/view/judgments/22265e8d-1c0f-42df-b040-e6c7bc338281/4b0bf933-ed14-4fab-944e-e410f6c9c9e5/2020_IEHC_303.pdf/pdf

the contested legislation (Industrial Relations (Amendment) Act, 2015) allows the Minister for Enterprise - on the recommendation of the Labour Court - to make a Sectoral Employment Order (SEO), setting a minimum pay for a specific economic sector (in this case, electricians)

this case concerned a challenge by employers against the validity of this particular order made regarding
electricians. They challenged the procedure used by the Labour court &minister, but also the constitutionality of the legislation itself. I'll focus here only on the latter

why was this legislation allegedly unconstitutional? Article 15.2 of the Constitution says the Oireachtas is the 'sole and exclusive' legislature for the state, and this has been read as meaning the Oireachtas cannot alienate this power to anyone else, including ministers....

... However, it can delegate some legislative power to 'subordinate' legislatures (especially ministers) - albeit only where the subordinate is given power to legislate on matters of detail, where the 'principles and policies' of the law are set out in the original ('parent' Act.

Therefore, delegated or secondary legislation is very commonplace & a normal part of modern administration, where ministers in particular are given the power to make secondary legislation based on delegation from Oireachtas. The question for the Courts is where to draw the line..

Thing is, the case law is a little unclear. In general, the parent legislation must set down the 'principles and policies' of the law, and allow the subordinate to decide only the detail. But what 'principles and policies' means is unclear.

In general, Courts have taken a lenient approach. All that's required is that the Oireachtas does not 'abdicate' legislative policy in a given field to a minister or a subordinate, but otherwise can grant the subordinate considerable discretion to achieve a given legislative goal

Yet it's been unclear, in different cases, whether this means a) the parent legislation must simply set out a goal the subordinate must pursue or b) whether it must constrain the subordinate's exercise of power with reference to specific criteria.

Now, let's come back to the Industrial Relations (Amendment) Act 2015. It delegates a legislative power to the Minister/Labour Court, but does it abdicate questions of legislative policy? ...

The Labour court, in exercising this function, is directed to take into account the promotion of 'harmonious [industrial] relations' & the goal of ensuring 'fair and sustainable rates of remuneration'. However, ,Simons J, in the ruling, says this is too vague.

specifically, he says 'the statutory language used is too imprecise to provide any meaningful guidance to the Labour Court.' Therefore, he says, the Oireachtas has delegated too much power to a subordinate body.

This might seem reasonable on the surface, but to my mind it is strangely out of kilter with previous case law. In a recent landmark case - Bederev (2015), the Supreme Court upheld legislation which delegated to the Govt the power to ban drugs, based on extremely vague criteria

the court of appeal had ruled there were no criteria in the parent Act to constrain the govt in making these orders. However, the Supreme Court said the Act's long title referred to 'dangerous' and 'harmful 'drugs, meaning the aims and policies of the legislation were evident

what this means, in effect, is that all that's required, constitutionally, is that the Oireachtas sets out legislative 'aims' which a subordinate is given discretion to pursue via delegated legislation. Which is why this judgment is so puzzling to me.

What lies behind this? The crux of it lies in para. 140 of the judgment. Simons J seems particularly concerned by the fact that these pay orders limit or distort wage competition, & he says that if the Oireachtas intended to allow this, it should have specifically said so.

He says, specifically: 'If the Oireachtas were to take the view that the objective of ensuring better [pay] for [workers] is to be prioritised over any potential impact on competition ... this should be provided for under the parent legislation itself'.

In light of existing case law, I find this part of the judgment astonishing. Firstly, the Oireachtas merely has to establish principles in the sense of 'goals' or 'policies', not specific discretionary choices ... but more importantly ...

... the Oireachtas has already legislated to allow the Minister/Labour Court to intervene to set 'fair' remuneration. This *already implies* the Oireachtas has determined that wage competition can be qualified or overridden by a state determination.

In short then, the judgment imposes quite a novel duty on the Oireachtas to mandate specific legislative choices for a subordinate legislature, and not just the duty to establish the principles and aims of legislation in broad terms, as previous case law establishes.

more worryingly, this makes it difficult to envisage how this kind of industrial relations model - based on collective bargaining/mediation/adjudication - might be legislated for at all.

& behind it all, there lies a barely articulated emphasis on the priority & weight of a liberal idea of wage competition there is a presumption these cannot be qualified without exceptional parliamentary authorisation, and imposing a legislative form that's hard to satisfy

In one way, I am loathe to analyse this primarily in legal-doctrinal ways, given the many other different ways in which it might be framed. But for me, it is difficult to justify from within the existing, admittedly incoherent body of case law, and I hope it will be overturned.