Administrative Authorities and the Disapplication of Domestic Law: Minister for Justice and Equality v Workplace Relations Commission C-378/17

Can a statutory tribunal disapply the law? The question arises in respect of constitutional challenges to legislation and, in the European Union, in respect of claims that domestic law contravenes norms of E.U. law. The recent decision of the Court of Justice in Minister for Justice and Equality v Workplace Relations Commission C-378/17 on a preliminary reference from the Irish Supreme Court is especially notable for the radical change it requires to Ireland’s constitutional arrangements.

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…” The term “any law” has been construed as meaning only laws enacted by the Oireachtas since the adoption of the 1937 Constitution (The State (Sheerin) v Kennedy [1966] IR 379). 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 [2003] 1 IR 606 the Supreme Court considered whether the inferior courts could entertain a challenge to the constitutional validity of pre-1937 legislation. The response is worth quoting at length because it sets out the traditional Irish position with respect to the power of inferior courts and statutory bodies to disapply domestic law:

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.

The Supreme Court rejected 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…” which they were undoubtedly competent to adjudicate (Director of Public Prosecutions (Stratford) v O’Neill [1998] 2 IR 383, at p. 390, per Smyth J.)

This firm position no longer holds in respect of E.U. law. In proceedings arising out of a complaint that the maximum recruitment age for members of An Garda Síochána contravenes E.U. law the question arose whether a statutory tribunal could disapply Irish legislation. In the Supreme Court, Clarke J. noted that, as a matter of national law, there is nothing “even remotely resembling an express jurisdiction conferred on the Tribunal to set aside or disapply general measures of secondary legislation” (Minister for Justice, Equality and Law Reform v Workplace Relations Commission [2017] IESC 43 at para. 5.11). Recognising the need for a mechanism to vindicate E.U. law rights in domestic law, Clarke J. posited that the appropriate solution was to enlarge the scope of the High Court’s powers to intervene in matters typically within the jurisdiction of a statutory tribunal:

…as a matter of fundamental Irish constitutional law, the proper interpretation of the jurisdiction of the Tribunal, on the one hand, and the High Court, on the other, is that the Tribunal does not have jurisdiction to deal with cases involving the disapplication of national legislation but the High Court, having that jurisdiction, also has an entitlement to implement, in the course of considering a case brought in which it is contended that there is a breach of Union employment equality rights which might require the disapplication of a measure of national legislation, a full power to provide for any remedy which would be available under the Employment Equality Acts. While this latter position would not normally pertain in the context of a purely domestic legal situation, it is necessitated by the requirement to ensure that Union law rights are vindicated and represents the appropriate national solution to the problem caused by the Tribunal not having a jurisdiction to disapply legislation (at para. 5.15).

Based on an extensive analysis of procedural and substantive Irish law, Clarke J. was satisfied that requiring issues of compatibility of Irish law with E.U. law norms to be addressed to the High Court would not make it “excessively difficult” for individuals to vindicate E.U. law rights (at para. 7.15).

This ‘Irish solution to an Irish problem’ did not, however, commend itself to the Court of Justice (to which Clarke J. made a preliminary reference under art.267 TFEU). In its judgment, the Court of Justice made clear that, notwithstanding any contrary rule of domestic constitutional law, Irish public bodies are required to disapply laws that are inconsistent with norms of E.U. law:

[A]ny provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of EU law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to disregard national legislative provisions which might prevent directly applicable EU rules from having full force and effect are incompatible with the requirements which are the very essence of EU law (C‑378/17 at para. 36).

This “duty to disapply national legislation that is contrary to EU law is owed not only by national courts, but also by all organs of the State — including administrative authorities — called upon, within the exercise of their respective powers, to apply EU law” (at para. 38, emphasis added). This case concerned the Workplace Relations Commission in its application of equality legislation but its rationale would cover any public body responsible for applying E.U. law.* Cue, perhaps, brave barristers in Skibbereen District Court politely asking for national laws implementing E.U. fisheries legislation to be disapplied. Any such disapplication would, presumably, not have erga omnes effect but would nonetheless have the effect of vindicating individual rights conferred by E.U. law norms albeit at the risk of creating divergence between different statutory tribunals and inferior courts (whose members may take different views of the content of E.U. law).

*Note (with thanks to Aisling Donohue) that the Tax Appeals Commissioners have made references to the Court of Justice in the past without the Revenue Commissioners taking exception to this practice. See e.g. National Roads Authority v Revenue Commissioners C-344/15.

This content has been updated on December 28, 2018 at 15:45.