Brid Smith comments on High Court Judge

Podge_irl wrote: »

I do want to get into that last bit

Ok, but it's going to be very longwinded and tedious, and is now straying from politics to Legal Discussion; so apologies to anyone reading this, if there's anyone left.

He has ruled it as unconstitutional because the primary legislation does not provide sufficient clarity to pass secondary legislation.

It does.

The judgment says that the statutory language is too imprecise, despite the guidelines given at s.16(4) and elsewhere in the primary legislation where it lists five very specific guiding principles of Government policy, laid down by the Oireachtas.

It was clearly the intention of the Oireachtas in s.16(4) that, although sometimes these principles might come into conflict, this conflict is to be settled by way of an harmonious accord as between the employers and the employees within the sector so as to

The Labour Court would be acting beyond its powers if it were to permit an acrimonious and/ or unsustainable obligation on parties to which they did not consent. It is clearly the policy of the Oireachtas, therefore, to recognise that market forces (as between employers and employees) will determine the outcome of deliberations.

These market forces are a crucial safeguard, yet this safeguard does not involve the abdication of responsibility by the Minister, since it is she who must then review the recommendation of the Labour Court with respect to the detailed Chapter 3 requirements.

In Part 3 of the Judgment, the Court says that the vagueness attached to the above is so vague as to render judicial review impossible. What he somehow forgets, is that he has just completed a successful judicial review of the process earlier in his judgment, finding against the Applicants. If it were impossible to judicially review the Application, he ought never have proceeded with Parts 1 and 2 of the Judgment, the Judicial Review.

This is a minor point, but the language that is objected to, such as "fair and sustainable" and "substantial" is described as hopelessly vague. Yet, these are exactly the kinds of terms that are used throughout primary and secondary legislation and crucially, which the courts themselves encounter, and pass judgement on, in perhaps the majority of cases. Nevertheless, some of the statutory provisions mentioned above give the necessary context to such language.

It would be impossible for any secondary legislation to meaningfully curtail the deliberations of the Labour Court without this -somewhat loose- terminology. The alternative would be, for example, to set specific and quantifiable limits on pay adjustments in secondary legislation, which for obvious reasons is impossible in the context of the far-reaching work of the Labour Court in making its recommendations.



The reason I didn't want to get into that long and probably pointless essay, is because I think it's moot anyway. The judge had no business in straying into the constitutionality of the legislation to begin with. He didn't have grounds to drag the presumption of constutionality into his court once he had finished with the Judicial Review -- a Review he now claims is constitionally impossible. Very strange logic.