Supreme Court holds Equality Tribunal lacks jurisdiction to disapply secondary legislation on age discrimination grounds.

THE SUPREME COURT

[Appeal Nos: 221/2009 and

225/2009]

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

O’Malley J.

Between/

Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochána

Applicants/Respondents

and

The Workplace Relations Commission

Respondent/Appellant

and

Ronald Boyle, Gerard Cotter and Brian Fitzpatrick

Notice Parties

Judgment of Mr. Justice Clarke delivered on the 15th June, 2017.

1. Introduction

1.1 The underlying question which gives rise to these proceedings concerns an allegation that a maximum recruitment age for

members of An Garda Síochána amounts to unlawful discrimination on the grounds of age. In that context complaints were brought by

the notice parties before the Equality Tribunal (“the Tribunal”). While it will be necessary to describe what happened in relation to

those complaints with greater precision in due course it is fair to say that ultimately an issue arose between the

applicants/respondents (whom I will refer to collectively as “the Minister” unless the context otherwise requires) and the Tribunal as

to whether the Tribunal had any jurisdiction to entertain the complaints.

1.2 The reason for the asserted lack of jurisdiction stemmed from the fact that the relevant maximum recruitment age was provided

for in secondary legislation being the Garda Síochána (Admissions and Appointments) (Amendment) Regulations, 2014 (S.I. No. 749 of

2004) (“the Regulations”). It followed that the maximum recruitment age was determined by substantive law rather than by any

administrative decision of the Minister or, indeed, the second named applicant/respondent, the Commissioner of An Garda Síochána.

The Minister’s argument was that the Tribunal did not have jurisdiction to set aside or disapply substantive law and that the Tribunal

did not, therefore, have jurisdiction to embark on an inquiry into whether the relevant maximum recruitment age amounted to unlawful

discrimination. In substance the Minister suggested that it was only the High Court, exercising its judicial review function, which could

disapply legislation on the grounds that it breached employment equality law and, in particular, European Union employment equality

law.

1.3 It would be fair to say that the Tribunal acknowledged that there might be an issue in that regard but determined that it would go

ahead with its inquiries on the basis that it would, as part of that process, amongst other things, decide whether it had jurisdiction to

make any determinations at all.

1.4 The Minister ultimately took the view that the Tribunal had exceeded its jurisdiction in so doing and brought judicial review

proceedings before the High Court. That court decided that the Tribunal did not have a jurisdiction to disapply a statutory instrument

made by the Minister (The Minister for Justice, Equality and Law Reform & anor v. The Director of the Equality Tribunal & ors [2009]

IEHC 72). It is against that decision of the High Court that this appeal was brought by the Tribunal. In that context it should be noted

that, as a result of the Workplace Relations Commission Act, 2015 (“the 2015 Act”), the relevant functions of the Tribunal have now

been transferred to the Workplace Relations Commission. Nothing turns on that change for the purposes of this appeal. While the

respondent/appellant is now named as the Workplace Relations Commission, the events with which this appeal is concerned happened

while the relevant jurisdiction was vested in the Tribunal and I will continue to describe the relevant body as the Tribunal in this

judgment although references to the current legal situation clearly relate to the Workplace Relations Commission rather than the

Tribunal.

1.5 Furthermore the High Court did not award the Minister the costs of her successful defence of these proceedings. The Minister has

cross appealed against that costs determination. However, that cross appeal has been deferred pending a decision on the substantive

appeal brought by the Tribunal. Against that very general background it is necessary to consider the issues which arise on this

appeal.

2. Issues

2.1 It is important to start by emphasising that the Court, on this appeal, is not concerned with the substantive question as to

whether the maximum recruitment age for An Garda Síochána amounts to a breach of equality law. Rather, the Court is concerned

with the question of whether the Tribunal has jurisdiction to deal with that matter in the particular context of a case, such as this

where, as already noted, the relevant age is fixed by law.

2.2 In addition it does need to be acknowledged that it is accepted on behalf of the Minister that, should it be shown that the

maximum recruitment age is in breach of law and in particular European Union employment equality law, then the notice parties would

have a remedy in that the High Court would have jurisdiction to make appropriate orders disapplying any measure of national law

which was found to be in breach of the European Union employment equality legislative regime. Thus the issue was not as to whether

it is possible to disapply the law providing for the maximum recruitment age of members of An Garda Síochána at all but rather was as

to whether that task, should it be required so as to ensure compliance with relevant European Union law, was one which was

conferred on the Tribunal or rather was one which is reserved to the High Court.

2.3 It seems to me that it is appropriate to consider the jurisdiction issue initially as a matter of national law. Therefore, the first

question which arises is as to whether, purely on the basis of Irish law, the Tribunal could have a jurisdiction to disapply the

Regulations. If the answer to that question is yes then no issue of European Union law would, of course, arise. The Tribunal would

have jurisdiction, the appeal would have to be allowed and the Tribunal would have to get on with the task of conducting its

investigation.

2.4 However, in the event that, as a matter of national law, it were held that the Tribunal did not have such a jurisdiction then it

would, of course, be necessary to determine whether European Union law required that the Tribunal should nonetheless have the

jurisdiction concerned.

2.5 In either scenario a further issue potentially arises as to the jurisdiction of a statutory body, such as the Tribunal, to at least

embark on a process designed to determine, in cases of doubt, whether it has jurisdiction. In that context counsel for the Tribunal

argued that it would be open to the Tribunal itself to refer the question, of whether its jurisdiction was mandated by European Union

law to include the power to disapply legislation, to the Court of Justice of the European Union (“CJEU”) under Art. 267 of the Treaty

on the Functioning of the European Union (“TFEU”). Thus it was argued that the Tribunal at least had a jurisdiction to embark on the

process to a sufficient extent to consider and determine, if appropriate with the assistance of the CJEU, the extent of its jurisdiction.

On that basis it was said that, irrespective of the ultimate answer to the more substantive jurisdictional question, it could not be said

that the Tribunal lacked jurisdiction to embark on the process in the first place.

2.6 Against the background of those issues it is necessary to turn briefly to the facts.

3. The Facts

3.1 Between 2005 and 2007, each of the notice parties applied for and was refused entry to train as members of An Garda Síochána

on the basis that the Regulations sets the upper age limit for entry as a trainee at 35 years. As a result, the notice parties lodged

complaints under the Employment Equality Acts 1998 to 2004 (“the Employment Equality Acts” which term also includes, where

appropriate, subsequent amending legislation) with the Director of the Tribunal, alleging discriminatory treatment as regards

employment on grounds of age.

3.2 Prior to the Director’s investigation, the issue of the jurisdiction to disapply a statutory instrument such as the Regulations was

raised by the Minister and the Tribunal was requested to exercise its power under s. 79(3A) of the Equality Act 1998 and direct that a

preliminary hearing take place to investigate the jurisdictional issue. The Tribunal declined to do so and instead scheduled a hearing

for the 11th June, 2008, at which it was proposed to deal both with the jurisdictional issue and the substantive issues.

3.3 Under the Employment Equality Acts any such decision was subject to appeal to the Labour Court. The Minister took the view

that, were the Tribunal to deal with the jurisdictional point as a preliminary issue, the decision could be appealed directly to the High

Court, thus saving the parties time and expense. However, given the refusal of the Tribunal to consider its jurisdiction as a preliminary

issue, the Minister decided to apply for and, on the 7th July, 2008, was granted leave to seek judicial review. The relief sought

included an order prohibiting the Tribunal from proceeding with an investigation of the notice parties’ complaints together with a

declaration that the Tribunal lacked the jurisdiction to consider the complaints under the Employment Equality Acts or to embark on a

consideration of whether the Regulations were valid or effective in law.

3.4 It was against those facts that the High Court considered the issues raised. It is next appropriate, therefore, to turn to the

judgment in the High Court.

4. The High Court Judgment

4.1 The judicial review proceedings were determined by Charleton J. in the High Court and judgment was delivered on the 17th

February, 2009, (The Minister for Justice, Equality and Law Reform v. The Director of the Equality Tribunal [2009] IEHC 72).

Charleton J. concluded that the Tribunal, as a body whose powers are defined by statute, was not entitled to commence a hearing

that had the result that it assumed a legal entitlement to overrule or disapply a statutory instrument made by the Minister, in

circumstances where it was not entitled to do so as a matter of law.

4.2 Even if the view was formed that the Regulations were inconsistent with Council Directive 2000/78/E.C. and its implementing

legislation, the Employment Equality Acts, Charleton J. held that the Tribunal lacked the jurisdiction to make a binding legal declaration

of inconsistency and could not exceed its own authority in order to achieve the result provided for by legislation.

4.3 For the reasons identified earlier it seems to me that it is appropriate to consider the issue, at least initially, from the perspective

of national law and only then turn to the question of whether European Union law makes any difference to the situation.

5. The Position in National Law

5.1 The Tribunal is, of course, a so-called creature of statute. It was established by the Employment Equality Acts and in the form of

the Workplace Relations Commission was established by the 2015 Act. Its powers are confined, therefore, to those conferred on it by

statute. Statutory bodies are, however, as much subject to the law as anyone else. As a matter of national law a statutory body

cannot have an implied entitlement to set aside or disapply any measure of law. That principle applies just as much to secondary

legislation made under the authority of the same or any other statute as it does to acts of the Oireachtas. Indeed there are very

significant limitations on the extent to which a jurisdiction to set aside or disapply statutory provisions can, at least as a matter of

national law and consistent with the Constitution, be conferred on a statutory body. The exclusive power of legislating is, of course,

conferred by the Constitution on the Oireachtas. See Article 15. Furthermore, in the light of the consistent line of jurisprudence since

at least Cityview Press Ltd v. An Chomhairle Oiliúna [1980] I.R. 381, it is clear that there are significant limitations on the extent to

which the Oireachtas can confer subsidiary lawmaking powers on persons or bodies.

5.2 Against that background, I should start by noting that there is, of course, a distinction between the setting aside of a legal

measure and its disapplication. As a matter of national law a measure may be set aside by a court for a range of reasons which will be

addressed shortly in the course of this judgment. The term “disapply” is normally used to refer to the circumstances where a measure,

although continuing to have general validity, is required not to be applied in the particular circumstances of an individual case

because its disapplication is necessary to ensure the vindication of rights guaranteed by European Union law. However, a number of

points do need to be made arising from that distinction.

5.3 First, and although not decisive, it is important to note that there is in fact no real difference in practice between the application

of the two concepts in the circumstances of this case. The maximum recruitment age which lies at the heart of these proceedings

applies only to members of An Garda Síochána and is of no wider application. If it was to be determined that it was necessary to

disapply that measure in order to ensure compliance with Union employment equality legislation, then the practical effect would be

that the measure, although perhaps in a highly theoretical sense still extant, would be legally null and of no effect. It would require to

be disapplied in every case.

5.4 However, and more importantly for the purposes of this judgment, it is necessary to emphasise that the Irish constitutional legal

order regards the distinction between the role of the High Court (and the courts which exercise appellate jurisdiction from the High

Court) as being one where, in the words of Art. 34 of the Constitution, that court is “invested with full original jurisdiction in and

power to determine all matters and questions whether of law or fact, civil or criminal”. As the authors of Kelly, The Irish Constitution,

(4th ed, Butterworths 2003 at para. 6.2.04) point out, that provision has consistently been held to establish that the High Court has

full jurisdiction to afford a remedy where a right is breached even though no action, or other remedy, appropriate to the assertion of

the right concerned is immediately obvious. Therefore, if a breach of a right is established and if there is no other obvious court or

tribunal which has jurisdiction to enforce the right concerned by an appropriate remedy, then the High Court has, directly derived from

the Constitution, an entitlement to take whatever action may be necessary. It is clear, as a matter of Irish constitutional law, that

this encompasses obligations under European Union law. Given that European Union law is incorporated into Irish law by the

Constitution itself, it follows that the High Court has full jurisdiction to grant any remedy, not otherwise and elsewhere available,

which may be necessary to ensure that rights conferred under European Union law are vindicated.

5.5 Obviously, in that context, the higher courts, as a matter of constitutional law, enjoy a full jurisdiction to consider the lawfulness

of any measures adopted whether they be primary legislation or a subsidiary delegated legislative provision. In the latter case the

courts can strike down or disapply secondary legislation either because it is inconsistent with the Constitution in itself, because there

has been an excessive conferring of subsidiary legislative power on the relevant person or body, that the secondary legislative power

has been exercised in an ultra vires way or that it is necessary to set aside the secondary legislation in question because of

mandatory provisions of European law. But the extent to which it would be permissible to confer on a statutory body, as a matter of

domestic Irish constitutional law, the power to disapply legislation, must be extremely limited. That is a point to which I will return. In

saying that I emphasise that, at this stage in this judgment, I am dealing solely with the position in national law. It will, for reasons

which I will address later in this judgment, become clear that there may well be circumstances where European Union law requires

that a tribunal or other non-court body must have the power to disapply national legislation where that is necessary to ensure

compliance with mandatory provisions of Union law.

5.6 In the context of the distinction between the constitutional power of the higher courts and the limited role of statutory bodies, it

does not seem to me that, as a matter of national law, any real distinction can be drawn between a power to set aside legislation, on

the one hand, or a power to disapply it, on the other. In substance, both measures have the potential to entitle a body with

appropriate jurisdiction to ignore a measure of national law. Obviously the effect of a measure being set aside may be greater in that

it will not be valid for any purposes whereas a disapplication may in practice render a measure inapplicable in only some

circumstances. However, both involve a relevant court or body not applying what would otherwise be the law which it is obliged under

the Constitution to enforce. As a matter of national law such a decision is one which, at a minimum, can be said to be principally and

primarily conferred on the courts established under the Constitution.

5.7 First it is clear that, if and to the extent that it be possible at all, a power to disapply national secondary legislation as a matter

of national law could only be conferred on a statutory tribunal or other similar body if the statute concerned contained clear wording

conferring the jurisdiction in question and, in compliance with the jurisprudence under Cityview Press, contained clear principles and

policies by reference to which the jurisdiction in question was to be exercised. It does not seem to me that any such power could

ever arise, as a matter of national law, by implication. In that context regard must be had to Art. 37.1 of the Constitution which does

permit “the exercise of limited functions and powers of a judicial nature” in non-criminal matters, by persons or bodies authorised by

law in that regard. The full text of that Article is as follows:

“Nothing in this constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in

matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and

powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such

under this constitution.”

5.8 However, it is clear that the powers and functions which can thus be conferred on a tribunal or body which is not a court in the

constitutional sense must be limited. In my view a significant power to disapply duly enacted legislation could not be described as a

limited power in the sense in which that term is used in Art. 37.1. While it has been held, in cases such as Tormey v. Ireland [1985]

I.R. 289, that it is possible to vest some judicial jurisdiction exclusivity in a tribunal to the exclusion of the High Court, it nonetheless

remains the case that the power vested must be of a limited nature if it is not to fall foul of the requirement specified in Art. 37.

5.9 In that context it is appropriate to note that the Tribunal does have one express power to disapply measures of a quasi legislative

variety being registered employment agreements under the Industrial Relations (Amendment) Act 2015.

5.10 However, registered agreements are given the force of law by reason of a decision of the Labour Court under s.8 of that act and

there is, under s.9, an appeal from a decision of the Tribunal setting aside a provision of such an agreement to the Labour Court

itself. It follows, first, that the power to set aside a registered agreement is extremely limited and relates specifically to issues arising

in the same adjudicative area (involving the Labour Court) as gave the force of law to the measure under challenge in the first place.

Second that power does not extend to conferring any entitlement or jurisdiction on the Tribunal to set aside any other measures of

secondary legislation.

5.11 It seems to me to follow, therefore, that, as a matter of national law, it cannot be said that there is anything even remotely

resembling an express jurisdiction conferred on the Tribunal to set aside or disapply general measures of secondary legislation (that is

measures other than registered employment agreements). This would suggest that the Tribunal could not provide any relief to the

notice parties for the only means by which any relief could be given would be if the Tribunal did have a jurisdiction to disapply the

Regulations.

5.12 It should be said that that position in national law stems from fundamental constitutional provisions which require that important

or significant legal questions are determined by courts established under the Constitution rather than by statutory bodies or Tribunals.

It is also worth recording, in that context, an important aspect of the way in which, as a matter of national law, Irish law interacts

with European Union law in this area. The Irish courts fully recognise and seek to implement the obligations placed on them by

European Union law to seek to ensure that rights guaranteed by Union law are vindicated by an appropriate remedy. Where, however,

and subject to the principles of equivalence and effectiveness to which I will shortly turn, there may be two ways of ensuring the

vindication of European Union law rights, the Irish Constitution mandates that the solution to be found is the one which most closely

accords with the Irish constitutional legal order.

5.13 In the circumstances of this case it might be said that there are two potential solutions to the problem of disapplication, at least

so far as national law is concerned. The first would be to confer on the Tribunal a power to disapply national legislation. The second

would be to disapply any measures of national law which might otherwise restrict the power of the High Court fully to vindicate any

European Union law rights which may be established. While it would, ordinarily, be the case that the High Court could not embark on a

hearing dealing with an ordinary employment equality case (for the jurisdiction in that regard is, ordinarily, conferred on the Tribunal),

in circumstances where the complaint, if it is to be upheld and if the rights of the persons making the complaint are to be vindicated,

would require the disapplication of a measure of national legislation, then it would be necessary to disapply any rules of national law

which stood in the way of the High Court exercising the full powers which would ordinarily be enjoyed by the Tribunal in order that the

Union law rights of the complainant concerned be fully vindicated.

5.14 The latter solution is in full conformity with the Irish constitutional legal order for it derives from the constitutional power of the

High Court to deal with all matters of law and fact and requires the disapplication of any aspect of statute law which might stand in

the way of the High Court being able fully to vindicate the rights asserted. The alternative solution of extending a power, which would

not otherwise arise, to the Tribunal to disapply national legislation is wholly contrary to the national legal order and, certainly as a

matter of national law, would not represent an appropriate solution to the problem.

5.15 It follows that, 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.

5.16 Against that backdrop it is necessary to turn to the question of whether European Union law requires that a different conclusion

to be reached.

6. The Position in European Union Law

6.1 In the ordinary way questions relating to the procedure, which needs to be followed before national courts or tribunals, in cases

involving an assertion of rights under European Union law, are left to the procedural law of the Member State concerned. That rule of

European Union law has been described as one which confers procedural autonomy on the Member States. It is also clear, as a matter

of Union law, that a similar approach is adopted to national rules which determine the court or tribunal which is to have jurisdiction in

respect of any particular matter in which it is sought to enforce Union law rights. (See Case C-268/06 Impact v. Minister for

Agriculture and Case C-317-320/08, Alassini & ors v. Telecom Italia SpA). However, that general proposition may be said to be

subject to three qualifications. (See also Impact and Alassini).

6.2 First, it may be that European Union law itself makes provision for at least some aspects of the procedure which requires to be

followed. For example, the requirements of Union law to be found in the Public Participation Directive (2003/35/EC) in the

environmental law field require that the procedures available in each Member State for challenging environmental measures which are

the subject of that directive must be such as confer wide access to justice and permit challenges to be brought at a cost which is

not prohibitively expensive. While some significant measure of procedural autonomy is retained by Member States as to the manner in

which those broad obligations are to be met, nonetheless the overall autonomy of Member States is reduced by the mandatory

requirements set out in the Directive itself. It should, of course, be recorded that there are no similar express measures of Union law

called in aid in this case.

6.3 Second, any measure of national procedural law must comply with the principle of equivalence. Under this principle the procedure

to be followed in enforcing a claimed entitlement under Union law must be equivalent to the procedure which would be followed in the

same national court by a party seeking to pursue an analogous claim based purely on national law. (See for example Case 33/76

Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das Saarland [1976] ECR 1989)

6.4 Third, national procedural law must comply with the principle of effectiveness. Under this principle the procedures required to be

followed in proceedings seeking to place reliance on entitlements guaranteed by Union law must be such as provide an effective

remedy being one which is not “ practically impossible or excessively difficult.” (See for example Case C-312/93 Peterbroeck, Van

Campenhout & Cie v. Belgian State [1995] ECR I – 4599)

6.5 Against that backdrop, the starting point has to be to note that this Court is essentially concerned with an issue of national

procedure or jurisdiction being the general requirement, as a matter of national law, that, in the circumstances of this case, the role

of considering whether secondary legislation can be disapplied is conferred exclusively on the courts established under the

Constitution.

6.6 It is important, in that context, to emphasise that this is not a case where the consequence of determining that the Tribunal did

not have jurisdiction to consider whether the Regulations were in breach of Union employment equality legislation would be that there

would be no procedure available to the notice parties to challenge the Regulations on the basis of its alleged incompatibility with

Union law. There can be no doubt but that the obligation on Member States to ensure compliance with Union law might, in an

appropriate case, require that a statutory body such as the Tribunal would have jurisdiction to disapply a measure of national law if

that tribunal was the only body which had any competence to deal with the relevant issue and if it were determined that a power to

disapply was necessary to ensure compliance with Union law.

6.7 In that context it is appropriate to recall, as already noted, that there are certain areas where, at least initially, the sole

jurisdiction to deal with certain types of questions can be conferred by statute on a body or tribunal which does not qualify as a

court in the sense in which that term is used in the Constitution.

6.8 It follows that it is constitutionally permissible to confer what are described as “limited functions and powers of a judicial nature”

on a body or tribunal which does not qualify as a court. However, if such a body is dealing with matters which are governed or

influenced by European Union law then such a body must, as a matter of Union law, have any necessary power or jurisdiction required

to ensure that Union law can be effectively enforced in Ireland. There may also be circumstances where a body or tribunal (or indeed

a lower court) which is properly seised of proceedings of a particular type must be held to have a jurisdiction to ensure that Union law

is fully effective in any case properly before it. In those circumstances a measure of national procedural law which would require that

a case properly before the tribunal or lower court concerned could not provide a full remedy (without referring some aspect of the

case to another court) may not be permissible as a matter of Union law.

6.9 But this Court is not dealing with either of those types of cases. It is not said that there is no tribunal or court which could

disapply the Regulations should it prove necessary so to do to ensure compliance with Union law. Rather the issue is as to whether an

employment equality complaint such as that which the notice parties have made can, in the circumstances of this case, only be made

to a court because of an absence of jurisdiction on the part of the Tribunal to disapply the Regulations. Nor is this case concerned

with a situation where the Tribunal clearly has a jurisdiction, as a matter of national law, to embark on an employment equality claim

of the type brought by the notice parties but is said to be precluded from providing an effective remedy. Rather this is a case where

it is said that an employment equality claim whose success is entirely dependent on disapplying a measure of national legislation

cannot properly be brought to the Tribunal at all but rather requires to be commenced in the High Court which court has, for the

reasons already explained, full jurisdiction to make any order which Union law might require.

6.10 The question is, therefore, essentially procedural. In the ordinary way national procedural law would require that a claim that

secondary legislation, such as the Regulations, is not to be obeyed must be brought before the High Court. National procedural law

would, therefore, require that these proceedings, which do just that, be brought before the High Court. The question which arises is

as to whether Union law may mandate a different approach.

6.11 Given that national law, for the reasons already analysed, clearly provides a procedure which would allow the question of the

compatibility of the Regulations with Union law to be litigated, and to allow any remedy required to vindicate Union law rights to be

granted, it follows that the real question which arises on this appeal is as to whether it can be said that the measure of national

procedural law which would, ordinarily, require an employment equality case such as this to be brought before the High Court, while

leaving the vast majority of equality cases to be determined, at least initially, within the Tribunal machinery, can be said to be in

breach of Union law.

6.12 There are a number of bases on which this might be so. First, it might be said that the procedural regime which I have identified

would breach the principles of either equivalence or effectiveness. Clearly if the requirement that an employment equality case such

as this would have to go to the High Court rather than the Tribunal breached either of those principles then it would follow that the

Tribunal would, as a matter of Union law, be required to have the necessary power to deal with the matter.

6.13 However, even if those principles were not breached, it might be said that Union employment equality legislation itself mandated

that the Tribunal, rather than the High Court, or at least as well as the High Court, had the necessary jurisdiction. Those two

questions need to be addressed in turn and I propose to consider first the principles of equivalence and effectiveness.

7. Equivalence and Effectiveness

7.1 In my view the question of equivalence can be dealt with very quickly. The whole reason why it is said that this complaint must

go to the High Court is precisely because any other case of this type, where it is suggested that a measure of secondary legislation

was not to be followed for any of the sort of reasons identified earlier in this judgment, would require, as a matter of national law, to

be brought in the High Court rather than before any tribunal (in the absence of clear wording in the legislation establishing the tribunal

in question conferring an appropriate jurisdiction and, even then, only in very specific and limited circumstances). Thus the procedural

requirements which would, should the argument of the Minister prevail, require this complaint to be brought in the High Court are

identical to the procedural arguments which would apply in any analogous case in which rights were asserted under purely national

law. The procedure proposed by the Minister is precisely equivalent to that which would apply in any similar purely national litigation.

7.2 It is next necessary to consider the principle of effectiveness. That principle is now seen as part of the duty of loyal co-operation

enshrined in Article 4(3) of the TEU. The Court of Justice has indicated that national courts should assess, in accordance with

established principles identified by the Court of Justice itself, whether national procedures provide for an effective remedy in the

sense in which that term is used in the jurisprudence of the Court of Justice. For example in Case C – 93/12 ET Agrokonsulting v.

Izpalnitelen, at para. 58,the CJEU, having indicated that, in relation to the aspects of Bulgarian procedural law which were under

consideration in that case, there were considerations which might suggest that those measures did not infringe the principles of

effectiveness went on to say that it “is, however, for the referring court, which, unlike the Court in a case referred under Art. 267

TFEU, has jurisdiction to assess the facts of the dispute in the main proceedings and to interpret Bulgarian law, to ascertain whether

that is the case in those proceedings”. It follows that, in accordance with the jurisprudence of the CJEU, it is for the referring court

to determine the appropriate national procedural law (and where, as here, the matter is before the court of final appeal in the national

legal order, to do so definitively) and also to assess any facts relevant to the question of whether the principle of effectiveness has

been infringed. It is then necessary to reach an overall assessment having regard to the principles identified in the jurisprudence of

the CJEU.

7.3 Many aspects of the test are well established being that the detailed procedural rules governing actions for safeguarding an

individual’s rights under Union law must not render practically impossible or excessively difficult the exercise of rights conferred by

Community law. See for example in Case C-312/93 Peterbroeck, Van Campenhout & Cie v. Belgian State [1995] ECR I – 4599 at para.

58.

7.4 The Court of Justice has also consistently held that the observance of the requirements of the principle of effectiveness require

an analysis of the role of the rules concerned in the procedure viewed as a whole and also “to the conduct of that procedure and to

the special features of those rules, before the various national instances” (see for example Case C – 63/08 Pontin [2009] ECR I-

10467, paras. 46 and 47 and the case-law cited).

7.4 Therefore, where a national court is called on to assess whether the principle of effectiveness has been breached, the national

court must apply its knowledge of its own procedural rules and structures to determine whether the principle of effectiveness has

been breached. In that context it is necessary to turn to the issues canvassed on this appeal which, it was said, might lead to the

requirement of national law which would lead to the requirement of national law which would lead to the matter being dealt with by

the High Court being considered to be in breach of the principle of effectiveness.

7.5 Here it must be noted that the procedure which would be followed should the Tribunal be found to have jurisdiction to disapply

secondary legislation would allow for an appellate structure which would ultimately entitle either party to bring an appeal on a point of

law to the High Court and, potentially, further appeals within the courts system itself. Thus the employment equality regime provided

for under the Employment Equality Acts does not confer exclusive jurisdiction on the Tribunal without recourse to the courts because

the decisions of the Tribunal are subject to an express appeal on legal issues which can ultimately be brought to the courts

established by the Constitution. It has to be said that it would be likely, in practise, that a case such as this, which involved a

significant public law remedy, such as the disapplication of a duly enacted piece of secondary legislation, would be pursued on appeal

to the courts by relevant state authorities although it must, of course, remain the case that it is theoretically possible that this would

not occur.

7.6 It follows that, as matter of national procedural structure, cases, such as those which are the subject of these proceedings, are

highly likely to end up before the High Court in any event and might, indeed, involve further appeals within the courts system. On one

view the fact that such a case might commence before the Tribunal could give rise to additional layers of hearing and thus, if

anything, make the process more complicated, lengthy and potentially expensive.

7.7 The Supreme Court is aware that the Court of Justice has, in some of its case law, had to consider whether a requirement to pay

court fees might be such as would render the vindication of rights guaranteed by Union law excessively difficult so as to breach the

principle of effectiveness. It would, I think, be fair to say that the jurisprudence of the Court of Justice makes clear that it is possible,

at the level of principle, that excessive cost may breach the principle of effectiveness. However, in at least some of the recent case

law of the Court of Justice, the level of cost concerned was not found to render the process excessively difficult.

7.8 It is in that context that the question of costs needs to be addressed. It should be noted that the High Court can, and frequently

does, award costs against a losing party. Thus a party who commences proceedings in the High Court runs the risk that costs would

be awarded against them. On the other hand, a party bringing proceedings in the High Court enjoys the advantage that, should they

be successful, costs, including legal fees, will be awarded in their favour thus providing a form of litigation support which has proved,

in practice, effective in ensuring legal representation in cases where it is needed. The fact that costs are not awarded before the

Tribunal does, obviously, mean that a complainant to the Tribunal is not at risk of having an award of costs against them but also

means that the complainant does not have the benefit of possibly obtaining an order for costs in the event of being successful. Thus

a complainant who feels that legal assistance may be to their advantage in pursuing a complaint may find it more difficult to obtain

the services of the necessary lawyers precisely because of the absence of any potentiality to award costs.

7.9 In addition it is necessary to have regard to the fact, as noted earlier, that there is a likelihood that cases of this type (being the

type of case which, as a matter of national law, for the reasons analysed in this judgment, would be excluded from the Tribunal) are

likely to progress to the courts in any event so that the potentiality for excluding any ultimate exposure to costs is materially

reduced.

7.10 Next, it might be said that the Tribunal has a degree of expertise in equality matters which could be brought to bear on

complaints such as those made by the notice parties. However, the Employment Equality Acts, by allowing for an appeal to the High

Court on a point of law, effectively leaves the final decision on whether there has been a breach of law, (at least insofar as legal

issues are concerned), to the courts rather than to the Tribunal. While the Tribunal may establish the facts (and while the role of the

Court, in considering an appeal, may be limited so far as the facts are concerned) nonetheless the question of whether it is

necessary, as a matter either of national law or of Union law, to disapply or set aside a measure of secondary legislation would

principally and essentially be a question of law which would, even were the complaint to be initiated before the Tribunal, be most

likely to come to be finally determined by the courts established under the Constitution. There is also no reason in principle why,

should it be considered desirable, the agencies established by the 1998 Act to promote employment equality, or their successors,

could not be involved as notice parties in any proceedings brought in the High Court so that their expertise could, should they and the

parties wish it, be brought to bear on the case.

7.11 It is relevant to acknowledge that the machinery established under the Employment Equality Acts for the investigation of

complaints under equality legislation does confer significant investigative powers which undoubtedly can assist in the establishment of

any facts necessary to reach a conclusion as to whether there has been a breach of national or European employment equality law.

However, in appropriate cases, the High Court can exercise a very wide power of ordering disclosure of documents or facts where the

documents or facts concerned can have a material bearing on the outcome of proceedings. In the light of the broad powers enjoyed

by the High Court in that regard it cannot, in my view, be said that the ability to establish the facts would be any the less in a case

commenced before the High Court as opposed to a case commenced before the Tribunal.

7.12 In that context it is also said, correctly so far as it goes, that the procedure before the Tribunal is inquisitorial whereas the

procedure before the High Court is adversarial. It is not understood how that matter, of itself, could be said to establish that the

requirement that proceedings involving the potential disapplication of legislation be brought in the High Court, was contrary to the

principle of effectiveness. Many different types of proceedings, some involving issues of rights under European law, are brought in

different member states by means of proceedings which are, to a greater or lesser extent, at the inquisitorial or alternatively the

adversarial end of what might be described as a spectrum. But that fact, of itself, can hardly be said to show that the vindication of

European Union law rights would be excessively difficult particularly where, as here, the High Court would enjoy the entitlement to

ensure that all necessary facts and documents can be procured so as to come to an appropriate resolution of the case.

7.13 Next it was argued that the vindication of rights might be excessively difficult because of what was said to be the limited

jurisdiction which the High Court would enjoy should proceedings have to be maintained before that court rather than before the

Tribunal. However, for the reasons already analysed earlier in this judgment, I am satisfied that that submission is misconceived as a

matter of national law. The High Court would enjoy at least the same jurisdiction as the Tribunal to deal with any employment equality

case which was properly brought before it in circumstances where it was only the High Court which enjoyed competence to deal with

the matter in hand because of the potential necessity to disapply national legislation. Thus there would be no difference at all

between the capacity of the High Court to make an appropriate order in favour of a complainant should be that necessitated to

ensure the vindication of rights enjoyed under Union employment equality legislation.

7.14 It is also worth recording that the test which must be applied under the jurisprudence of the Court of Justice in determining

whether a measure of national procedural law breaches the principle of effectiveness does not require that the procedure be perfect

or that there might not be ways in which the procedure might be improved. Rather the test is as to whether the procedure which

national law would require to be followed might render the vindication of Union rights excessively difficult.

7.15 The Tribunal has not, in my view, pointed to any aspect of the regime which would require to be followed in the event that

national law is applied and proceedings of this type are required to be brought before the High Court, which would render the

vindication of Union employment equality rights in the High Court excessively difficult. The only point which might have had some merit

in that regard was the suggestion that the High Court would not have a sufficiently wide jurisdiction to grant all of the remedies which

might be required. However, as already noted, that proposition is not correct as a matter of national law and that factor does not,

therefore, apply. It is difficult to see how the fact that the proceedings are adversarial renders the pursuit of a vindication of Union

rights excessively difficult particularly where those same adversarial procedures allow any party to require, under compulsion, the

disclosure of any facts or documents which might potentially be relevant to the factual issues in the case. So far as cost is

concerned there might be some circumstances in which there would be a greater exposure to cost before the High Court but it might

equally follow that there would be disadvantages in being required to pursue a case in circumstances where the costs incurred in

bringing the complaint before a body such as the Tribunal could not be recovered even if the proceedings were successful.

7.16 In the light of that analysis I am not satisfied that the measure of national law which would, ordinarily, require that proceedings

of this type be brought before the High Court rather than before an adjudicative body such as the Tribunal, fails to provide an

effective remedy for any breach of Union law which might be established in the sense in which that term is used in the jurisprudence

of the Court of Justice.

7.17 For those reasons I am satisfied that a requirement that a complaint, such as that of the notice parties, be brought to the High

Court rather than the Tribunal, would not breach either the principle of equivalence or the principle of effectiveness. There remains,

however, the question of whether, nonetheless, Union employment equality legislation requires that the Tribunal, as the body

ordinarily entrusted with dealing with equality matters in compliance with Ireland’s obligations under Union law, must nonetheless have

a jurisdiction to disapply secondary legislation. However, before going on to deal with that issue I should return to the matter referred

to earlier in this judgment which concerns the contention put forward on behalf of the Tribunal that it would have, even as a matter

of national law, a jurisdiction to deal with the complaint of the notice parties at least to the extent of determining, if necessary with

the assistance of the CJEU, whether it has jurisdiction in the first place. I, therefore, turn to that question.

8. A Jurisdiction to decide Jurisdiction

8.1 The starting point for the consideration of this issue is that, ordinarily, it can be said that an employment equality claim could be

brought before the Tribunal. On the basis of that argument it might be considered that the fact that the Tribunal might, on one view,

have no jurisdiction to deliver an appropriate remedy does not deprive the Tribunal of at least an initial jurisdiction to entertain the

complaint of the notice parties. Indeed, it might be said that the initial position adopted by the Minister appeared to accept that fact

for, as noted earlier, the Minister initially invited the Tribunal to consider the question of its jurisdiction as a preliminary issue.

8.2 It is important to emphasise that the circumstances in which it might be said that a statutory body such as the Tribunal (or,

indeed, a court of local and limited jurisdiction) lacks jurisdiction may derive from many different types of situations. Sometimes

jurisdiction depends, at least in part, on the facts. In such a case it is difficult to see how the body in question cannot have at least

an initial jurisdiction to consider whether the factual backdrop to a claim or complaint is such that it brings it within its jurisdiction.

8.3 Next jurisdiction may depend on a mixed question of law and fact. There may be legal issues but there may also be factual

questions as to how the law on jurisdiction is to be applied to the relevant factual scenario. Again, in such a case, it is difficult to see

that the relevant body could not consider the law and the facts to determine whether it has jurisdiction.

8.4 Indeed, in some such cases, it may well be that there would be little practical benefit in separating out issues of jurisdiction from

the substantive issues which would arise for experience has shown that there often be a close link between the circumstances giving

rise to a claim or complaint in the first place and questions of fact which may have a role in determining jurisdiction. Courts have

repeatedly emphasised that, while there is a jurisdiction to try preliminary issues and also a jurisdiction to embark on so-called modular

trials, there may also be circumstances where “the longest way round may be the shortest way home” and the desirability of

separating out different parts of the process may be limited.

8.5 For these, and other, reasons there may well be many circumstances where it could not be said that a body lacks jurisdiction to

at least embark on a process, investigation or inquiry where questions may need to be addressed to determine whether it has

jurisdiction and where there may be at least a link between some of the issues which may, arguably, require to be determined to

decide on jurisdiction and issues which would arise in determining the substantive matter.

8.6 However, on the other hand, there undoubtedly are some cases where the question of jurisdiction is purely one of law and is not

dependent at all on the specific facts of the case.

8.7 In a recent decision of this Court, in Revenue Commissioners v. Droog [2016] IESC 55, the Court determined that “to start a

process which can have no lawful conclusion must itself be legally impermissible.” On the facts of that case the only legitimate

purpose for the raising of an opinion under s.811 of the Taxes Consolidation Act, 1997 (“the 1997 Act”) would have been to seek to

have it determined that Mr. Droog should have to pay additional tax. The opinion in question had no legal effect as such. If, however,

it became final it would lead to the relevant taxpayer becoming liable to additional tax.

8.8 However, the only manner in which an obligation to pay more tax could have arisen in the circumstances of that case would

necessarily have required that the obligation to pay any such additional tax would have arisen outside of the time limits specified in

s.955 of the 1997 Act, so that such a requirement would not have been legally permissible. In those circumstances the Court held, at

para. 9.1, that “the commencement of that process by the raising of the opinion in question can have no lawful objective. It must,

therefore, itself be regarded as being legally impermissible”.

8.9 It follows that there are cases where, although in other circumstances a jurisdiction to commence a particular process exists,

such a process must be regarded as being legally impermissible if, as a matter of law, there could be no lawful conclusion to the

process concerned. I would distinguish such cases very clearly from the type of situation which may arise where the question of

jurisdiction is dependent on facts yet to be established or in controversy or, indeed, on mixed questions of law and fact. Where,

however, the potential lack of capacity to reach a conclusion is dependent purely on a matter of law then different considerations

apply. To commence a process which, irrespective of the facts which might be found, can have no lawful conclusion is, as the Court

pointed out in Droog, legally impermissible.

8.10 The only possible conclusion, other than a dismissal or rejection of the complaints of the notice parties, which could have been

reached in the underlying dispute with which these proceedings are concerned would require the disapplication of a measure of

secondary legislation. If such a conclusion is not within the competence of the Tribunal then it is clear that the complaints of the

notice parties could not have any material lawful conclusion in their favour and it would follow that embarking on that process would,

itself, be legally impermissible. The Tribunal does not have jurisdiction to embark on a process which requires the disapplication of

secondary legislation where there is an alternative course of action open which complies with the principles of equivalence and

effectiveness.

8.11 Therefore, it seems to me that the Tribunal has embarked, potentially, on a process which can have no lawful conclusion.

However, that will be so only if it should transpire to be the case that the Tribunal is not required, as a matter of Union law having

regard to Union legislation, to have a jurisdiction to disapply national secondary legislation even though there is an alternative course

of action available which complies with the principles of equivalence and effectiveness. If it is not so required then it can have no

lawful basis for considering the complaints of the notice parties. If the Tribunal is required as a matter of Union law to have such a

jurisdiction then it obviously has such a lawful basis.

8.12 It follows, in my view, that it is necessary, for the purposes of resolving this appeal, to address that question.

9. Does Union Law require the Tribunal to have a Jurisdiction?

9.1 The starting point for a consideration of this issue must, of course, be to record that Union law confers significant and

substantive employment equality rights. There must, as already noted, be effective means for the vindication of those rights in the

national legal order.

9.2 However, Union law does not mandate that any particular type of court or body be given the role of providing appropriate

remedies whether at first instance or on appeal. Subject to the principles of equivalence and effectiveness, the choice of the forum

within which such rights are to be vindicated is left to the Member States to determine as a matter of their own procedural law. It

follows that there is no necessary reason of Union law which requires that there had to be an employment equality type tribunal at

all. Ireland could have chosen, had it wished, to leave such matters to an appropriate claim in the courts although there are,

doubtless, sound policy reasons why Ireland has chosen the employment equality structures which it has. Nothing in this judgment

should be taken as suggesting that there is anything at all inappropriate about the method adopted in this jurisdiction.

9.3 However, that general observation provides a backdrop to a consideration of the question of whether, given that Ireland has

chosen the employment equality enforcement regime which it has, the Tribunal, as the ordinary means by which most employment

equality cases are to be pursued, must, as a matter of Union law, be taken to have a competence or jurisdiction to disapply

secondary legislation.

9.4 In essence the argument put forward on behalf of the Tribunal is that, while accepting that Ireland did not have to choose the

model which it did and thereby create the Tribunal, nonetheless, having done so, Union law mandates that the Tribunal have the

power to disapply secondary legislation.

9.5 The contrary argument, urged on behalf of the Minister, is that Union law does not require that the entire jurisdiction in relation to

employment equality matters governed by Union law be conferred on a single body such that there is not, on the Minister’s argument,

any reason in principle why jurisdiction in respect of one type of case cannot be conferred on a statutory body with another type of

case being exclusively reserved to the courts established in accordance with the Constitution. This is said to be so particularly where

there are fundamental constitutional reasons for adopting that course of action.

9.6 I am not satisfied that the answer to that question can be said to be acte clair and in those circumstances I proposed that the

Court should refer an issue to the CJEU under Art. 267 of the TFEU for the purposes of assisting this Court in resolving this appeal.

For the reasons already noted I considered that an answer to this question is necessary to dispose of this appeal.

9.7 Given that the other members of the Court agreed with that proposition, the Court gave a ruling on the 1st June, 2017 in the

following terms:-

“Having considered the issues which arise on this appeal the Court has decided that it is necessary to refer certain questions

to the Court of Justice of the European Union under the provisions of Article 267 of the Treaty on the Functioning of the

European Union.

The Court will give a full judgment setting out its reasons for coming to that conclusion on Thursday 15th June at a time to be

notified to the parties. However, in the meantime the Court has been preparing a draft reference document which will be

made available to the parties not later than close of business on tomorrow Friday June 2nd.

In accordance with its normal practise the Court will afford the parties an opportunity to make observations on the text of the

reference document but, having regard to the necessity to have the final text available not later than the 15th June, the

Court will require that any such observations be filed with the registrar of the Court not later than close of business on Friday

9th June.

The Court would wish to emphasise that, in accordance with the jurisprudence of the Court of Justice, it is a matter for this

Court to determine the content of the reference document. The Court will also emphasise that it has made a final decision to

the effect that a reference is necessary and that issues broadly along the lines of those which will be set out in the draft

reference document require to be the subject of that reference.

It follows that any observations should not be directed either to the issue of principle as to whether there should be a

reference at all or as to the broad drift of the issues to be referred. Any observations should relate to the detail of the text of

the reference document.”

9.8 Thereafter the parties were supplied, in accordance with the process which was set out in that ruling, with a draft order of

reference and invited to make comments.

9.9 As noted in the ruling the Court proposed to give judgment on the appeal on today’s date. The purpose of this judgment is to set

out the reasons why I supported the view of the Court that there should be a reference along the lines set out in the draft order of

reference thus circulated.

9.10 In addition, I have considered the observations made by the parties on that draft order of reference and annex to this judgment

the final text of an order of reference which I propose should be made.

10. Conclusions

10.1 As already noted in the ruling delivered by the Court on the 1st June last, the Court has determined to make a reference of

certain issues of European law to the CJEU under the provisions of Art. 267 of the TFEU. The purpose of this judgment is to set out

the reasons why I supported that view of the Court. In substance I have set out the basis on which I consider that, as a matter of

national law, a person or body exercising statutory power (not being a court established under the Constitution) does not have

jurisdiction to commence a process where the only positive conclusion would involve setting aside or disapplying a measure of

legislation, whether primary or secondary. On that basis I have concluded that the Tribunal would not, as a matter of national law,

have jurisdiction to entertain the complaints of the notice parties in this case for the only lawful conclusion in favour of those notice

parties would require the disapplication of the Regulations.

10.2 I also note that it is accepted that the High Court would have jurisdiction, were it persuaded that it were necessary so to do so

as to ensure the vindication of rights conferred by European Union employment equality law, to disapply the Regulations and I would

also hold that the High Court would have jurisdiction to make any orders required to vindicate rights conferred by Union law. In those

circumstances I also set out the reasons why I consider that the provision of national procedural law, which would require that

complaints of this type, involving as they necessarily would in order that there be a successful outcome, the disapplication of a

measure of national legislation, must be brought to the High Court, complies with the principles of equivalence and effectiveness. For

the reasons analysed in this judgment I am satisfied that the division of competence between the Tribunal and the High Court in that

way does comply with those principles.

10.3 However, there remains an issue as to whether, nonetheless, Union employment equality legislation requires that the Tribunal,

notwithstanding those findings, must have a jurisdiction to embark on the hearing of these complaints. It is to that issue that the

order of reference, which I propose that the Court should make today, is directed.