Supreme Court declares Statistics Order invalid for failing to specify mandatory data collection frequency under 1993 Act.

THE SUPREME COURT

[Appeal No: 28/2010]

Denham C.J.

Clarke J.

Laffoy J.

Between/

Dunnes Stores

Applicant/Appellant

and

The Central Statistics Office and the Minister for State at the Department of the Taoiseach

Respondents

and

Ireland and the Attorney General

Notice Parties

Judgment of Mr. Justice Clarke delivered the 10th October, 2014.

1. Introduction

1.1 The collection of statistics, both at an Irish and a European level, is a vital tool in understanding much economic and other

activity and also in enabling proper planning and policy development. The independence of those charged with compiling and

publishing statistics is also a vital part of the process for, if the public and those charged with planning and policy development can

not fully trust published statistics, very obvious and serious difficulties would ensue. While those important issues form the backdrop

to these proceedings, in reality the question raised on this appeal is extremely narrow and concerns the proper interpretation of one

aspect of the relevant Irish legislation being the Statistics Act, 1993 ("the 1993 Act").

1.2 The first named respondent ("the CSO") is, of course, the body charged with the production and publication of statistics under

the 1993 Act. Certain functions under that Act are conferred on the Taoiseach. Relevant functions, for the purposes of the issues

arising on this appeal, have been delegated by the Taoiseach to the second named respondent ("the Minister"). The

applicant/appellant ("Dunnes") is one of the largest retail companies in Ireland. It is hardly surprising, therefore, that information from

Dunnes is required for the production of many statistics which the CSO publishes.

1.3 This case concerns the frequency with which Dunnes are required, as a matter of law, to provide information to the CSO for

balance of payments purposes. The CSO required Dunnes to complete quarterly statistical forms relying on the powers purportedly

conferred by the Statistics (Balance of Payments and Financial Accounts) Order 2005 (S.I. no. 124 of 2005) ("the 2005 Order"). There

is no doubt or dispute but that the 2005 Order, in its terms, permits the CSO, through its Director General ("the Director") or other

authorised officer, to require a company such as Dunnes to provide the relevant information by completing the forms in question.

Dunnes argued that, on a basis to which I will shortly turn, the 2005 Order was ultra vires the 1993 Act by conferring too broad a

discretion on the CSO in respect of the frequency with which such information could be directed to be provided.

1.4 It is also important to note that Dunnes failed to comply with the requirements of the CSO in that regard and were threatened

with prosecution under s.36 of the 1993 Act in respect of that failure. Against that background Dunnes commenced judicial review

proceedings designed to establish that the 2005 Order was invalid and that, as a consequence, the directions of the CSO made under

that order under pain of criminal sanction were themselves invalid thus, it was argued, preventing any proper prosecution. For the

reasons set out in a judgment delivered on the 17th December, 2009, O'Neill J. in the High Court rejected Dunnes claim (Dunnes

Stores v. Central Statistics Office & ors [2009] IEHC 561). Dunnes have appealed to this Court.

2. The Facts and the Issue

2.1 The relevant facts and the underlying primary and secondary legislation are fully and comprehensively set out in the judgment of

O'Neill J. and it is, therefore, unnecessary to set them out again in any detail. In section 4 of his judgment O'Neill J. correctly noted

that the principal issue was as to whether article 6 of the 2005 Order involved a delegation by the Minister to the CSO of a power to

set the frequency of requests in respect of balance of payments information and, if so, whether same amounted to an impermissible

delegation. Subject to one point concerning a possible European Union law dimension, counsel were agreed that this narrow question

was the sole issue which properly arises on this appeal.

2.2 In addition, counsel on both sides accepted that section 5 of the High Court judgment accurately set out the positions adopted

by the parties before that court which positions were repeated on this appeal with, hardly surprisingly, counsel for the CSO and the

Minister confining most of their argument to supporting the reasoning of O'Neill J. and counsel for Dunnes seeking to challenge one

specific aspect of that reasoning. Before going on to an analysis of the narrow issue of construction which arises, I should briefly

touch on the European Union law point in deference to the argument, in that regard, made by counsel on behalf of the CSO and the

Minister.

3. Is there an EU Law Issue?

3.1 Counsel drew attention to a series of European Union legal measures which clearly require Ireland to prepare balance of payments

statistics, in accordance with the relevant measures, on a quarterly basis and to transmit those statistics to Eurostat. In particular,

counsel drew attention to article 3 of Regulation 184/2005 ("the Regulation") which, in sub article 2, obliges "natural and legal

persons" to comply with "time limits and definitions" set by national institutions responsible for the collection of data in accordance

with the Regulation. Counsel argued that the measure in question imposed an obligation, as a matter of E.U. regulation (which does,

of course, form part of Irish law), on entities such as Dunnes to supply information to the CSO, as the national institution relevant in

this jurisdiction, to enable the CSO to comply with Ireland's obligations to provide relevant balance of payments statistical information

to Eurostat on a quarterly basis.

3.2 It does not seem to me to be necessary to resolve any issue concerning the precise extent to which article 3 imposes an

obligation on private entities, as a matter of European law, to provide the information in question. It may be the case that such an

obligation can be derived from the Regulation. The Court is, however, here concerned solely with the imposition or potential imposition

of a criminal sanction for failure to comply. The Regulation does not purport to create any particular sanction for failure. Insofar as a

criminal sanction can be said to exist in Ireland for failure to comply with any obligation to provide information to the CSO, then same

can only arise under the 1993 Act.

3.3 Whatever may, therefore, be the obligations on an economic entity such as Dunnes, as a matter of European Union law, to supply

information to the CSO, and whatever may be the means of enforcing such obligation, no such requirement can be backed with a

criminal sanction in Ireland unless it properly comes within the scope of the 1993 Act. For those reasons, it does not seem to me that

the European Union law questions which arose in argument are relevant to the very narrow question with which this Court is

concerned, which is, as I have pointed out, solely directed to the availability of a criminal sanction for failure to provide information.

3.4 In those circumstances I turn to an analysis of the Irish situation.

4. Analysis

4.1 I propose to start by briefly setting out the relevant provisions of the 1993 Act and the 2005 Order. Section 13 of the 1993 Act,

which deals with the independence of the Director on statistical matters, states:-

"(13) The Director General shall have the sole responsibility for and be independent in the exercise of the functions of

deciding –

(a) the statistical methodology and professional statistical standards used by the office;

(b) the content of statistical releases and publications issued by the office; and

(c) the timing and methods of dissemination of statistics compiled by the office."

4.2 Section 25(1) of the 1993 Act, which gives the power to the Taoiseach to impose an order requiring the provision of information,

states:-

"(25)(1)The Taoiseach may prescribe by order a requirement on persons and undertakings to provide information under

this Act, specifying, in particular –

(a) the general nature of the information required;

(b) the frequency with which it is to be provided;

(c) the persons or undertakings, or classes of persons or undertakings, required to provide it."

Section 26(1) goes on to provide as follows:

"(26)(1)The Director General or an officer of statistics may, pursuant to a requirement made under section 25 of this

Act, direct by the delivery of a notice any person -

(a) to complete and return a form, questionnaire or other record in accordance with any instructions contained

therein or otherwise communicated to him,

(b) to answer questions asked of him by officers of statistics,

(c) to supply any record, copy of or extract from any record."

4.3 Section 36 of the 1993 Act deals with a failure to provide required information and provides that "any person who fails or refuses

to provide any requested information in response to a direction from the Director General under section 26 or 27 of this Act

pursuant to a requirement made under section 25 of this Act shall be guilty of an offence". In relation to the frequency with which

information required is to be provided, article 6 of the 2005 Order states "information referred to in Article 5 shall be provided when

requested by the Director General, monthly, quarterly, half yearly or annually". Article 5 stipulates that "information, the general

nature of which is specified in Part 2 of the Schedule, is prescribed as information required to be provided for the purpose of surveys

of persons and undertakings to whom this order applies". The information required under Part 2 of the Schedule may properly be

described as information concerning the financial affairs of a person or undertaking to which the order applies.

4.4 It should also be noted that s.24 of the 1993 Act creates a different, and non-mandatory, regime as a result of which the CSO

and its officials can request information for its statistical purposes. However, that regime is not relevant to this case for we are here

dealing with a mandatory requirement backed up by criminal sanction.

4.5 While it did not feature as a significant matter of argument at the oral hearing, the submissions filed on behalf of the CSO and the

Minister did contain significant reference to many authorities on statutory interpretation with a view to suggesting that, in seeking to

construe any individual measure within a particular statute, a court is entitled to, and indeed should, look to the statute as a whole.

For the purposes of the analysis in this case, I have no difficulty in accepting that general proposition, although the precise

parameters of its application may be a matter of some debate in individual cases.

4.6 Next I should express my agreement with the analysis contained in section 6 of the judgment of O'Neill J. up to para. 6.3. The

conclusion that the Director is responsible for the day to day running of the CSO, but that the function of the Taoiseach and/or an

appropriate Minister of State is to exercise a supervisory role, can be derived from the statute. However, the real question is as to

where the line between those two general functions is drawn by the 1993 Act insofar as it concerns the question of the frequency

with which particular statistics are to be compiled under compulsion.

4.7 I do not consider that s.13 of the 1993 Act has any significant bearing on the issues which arise in this case. It is clear that s.13

makes the Director independent in deciding on statistical methodology and the content and timing of the release and publication of

statistics. The reason for such a provision is obvious. To allow interference with statistical methodology or with the timing of the

release of statistics would undermine in a very serious way the necessary independence of the CSO. But it does not seem to me that

those provisions in any way cut across what is said in s.25. The Taoiseach (or in the events that have happened, the Minister) is

entitled under that section to specify the frequency with which any particular type of statistics are to be produced under a

mandatory regime which imposes a potential criminal sanction on private citizens and companies for failure to comply. There may be

circumstances where, for example, the CSO might prefer, for good reasons, to produce figures at one particular level of frequency

rather than another. It might, for example, be felt that, in a particular category, monthly rather than quarterly figures might provide

more useful information. But the statutory regime is clear. If an order made under s.25 specifies quarterly figures then the CSO is

obliged to produce them on that basis unless the Taoiseach or the relevant minister can be persuaded to change the order in

question.

4.8 Once frequency has been determined under s.25, then it is entirely a matter for the CSO to decide on the appropriate

methodology to be adopted to produce the relevant figures (including what directions, within the ambit of the parameters defined in

s.25, are to be made to persons or bodies under s.26). Furthermore, and importantly, the timing of the release of the results of any

statistical analysis (which could, of course, have significant effects not least at politically sensitive times) is a matter entirely for the

independent exercise of the judgment of the CSO. It does not seem to me that there is, therefore, anything inconsistent or

cumbersome in a statutory regime which requires that the frequency with which particular categories of statistics can be collected,

under pain of criminal sanction, are to be determined by ministerial order but that, once so determined, what happens next and how

any results of that process are published, are entirely for the independent judgment of the CSO. The mandatory requirement to supply

information will, doubtless, impose a burden on those required to supply same. The frequency with which such information must be

supplied will determine the scale of that burden. A decision on that frequency is, therefor, as much a matter of policy as of statistical

expertise.

4.9 It is then necessary to turn to the argument put forward on behalf of the CSO and the Minister which places reliance on the

presence of the word "may" at the beginning of section 25(1). There is no doubt that the section permits rather than requires the

Taoiseach (or in the events that have happened, the Minister) to make an order under that section. However, if there is no order in

existence under s.25, then there can be no direction under s.26 which requires persons or entities to make available the types of

information specified in that section for any such requirement must, in accordance with the terms of s.26, be pursuant "to a

requirement made under section 25". If no valid direction under s.26 can be made it follows that no criminal offence under s.36 can

arise. If, it follows, there is no relevant s.25 order then there can be no question of any party being required or directed, under penal

sanction, to comply with a requirement to provide information of a relevant type.

4.10 Acknowledging that fact, counsel suggested that the permissive nature of s.25 merely enabled the Taoiseach (or the Minister),

when making an order under s.25, to deal with some but not necessarily all of the matters set out in the various sub-paragraphs of

that section being the general nature of the information required, the frequency of such requirements and the identity of those on

whom the requirement is placed. I am not satisfied that such is a correct analysis. What is permissive is the making of an order in the

first place. If an order is made then it permits the CSO to make a mandatory requirement to provide information which meets the

specified criteria. In my view an order under s.25 must, therefore, specify each of the matters set out between section 25(1)(a) and

(c). The fact that information comes within such parameters does not, of course, mean that there is a direct and immediate obligation

on any party to provide such information. In order for an obligation to provide such information to actually arise, the CSO must issue a

direction under s.26 which comes within the parameters of the s.25 order.

4.11 The fact that the CSO has the power, as a result of the inclusion of relevant information within the ambit of a s.25 order, to

direct its provision does not mean that the CSO, necessarily, has to exercise that power in all circumstances. The CSO retains

discretion as to how it exercises its power to make s.26 directions but importantly only has that discretion within the parameters of a

proper s. 25 order. A s.25 order imposes limits on the scope of the mandatory information gathering powers of the CSO. It does not

oblige the CSO to exercise those powers up to the limit of that scope.

4.12 For those reasons, I am satisfied that a compliant s.25 order must specify, in accordance with s.25(1)(b), the frequency with

which relevant information is to be provided.

4.13 That leads to the question of whether, as found by O'Neill J. in para. 6.4 of his judgment, it is permissible under s.25(1)(b) for

the Taoiseach or the Minister to specify what was described as "a regime or menu of time periods". What is specified in this case is,

of course, under article 6 of the 2005 Order, "monthly, quarterly, half yearly or annually". It is true, as was pointed out, that shorter

periods such as weekly or fortnightly are not included. It is also true that it might, in theory, be possible to specify a period in excess

of a year. However, it seems to me that what is specified in article 6 of the 2005 Order is very close to the entire range of possible or

likely frequencies which might have been specified. Whether there can be any leeway in a compliant s.25 order which might allow

some room for the CSO to manoeuvre on the question of frequency is a matter which, in my view, does not arise in this case. What

the Minister specified here is virtually the entire range of frequencies which might, in practise, be likely to be identified. To so specify

is, in my view, an abrogation by the Minister of his obligation to specify frequency when making a s.25 order. It seems to me to follow

that the 2005 Order is in a form which is in breach of the obligation to specify frequency required by s.25 and is, thus, ultra vires and

invalid.

5. Conclusions

5.3 For the reasons which I have sought to analyse I am, therefore, satisfied that a valid order under s.25 of the 1993 Act must

specify a frequency by reference to which information is to be gathered under potential penal sanction. I am also satisfied that, in

specifying, as a range of possible frequencies in article 6 of the 2005 Order, almost all of the frequencies which could realistically have

arisen, the Minister acted outside the powers contained in s.25 and made an order which was ultra vires that section.

5.4 It follows that, in my view, the 2005 Order should be declared invalid. On that basis, it further follows that there could never be a

valid direction under s.26 where that direction required compliance with the 2005 Order. It also seems to me to follow that there

could, therefore, be no proper prosecution of Dunnes for any alleged breach of such a direction for the direction itself required

compliance with matters which did not come within a valid s.25 order.

5.5 On that basis I would allow the appeal and grant a declaration as to the invalidity of the 2005 Order and an order prohibiting any

prosecution of Dunnes for breach of a direction under s.26 where the relevant breach is alleged to relate to a failure to comply with a

direction made by reference to the 2005 Order.