Supreme Court declares 2005 Order ultra vires for exceeding delegated power to fix statistical reporting frequencies.

THE SUPREME COURT

[Appeal No. 028/2010]

Denham C.J.

Clarke J.

Laffoy J.

BETWEEN

DUNNES STORES

APPLICANT/APPELLANT

AND

THE CENTRAL STATISTICS OFFICE AND THE MINISTER OF STATE AT THE DEPARTMENT OF THE TAOISEACH

RESPONDENTS

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

Judgment of Ms. Justice Laffoy delivered on 10th October, 2014

The appeal and its legislative context

1. Dunnes Stores (the Appellant), which is a private unlimited company which engages in retail trading both in this jurisdiction and

abroad, was by order of the High Court (Peart J.) dated 10th December, 2007 given leave to apply by way of application for judicial

review for certain reliefs, including the following:

(a) a declaration that the Statistics (Balance of Payments and Financial Accounts ) Order 2005 (S.I.

No. 124 of 2005) (the 2005 Order) is ultra vires the Statistics Act 1993 (the Act of 1993); and

(b) if necessary, an order of certiorari quashing the 2005 Order.

The application by way of judicial review was heard in the High Court by O’Neill J. who delivered judgment on 17th December, 2009

([2009] IEHC 561). As is pointed out in the judgment (at para. 1.1), while leave was also granted in respect of several other reliefs,

the reliefs outlined above were the only reliefs pursued at the hearing of the application. In his judgment, for the reasons outlined by

him, O’Neill J. concluded that the reliefs sought by the Appellant should be refused. By order of the High Court made on 21st January,

2010, the Court refused the reliefs sought by the Appellant. This judgment relates to the Appellant’s appeal against that order.

2. Before outlining the basis on which the trial judge came to the conclusion that the reliefs sought by the Appellant should be

refused, I consider that it would be helpful to put those reliefs in their legislative context. This involves considering the relevant

provisions of –

(a) the Act of 1993, and

(b) the 2005 Order.

On the appeal, the Respondents invoked a number of European Union Regulations which it is also convenient to address before

considering the judgment of the High Court.

The Act of 1993

3. The purpose of the Act of 1993, as its long title indicates, is to provide for the collection, compilation, extraction and dissemination

of official statistics and related matters.

4. Part II of the Act of 1993 deals with institutional structure. By s. 8 the Central Statistics Office (the Office) is established to

exercise the functions conferred on it by the Act and it is provided that the Director General appointed under s. 12 shall be

responsible for the management and control of the Office. It is provided by s. 13 that 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.”

Section 14 provides that the Director General shall have the right to consult with the Taoiseach concerning any matters affecting the

Office or relating to official statistics or the administration of the Act of 1993.

5. Part III of the Act of 1993 contains provisions governing the collection of information, both on a voluntary basis and on a

compulsory basis. Section 23 empowers the Director General to prepare forms, questionnaires and other records for the collection of

information under the Act and the instructions necessary for their proper completion, and to specify the date or period within which

the completed forms should be returned to the Office. Section 24 empowers the Director General to invite any person or undertaking

to provide information on a voluntary basis. Section 25, which is at the core of the Appellant’s challenge to the 2005 Order, and ss.

26 and 27 provide for mandatory provision of information.

6. Sub-section (1) of s. 25 provides as follows:

“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.”

By the Statistics (Delegation of Ministerial Functions) Order 2004 (S.I. 664 of 2004) the powers and duties of the Taoiseach conferred

on him by the Act of 1993 were “delegated to Tom Kitt, Minister of State at the Department of the Taoiseach”. In the following year

the 2005 Order was made by the Minister of State. Sub-section (2) of s. 25 mandates that a separate order under subs. (1) shall be

made in the circumstances outlined in paragraphs (a) and (b). Paragraph (b) stipulates that a separate order shall be made –

“at least every five years for each continuing survey undertaken at intervals of twelve months or less”.

As it happens, the effect of the 2005 Order is spent now, but the issue on this appeal is still alive. Section 26 empowers the Director

General to direct the provision of information by any person by the delivery of a notice on the person pursuant to a requirement made

under s. 25. Section 27 provides that information requested by the Director General by delivery of notice under s. 26 shall be provided

by the person.

7. Offences, penalties and evidence are dealt with in Part VI of the Act of 1993. Section 36 provides as follows:

“Any person who fails or refuses to provide any requested information in response to a direction from the Director General

under section 26 or section 27 of this Act pursuant to a requirement made under section 25 of this Act shall be guilty of

an offence.”

Section 44 sets out the maximum penalties where a person is found guilty of an offence under any provision of the Act, whether on

summary conviction or on conviction on indictment.

The 2005 Order

8. The 2005 Order, when in force, applied, broadly speaking, to persons and undertakings engaged in transactions specified in Part 1

of the Schedule thereto. Such persons and undertakings were obliged to furnish to the Office the information specified in Part 2 of the

Schedule. Article 5 provided that information, the general nature of which was specified in Part 2 of the Schedule, was “prescribed as

information required to be provided for the purposes of surveys of persons and undertakings” to whom the 2005 Order applied.

9. Article 6 of the 2005 Order, the validity of which is challenged by the Appellant, provided as follows:

“Information referred to in Article 5 shall be provided, when requested by the Director General, monthly, quarterly, half

yearly or annually.”

Article 6 was clearly intended to specify the frequency with which information was to be provided in accordance with s. 25(1)(b) of

the Act of 1993.

Factual and procedural context

10. In 2006 and 2007 the Director General, pursuant to the 2005 Order, directed the Appellant to complete and return quarterly two

forms relating to its group activities, which forms were designated BOP10Q and BOP40Q, the information sought being requested to

enable the Office to compile balance of payments and national accounts statistics. The Appellant having failed to complete and return

the forms in accordance with the direction for the quarters ended 31st December, 2006, 31st March, 2007 and 30th June, 2007, six

summonses were issued from the District Court on 10th October, 2007 alleging that the Appellant had committed offences under s. 36

of the Act of 1993.

11. By the order of the High Court (Peart J.) referred to earlier, the Appellant was granted leave to apply by way of application for

judicial review for the reliefs outlined earlier.

European Union dimension

12. Some reliance was placed by the Respondents on the obligations of the State under European Union Regulations in the

proceedings in the High Court. For instance, in the replying affidavit sworn by Eanna O’Connor on 14th April, 2008 on behalf of the

Respondents it was averred that the Office itself is subject to strict quarterly reporting deadlines imposed on it by Eurostat and the

European Central Bank (ECB) and that the Office is obliged to gather, check, investigate, correct and collate data within those

deadlines. In outlining the legal bases for balance of payments and national accounts statistical demands on the Office, Mr. O’Connor

referred to:

(a) Regulation (EC) No. 184/2005 and amending instruments; and

(b) Council Regulation (EC) No. 2223/6 and amending instruments.

Further, in their statement of opposition in the High Court the Respondents invoked the legal obligation of the Office to comply with

strict deadlines for the provision of data to Eurostat and the ECB and the fact that the demands required information to be supplied

on a quarterly basis, albeit without prejudice to the other arguments advanced on behalf of the Respondents.

13. The European Union Regulations were not addressed at all in the judgment in the High Court.

14. In this Court, counsel on behalf of the Respondents invoked the European Union Regulations, suggesting that there is, in practice,

little discretion as to the frequency with which data in relation to balance of payments and national accounts must be requested and

obtained from relevant enterprises operating in Ireland. While that may well be the case, it is peripheral to the issue which this Court

has to determine, which centers on –

(a) the obligation on persons and undertakings created by national legislation (ss. 25, 26 and 27 of the

Act of 1993) to furnish information to the Office, and

(b) the creation of an offence and the imposition of a penalty for non-compliance with that obligation

(ss. 36 and 44 of the Act of 1993).

Accordingly, I consider that it is not necessary to consider the application of the European Union Regulations any further.

Judgment of the High Court

15. In his judgment, O’Neill J., having outlined the reliefs sought by the Appellant, the facts, the relevant statutory provisions and the

provisions of the 2005 Order, identified the issue for determination. He stated (at para. 4.1) that the principal issue which arose for

determination was whether or not, on a true construction of Article 6 of the 2005 Order, it involved a delegation of a function of the

Taoiseach or the Minister of State to the Director General to set the frequency of requests in respect of balance of payments

information and, if so, whether it is a permissible delegation. There is consensus on the appeal that that is the only issue with which

this Court is concerned.

16. In outlining his decision, O’Neill J. rejected a submission made on behalf of the Appellant, which is recorded in para. 6.1, that,

when the Minister of State came to make regulations under Article 6 of the 2005 Order, the inclusion of the phrase “when requested

by the Director General”, in effect, transferred to the Director General the power to determine the frequency of that period. He stated

(at para. 6.5):

“The phrase ‘when requested by the Director General’ in Article 6 is merely a reference to a request by the Director General

under s. 26(1) of the Act of 1993, which, of course, is the statutory foundation of the power of the Director

General . . . to make a legally binding request or demand for relevant information as prescribed in the [2005 Order]. In no way

does that phrase involve a delegation to the Director General of the power given in s. 25(1)(b) of the Act of 1993 to the

Taoiseach or the Minister of State to prescribe by order the regime of time periods to apply to requests for information, as set

out in Article 6 . . .”

I did not understand it to be part of the Appellant’s case on the appeal that the mere inclusion of the phrase “when requested by the

Director General” in Article 6 of itself had the effect of delegating the power to determine frequency to the Director General, although

it is the Appellant’s case that Article 6 amounts to a purported sub-delegation of the power to specify frequency to the Director

General.

17. Having considered the Act of 1993 in its entirety, O’Neill J. concluded that there is a clear distinction between the role of the

Taoiseach and/or the Minister of State, on the one hand, and the role of the Director General, on the other hand. He stated (at para.

6.2):

“Therefore, in essence, the Director General is responsible for the day-to-day running of the [Office]. The function of the

Taoiseach and/or Minister of State, in contrast, is to exercise a supervisory role and to make relevant regulations as provided

for. The Taoiseach’s or Minister of State’s role is constrained by the parent legislation, as illustrated in this case by s. 25(1) of

the Act of 1993.”

While, on the appeal, the Appellant implicitly accepts that the distinction outlined in that passage exists and, in particular, accepts

that the Director General has responsibility for matters such as statistical methodology and the timing and methods of dissemination

of statistics, it submits that its effect could not be to dilute the statutory power given to the Taoiseach in s. 25(1)(b) to prescribe

the frequency with which a person is required to provide information.

18. The nature and extent of the power which was exercisable by the Minister of State under s. 25(1)(b) was addressed in para. 6.4

of the judgment. O’Neill J., having stated that s. 25(1)(b) empowers the Minister of State to prescribe by order the frequency with

which information is to be provided to the Director General, continued:

“This, having regard to the respective functions of the Minister of State and the Director General, could not mean that in

individual cases the responsibility of deciding the appropriate time period for the provision of information rested with the Minister

of State. Such an outcome would be wholly disruptive of the statutory scheme and clearly not contemplated in the primary

legislation. Section 25(1)(b) mandates the fixing of a regime or menu of time periods for the provision of the information which

can be requested under the legislative scheme. Article 6 of the [2005 Order] does precisely that, and no more. It fixes the

permissible time periods as either monthly, quarterly, half -yearly or annually. What that means is that no other time periods are

permissible. Thus, the Director General would act ultra vires if he were to request information on a weekly basis or any other

periodic basis other than those periods set out in Article 6.”

The Appellant, on the appeal, questions how the conclusion in the second sentence in that passage could be arrived at, even on the

basis of the Appellant’s interpretation of the legislation, which is that the power to specify frequency does not permit giving the

option or discretion to the Director General to choose whether to request information monthly, quarterly, half-yearly or annually. The

position of the Appellant is that, on the contrary, it is perfectly rational for the Minister of State, not the Director General, to be

exclusively vested with the power to determine the frequency with which directions to provide information may be given by the

Director General, having regard to the fact that such directions create onerous obligations on the persons to whom they are directed

and those persons are liable to prosecution for failure to comply with the directions.

19. Later, O’Neill J. elaborated on his concept of the function of the Director General under Article 6. He stated (at para. 6.6):

“The function, which is undoubtedly left to the Director General or an officer of statistics, is to select from the menu of time

periods set out in Article 6, a time period to apply to a request made by the Director General or an officer of statistics.”

The reference to “an officer of statistics” requires explanation. By the Act of 1993 the power to invite any person to complete forms

in accordance with s. 24 or to direct the completion and return of a form under s. 26 of the Act of 1993 is conferred not only on the

Director General but also “on an officer of statistics”. O’Neill J. continued:

“This is a purely ministerial function entirely in keeping with the provisions of the Act of 1993, which, as remarked above, leaves

to the Director General or officers of statistics the discharge of the function of gathering statistical information under the

provisions of the Act. Necessarily, that involves individual requests to individual parties for specific relevant information and

necessarily and unavoidably requires the setting of time periods for the provision of that information. This is a function that

could only be performed by the Director General or officers of statistics and, manifestly, could not be done by the Taoiseach or

the Minister of State under the scheme set out in the Act of 1993. As said above, the Director General or officers of statistics

are restricted to selecting from the time periods prescribed by the Minister of State in Article 6 of the [2005 Order]. The

prescription of time periods in Article 6 . . . by the Minister of State does not impose a legal obligation on any person to do

anything. Until the Director General or an officer of statistics exercises his power under s. 26(1) . . ., and requires information to

be provided, no enforceable obligation exists at law to provide the information. In such circumstances, there is a clear

distinction between the functions of the Taoiseach or Minister of State to prescribe time periods as in Article 6 and the function

of the Director General to create a legally binding obligation to comply with a time period selected by him from the menu of

prescribed time periods. There is no confusion of function or powers here and, in my judgement, no delegation to the Director

General of the power of the Taoiseach or Minister of State under s. 25(1)(b) . . . to prescribe the frequency with which

information is to be provided.”

The use of the epithet “ministerial” in the first sentence in that quotation is strange, given that what is being analysed is a function

exercisable by the Director General or by an officer of statistics. Perhaps, it was intended to describe the function as administrative.

In any event, for the reasons he had outlined, O’Neill J. refused the reliefs sought.

Conclusions

20. The net question which arises for consideration on the appeal can be formulated in a number of ways. One formulation is to ask

whether, when the Minister of State ordered in Article 6 of the 2005 Order that information referred to in Article 5 be provided

monthly, quarterly, half-yearly or annually, he was doing what he was empowered to do under s. 25(1)(b), that is to say, to specify

“the frequency” with which the information was to be provided. Alternatively, one could ask whether, by effectively leaving to the

Director General the choice of directing the provision of information at monthly, quarterly, half-yearly or yearly intervals, the Minister

of State was exceeding the power conferred on him by s. 25(1)(b). However the question is formulated, the answer turns on the

construction of the terms of s. 25 which in 2005 empowered the Minister of State to specify “the frequency with which [information]

is to be provided” in the context of the Act of 1993 as a whole. There is no dissention between the parties as to the proper approach

to the construction of an Act of the Oireachtas and I consider that it is not necessary to refer to the many authorities cited. The

resolution of the question turns primarily on a plain reading of the language used in the Act of 1993 which, in my view, is precise and

unambiguous.

21. Taking an overview of the provisions of the Act of 1993, what is clear on a plain reading thereof is that the Director General or an

officer of statistics does not have power to make a direction compelling provision of information under s. 26 unless an order has been

made under s. 25 imposing such a requirement. Section 25 stipulates the parameters of the requirement which must be addressed in

that order which, apart from the frequency with which the information is to be provided, cover the general nature of the information

required and the persons or undertakings required to provide the information. Therefore, a question arises as to whether specification

of “the frequency with which it is to be provided” is materially different from the specification of the general nature of the information

required or the specification of the persons or undertakings who are to provide it. In my view it is not.

22. Turning to the plain meaning of the word “frequency” in s. 25(1)(b), many dictionary definitions could be cited. In the Concise

Oxford Dictionary (COD), 10th Edition, published in 2001 it is defined first as “the rate at which something occurs over a given period

or in a given sample”. In the context in which it is used in s. 25(1)(b), it means the rate of occurrence or repetition of the

requirement to provide the information over the period of time envisaged which, having regard to subs. (2) of s. 25, must be five

years at the most. Therefore, what the Minister of State was empowered to prescribe in the 2005 Order was the rate of occurrence

or repetition of the requirement over the period, not various optional rates, or, to use the terminology used by O’Neill J., a “menu” of

rates of occurrence or repetition of the requirement from which the Director General could choose. As indicated in the COD, the word

“frequency” is a noun, the plural of which is “frequencies”. Having regard to the word used in s. 25(1)(b), frequency and not

frequencies, it must have been the intention of the Oireachtas that the Minister of State would specify one rate of occurrence or

repetition, whether monthly, quarterly, half-yearly or annually, or more or less frequently.

23. Therefore, on a plain reading of s. 25(1)(b), in the context of the entirety of s. 25 and of s. 26, in my view, it does not mandate

the fixing of a regime or menu of time periods for the provision of information which can be requested under the legislative scheme. On

the contrary, it mandates specification of one single rate of occurrence of the requirement to provide information under s. 26. That

interpretation is no more disruptive of the statutory scheme provided for in the Act of 1993 than the other requirements of s. 25(1),

namely, the specification of the general nature of the information required and the specification of the persons or undertakings

required to provide it.

24. It is unquestionably the case that the collection, compilation, extraction and dissemination of official statistics is a highly

specialised sector of public administration. Identifying the information which it is necessary to collect and from whom it must be

collected on a compulsory basis in order to compile balance of payments and related statistics, including elements necessary for

national accounts, is also a highly specialist function. It is reasonable to assume that, in the normal course, neither the Taoiseach nor

a Minister of State in his Department would have the expertise to make a determination on those issues without the assistance of the

Director General, who has sole responsibility for, and is independent in relation to, the exercise of these functions in relation to

statistical matters outlined in s. 13 of the Act of 1993 quoted earlier. However, the Oireachtas has provided in the Act of 1993 that,

insofar as it is necessary to prescribe a requirement to provide information of that type compulsorily, it is the Taoiseach (or where, as

happened in 2004, there has been a delegation of the powers and duties conferred to a Minister of State at the Department of the

Taoiseach, the Minister of State) who must by order so prescribe, and, in particular, must specify the matters set out in paragraphs

(a), (b) and (c) in s. 25(1). Because of the highly specialist nature of each of the matters set out in paras. (a), (b) and (c) of s.

25(1) there is no material difference between the specification requirement in relation to each of those matters.

25. As the power conferred on the Taoiseach by s. 25 had been delegated to the Minister of State prior to the making of the 2005

Order, the Minister of State had power, when he made the 2005 Order, to prescribe a requirement on persons and undertakings to

provide information compulsorily but he was obliged to specify the matters outlined in paragraphs (a), (b) and (c) of subs. 1 of s. 25

which, in the case of paragraph (b) necessitated specifying with certainty how frequently during the duration of the order a person or

undertaking specified in accordance with paragraph (c) would be required to furnish information of the general nature specified in

paragraph (a). It is not possible, on any basis, to construe s. 25 as empowering the Minister of State to do what he purported to do –

to fix a menu of time periods for the provision of the information required from which the Director General could choose the applicable

time period. As counsel for the Appellant submitted, the power to determine frequency was expressly reserved to the Taoiseach under

s. 25, but what the Minister of State, to whom the power was delegated, did in 2005 was to attempt to give the power away to the

Director General.

26. For the foregoing reasons I am satisfied that the appeal should be allowed and that this Court should make a declaration that the

2005 Order was ultra vires the power conferred by s. 25 of the Act of 1993.

27. Finally, while I have primarily adopted a linguistic approach to the construction of s. 25, I am in full agreement with the analysis of

the Act of 1993 and the 2005 Order in the judgment delivered by Clarke J.