Richard Bruton (Dublin North Central, Fine Gael)

It is important to bear in mind that we are seeking to reconstruct legislation which has been struck down by the courts. As Deputy O'Dea acknowledged, the existing legislation was found to be unconstitutional on a number of grounds. One cannot find a fairer reading of the impact of the High Court judgment than the Attorney General's views on what is now needed to make the structure robust and seaworthy. The Attorney General has made clear that the role of the Minister may not be limited to rubber-stamping decisions or engaging in box-ticking exercises. To give a body other than the Oireachtas the power to make decisions which have legal effect - under existing legislation such decisions have criminal implications - one must introduce the type of supervision proposed in the Bill. This requires the Minister to engage in more than a box-ticking exercise and gives him or her a genuine role in overseeing the agreements. The legislation was drawn up after the most careful consideration of the implications of the court ruling that struck down the Act.

Deputy O'Dea, in his usual colourful way, likened the approach taken in the Bill to the reason cited for failures to initiate prosecutions, namely, a lack of sufficient evidence, or the habit of tyrannical regimes of citing the victim's guilt every time they executed someone. This is not the case in this Bill. I am establishing fair procedures to evaluate the circumstances in each workplace governed by an employment regulation order or a registered employment agreement. I am not establishing a regime for careful evaluation in order that I can pull the rug from under it once the work has been done. I am making provision for a ministerial and an Oireachtas element precisely because of the reasons cited by the court in striking down the previous legislation. The ruling drew particular attention to the absence of ministerial or Oireachtas supervision and it is this that the legislation seeks to remedy. This is not a case of the Minister being able to act on a whim in an unaccountable manner. I must notify to the Labour Court in writing the reasons for any decision. In addition, ministerial decisions may be subject to judicial review if people feel aggrieved by the procedure. They are also subject to Oireachtas oversight. I am not providing for a whimsical ministerial power but including a thought-out response to the collapse of the previous legislation when it was challenged in the courts.

I undertook to reflect on the provisions before Report Stage and my officials have consulted the Office of the Attorney General on the matter. They have confirmed that the ministerial order-making powers were included in the Bill to provide an additional constitutional safeguard in the legislation. The view of the Attorney General's office is that these additional safeguards would be lessened if the Minister did not have discretion over whether to make the order. While the Minister does not have the power to amend the terms of an order, he or she has the power, for specified reasons, to refuse to make the order and in such cases would have to notify the court of his or her decision and the reasons for such decision. In practice, however, this scenario is unlikely to arise often.

On Committee Stage, I drew the attention of Deputies to how the High Court, on constitutional grounds in the John Grace Fried Chicken Limited case, highlighted the absence of parliamentary and ministerial control over the fixing of statutory minimum wages by joint labour committees and the Labour Court. In the High Court, Mr. Justice Feeney recalled an earlier Supreme Court case in which the issue of delegated legislation had been addressed, the case of Burke v. the Minister for Labour. He cited the observations made in the Supreme Court in 1979 by Mr. Justice Henchy, who had identified the absoluteness of the delegation within the Act of 1946. In his High Court ruling last year, Mr. Justice Feeney contrasted the failure to amend the provisions of the Act of 1946, notwithstanding the concerns raised in the Supreme Court by Mr. Justice Henchy more than 30 years ago about the untrammelled powers given to JLCs, with the provisions that had been incorporated in the National Minimum Wage Act 2000. Under the Act of 2000, the Labour Court's role is subject to guidance as to the principles or policies that must apply to the determination of a national minimum hourly rate of pay. The Act of 2000 also specifically empowered the Minister to accept, vary or reject the recommendation made by the Labour Court. In varying or rejecting any such recommendation by the Labour Court on the fixing of an hourly minimum wage, the Minister must make a statement to the Oireachtas setting out the reasons for the variation or rejection.

Consequently, what is going on here is not legislative adventurism but is in accord with the interpretation the courts have put on the proper powers and place of Ministers, as well as the approach that was adopted in the provisions of the National Minimum Wage Act 2000.

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