Willie O'Dea (Limerick City, Fianna Fail)

First, I wish to make clear that I do not question in any way the bona fides of the particular Minister opposite. Nevertheless, if this is the advice of the Attorney General, I would seriously question that advice on foot of my own reading of the case. If one reverts to the High Court case, that court was presented with a scenario whereby these committees, which were set up to provide pay and conditions for particular workers, had a lot of powers. They could recommend rates of pay, that certain conditions which applied in Cork might not apply in Limerick or that different conditions might apply, etc. Consequently, the principal case put by counsel on behalf of the plaintiff in this case was that these powers were so extensive that they should at least be governed by a certain set of principles. The Constitution provides that if certain extra-parliamentary bodies are doing something that is tantamount to creating legislation and is almost equal to what Members are doing here as legislators, they must be governed by a certain set of principles. As a result, the High Court was obliged to decide whether this particular case fell into that category and it decided it did. It concluded that these committees were exercising quasi-legislative powers without supervision. First, the High Court noted the absence of a set of principles within which the committees had to operate. Second, the court considered whether what they were doing was supervised. It decided it was not, because there was no provision whereby their decisions could be referred to the Oireachtas. Moreover, there was no provision for the Minister to have any involvement, even in terms of signing off. Consequently, on foot of the judgment, it became the position that it would be necessary to introduce legislation to cure these defects.

This legislation certainly cures the first defect in that it provides a set of principles. It also cures the second defect in that it provides for a reference to the Oireachtas, if the Oireachtas wishes, to object to a particular proposal within a 21-day period. However, I argue that it more than corrects the third defect, which was a lack of ministerial involvement. I refer to the first provision in these sections in respect of both registered employment agreements, REAs, and employment regulation orders, EROs, and will cite the provision in respect of the latter as an example. It introduces firmly and clearly the principle of ministerial intervention and ministerial discretion. The section now provides that when the Labour Court engages in recommending and putting together an ERO, it must do certain things in respect of procedural matters and must take certain matters into account. Moreover, it does not simply pertain to one or two minor matters, as the details extend over four pages with definitions to follow. Moreover, some of the matters the Labour Court must take into account are subdivided into further matters. Consequently, the Labour Court, which has the expertise in this area, must do all that. For the first time, the Minister is being given the right to oversee this process and to ascertain whether the Labour Court has followed the proper procedure to the letter and has given proper consideration to everything it must consider, of which there is a multiplicity. Moreover, if anyone considers that the Labour Court has not done this, either procedurally or conceptually, then he or she can approach the Department and claim its actions were wrong. The Minister then has the right to refuse to grant the ERO, perhaps forever, or alternatively to send it back to the Labour Court with the instruction to deal with it properly before the Minister will consider it. This constitutes strong ministerial supervision, which is being introduced for the first time. There is no need for the section to go on to provide that apart from all that, the Minister also has a residual power, at his or her complete whim, to reject an ERO.

As my colleague Deputy Tóibín has noted, the people affected by this measure are those who are at the bottom of the wage scale and who need this system to protect them because for one reason or another, they are not properly represented. There has been legislation on the Statute Book since 1946 to provide them with some measure of protection. Unfortunately, as a result of a High Court decision, their protection is lessened in any event. No matter what the Minister attempts to do in this regard and with the best will in the world, the case itself and the constraints it places on the Minister lessen their protection. However, such people are entitled to a better provision than one under which not only is their protection lessened but, under a certain clause, it may be abandoned. I do not suggest the Minister, Deputy Bruton, would act in an adventurous manner. He will not get up some morning and decide to refuse to accept EROs henceforth. However, this is a power too far for the Minister. As I read its judgment, the High Court simply pointed out that as an example of the untrammelled power possessed by the recommending committees, there was no ministerial involvement. However, this legislation provides that not only will there be ministerial involvement but there will be total ministerial discretion to refuse the entire recommendation, no matter how justified it may be in reality. Regardless of whether the procedure was followed to the letter or whether the Labour Court did everything perfectly, the Minister has the residual power to simply say "No", and that is wrong.

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