A Constitutional Crisis in a Teacup: The Supremacy of EC Law in Ireland

Abstract

The recent decision of the Irish High Court in Minister for Justice, Equality & Law Reform & Commissioner of An Garda Siochana v. Director of Equality Tribunal might at fi rst glance appear as the unlikely source of a constitutional crisis. In fact, however, the decision may represent the most recent instance of a threat to the supremacy of European Community (EC) law in Ireland, or at the least, a decision of extraordinary incongruity to litigants seeking to rely upon EC law. The decision of J. Charleton concerned a ‘Henry VIII’ clause, whereby secondary legislation had the effect of amending primary legislation, similar to the famous ‘Metric Martyrs’ case in the United Kingdom. In proceedings before the Irish Equality Tribunal the subject of judicial review proceedings before Charleton, a confl ict arose between primary and secondary legislation, raising the question as to whether the Tribunal was entitled in effect to set aside a statutory instrument, by virtue of the operation of EC law. A complicating factor in the case is the interpretation by Charleton of a recent decision of the Court of Justice on the powers of quasi-judicial bodies to apply the doctrine of direct effect, but not supremacy, resulting in what is suggested here to be a most incongruous outcome.