The dubious legality of the second Employment Control Framework

moratoriumOn 26 March 2009, the Minister for Finance confirmed that the Government had decided to implement a moratorium on public service recruitment, precluding recruitment, promotion, renewal of fixed-term contracts, or payment of an allowance for the performance of duties at a higher grade. The standard letter sent to the various government departments emphasised that exceptions to this principle would arise only in very limited circumstances and would require the prior sanction of the Minister for Finance. There were additional rules for Education and Health, and these were supplemented for the third level sector by a controversial Employment Control Framework. That framework has now run its course, but news has seeped out over the course of the weekend that, in one of his last acts before leaving office, Brian Lenihan, the outgoing Minister for Finance, last week sanctioned a successor Employment Control Framework. It has been been much derided on Twitter at #ecf11, and it has drawn a chorus of detailed criticism from Des Fitzgerald, Ferdinand von Prondzynski, Colm Kearney, Paul Walsh, Dermot Frost, and Donncha O’Connell. For a bunch of academics, the unanimity is extraordinary. All are agreed that this new Framework is a thoroughly bad idea. I agree too, but I would go further. I think that it is also of dubious legality.

At least two questions arise. First, did the Minister for Finance have the legislative authority to sanction the Framework. Second, even if he did, is the Framework a valid exercise of that authority.

As to legislative authority, it is important that the Framework is the work of the Minister for Finance rather than of the Higher Education Authority (HEA), since staffing guidelines issued by the HEA are not binding on the universities (see section 50(2) of the Universities Act, 1997; also here). The most likely basis in the 1997 Act for the Employment Control Framework is provided by section 25(4) (also here), which provides:

… there shall be paid by a university to the employees of that university, such remuneration, fees, allowances and expenses as may be approved from time to time by the Minister [for Education] with the consent of the Minister for Finance.

The role of the Minister for Finance under this section is to consent to a decision made by the Minister for Education. Even if the realpolitik – especially in the current financial climate – is such that the Minister for Finance is actually making the decision rather than merely consenting to it, that doesn’t change the fact that the section requires the consent of both Ministers. The text of the Framework doesn’t actually say what its provenance is, but Twitter ascribes it to the Minister for Finance with nary a reference to the Minister for Education. If that is it the case, then section 25(4) does not provide it with legislative justification, since that requires the involvement of both Ministers.

Even if both Ministers were involved in promulgating the Framework, it may go further than section 25 permits. As the words of that section which I emphasised in bold above make clear, it only deals with payment to employees of remuneration, fees, allowances and expenses. It does not, on its face, seem to cover recruitment or promotion, let alone other terms and conditions of employment, to say nothing about compelling the alignment of university research with specific aspects of national policy. Any argument that these matters are sufficiently connected with payment that they can be brought within an expansive interpretation of section 25(4) is precluded by section 14(1) of the Act (also here). Section 14 provides that a university is entitled “to regulate its affairs in accordance with its independent ethos and traditions and the traditional principles of academic freedom”, and that

if, in the interpretation of this Act, there is a doubt regarding the meaning of any provision, a construction that would promote that ethos and those traditions and principles shall be preferred to a construction that would not so promote.

Hence, any ambiguity in section 25(4) should be resolved by means of a construction that would promote the autonomy of universities rather than the micro-management of their affairs represented by the Framework.

For these reasons, either there are serious questions about whether section 25(4) is in fact a sufficient legislative basis for the Framework, or the legislative basis is something other than section 25 (in which case I would be grateful if a kind reader would bring it to my attention).

Even if there is sufficient legislative authority in section 25 or elsewhere on which to sanction the Framework, the second main issue that arises is whether the Framework represents a valid exercise of that authority. Decisions of Ministers are subject to the general principles of judicial review. Depending on the reasons which might be given to support the Framework and the effects that it is likely to have in practice, it might well be challenged on the grounds that irrelevant or illegitimate factors were taken into account (see, eg, Murphy v Flood [2010] IESC 21 (21 April 2010). For example, Des Fitzgerald is not alone in pointing out that key aspects of the Framework are tied into the Smart Economy Agenda, which does not seem to me to be a legitimate consideration in the context of section 25 of the Act. Again, the Framework might well be challenged on the grounds that it is irrational or disproportionate (see, eg, Meadows v Minister for Justice Equality and Law Reform [2010] IESC 3 (21 January 2010)). For example, Ferdinand von Prondzynski considers that the Framework is plainly irrational (he calls it crazy, ludicrous, destructive, mad). Moreover, I do not think that the Framework is proportionate to the legitimate aims that it seeks to achieve; in particular, I think that there are many far less restrictive means to achieve its aims. The purpose of the Framework seems to have been set out in its first paragraph:

Under the National Recovery Plan 2011-2014, and in accordance with the Programme of Financial Support for Ireland agreed with the EU/IMF, the Government is committed to reducing the cost of the public sector paybill by, inter alia, reducing public sector numbers to 294,700 by the end of 2014, equating to an average annual reduction of approximately 3,300 in the number of serving public servants over the next 4 years.

The whole tenor of the online discussion over the weekend was that the level of control envisaged by the Framework is far more restrictive than it needs to be to meet this objective. Moreover, Colm Kearney outlines many of the grave and far-reaching financial and practical problems to which it will give rise. If control of university pay does not require the detail of this Framework, if that aim can be achieved by far less restrictive means than those envisaged in the Framework, then it is disproportionate and open to legal challenge.

Finally, even if the Framework is a valid exercise of a statutory power, that does not mean that every individual element of it is valid. As Ferdinand points out, the Framework “provides that non-compliance will be punished by financial penalties in the allocation of annual grants, something that is specifically prohibited under the Universities Act 1997”. Other elements may also be inconsistent with the 1997 Act or other legislation.

Over the course of the next few weeks, the third level sector will consider a great many responses to the Framework. Dermot Frost has called on the university sector as a whole to stand up against the extension of the Framework; he and Donncha O’Connell have called on the new Minister for Education to rescind the Framework (if it’s valid, then that Minister’s withdrawal would require the consent of the Minister for Finance); and Paul Walsh has urged universities to consider unilateral declarations of independence from government (a course which I have already considered on this blog here and here). They might also like to consider taking a legal action against the Framework.

It is time for a moratorium on bad ideas. The first bad idea to be brought within that moratorium ought to be the Employment Control Framework. It should not have to take a legal challenge to ensure this outcome; but if it does, then the analysis here suggests that the Employment Control Framework is constructed upon shaky legal foundations.

Update: Stephen Kinsella adds his voice to the chorus of condemnation.