Legal Aid and Quasi-Judicial Bodies Post-Zalewski

Hugh Gallagher


Following continued campaigning and lobbying,[1] the Department of Justice has committed to a review of the Civil Legal Aid Scheme, as part of its current strategic objective to ‘improve access to justice and modernise the courts system’.[2] Initial action in furtherance of this project has been positive, for example the exclusion of Housing Assistance Payments in calculating entitlement to civil legal aid.[3] However, within this review it is necessary to consider the position of quasi-judicial statutory bodies for the future of civil legal aid, particularly following the decision of the Supreme Court in Zalewski v Adjudication Office & ors [2021] IESC 24.

Zalewski and Article 37

Zalewski concerned a challenge to the constitutionality of the Workplace Relations Commission (WRC), established to perform functions including adjudicating on disputes under employment legislation,[4] on the basis that it was engaged in the administration of justice, an exercise generally reserved for the judiciary within the courts under Article 34.[5] This followed Mr Zalweski’s unsuccessful claim for unfair dismissal in the WRC, the subsequent appeal in the High Court which sought to have this decision set aside and a declaration of unconstitutionality on the afore-mentioned grounds.[6]

The Supreme Court, by a narrow 4:3 majority, found that the WRC was engaged in the administration of justice but it was constitutionally permissible on account of the ‘saver’ contained in Article 37,[7] which states ‘nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature’. The majority judgement, delivered by O’Donnell J, consequently held that the requirement that all hearings be held otherwise than in public and the absence of a provision for the administration of an oath for those giving evidence to be inconsistent with the Constitution.[8] Following this decision, the Minister for Business, Employment and Retail stated that emergency legislation shall be drafted to introduce the necessary procedural amendments to ensure that the WRC can ‘build on its track record of delivering a fair, simple, cost effective and user-friendly service for employers and employees’.[9]

In the course of his judgement, O'Donnell J provided thorough discussion of both the administration of justice and the function of Article 37 which this article views as highly significant for the future of quasi-judicial bodies, and consequently civil legal aid, within this jurisdiction. In finding that the WRC’s operation was engaged in the administration of justice O’Donnell J rejected the possibility of ‘a single infallible litmus test’ for judicial power, favouring a general approach including a flexible application of the McDonald test and the broader observations in Lynham and State (Shanahan).[10] Notably O’Donnell J observed, in relation to the limb of the McDonald test concerning ‘the making of an order by the court which, as a matter of history, is an order characteristic of courts in this country’, that ‘[i]t would be a narrow and self- defeating approach … to find that a provision that comprehensively satisfied these features was … not the administration of justice because the form of order made in the proceedings was something novel’.[11] This pragmatic approach to the McDonald test and proper understanding of the administration of justice, moving away from ‘a canonical checklist for the identification’ thereof,[12] may potentially allow for a wider scope recognising the administration of justice in quasi-judicial statutory bodies similar to the WRC.

This is not to imply that a sudden expansive understanding and ‘jealously guarded’ approach to the constitutional assignment of the administration of justice will commence.[13] Indeed, O’Donnell J’s findings regarding Article 37 maintain and reinvigorate the continued pragmatism of the judicial branch in not operating to hinder the development of quasi-judicial statutory bodies.[14] In his view, Article 37 permits ‘the administration of justice which means, at a minimum, a State-supported decision-making function capable of delivering a binding and enforceable decision’.[15] He further expressed serious concerns as to the possibility that Article 37 be ‘shrunk almost to vanishing point’ resulting in ‘a stark binary choice’ in an area which requires flexibility.[16] As observed by McMahon J, and quoted with approval by O'Donnell J, ‘Article 37 had no counterpart in the Constitution of Saorstát Éireann and in my view introduction of it to the Constitution is to be attributed to a realisation of the needs of modern Government’ which necessitates ‘many regulatory Bodies and those Bodies can not function effectively under a rigid separation of powers’.[17] This recognised, O’Donnell J qualified Article 37’s function by considering the functions and powers of the WRC concluding its operation was permissibly ‘limited’.[18]  Considered thusly, O'Donnell's reading of Article 37 harkens to judicial efforts to ensure that the Constitution facilitates governance rather than impedes it.

It should be noted that MacMenamin J offered a compelling dissent regarding this issue of limitations on the WRC,[19] and commentary has expressed skepticism as to the conclusivity of O’Donnell J’s interpretation of ‘limited’ in this context,[20] but at present it remains the current primary authority. Therefore, following Zalewski it seems apparent that the expansion of quasi-judicial statutory bodies engaging in the administration of justice is probable and constitutionally facilitated given O’Donnell J’s reading of Article 37.

Implications for Civil Legal Aid

Free Legal Advice Centres (FLAC) and Community Law & Mediation (CLM), have continually highlighted the limitations within the current system of civil legal aid, provided by the Legal Aid Board under the Civil Legal Aid Act 1995, regarding employment and equality claims before the WRC.[21] This is a blanket exclusion, accounting in no way for ‘the complexity or sensitivity of the issue, the capacity of the person to represent him/herself and the resources of the individual’.[22] CLM have noted the major barriers this creates for vulnerable persons seeking to enforce their employment rights,[23] and FLAC Chief Executive Eilis Barry commenting that ‘[c]omplaints before the Workplace Relations Commission are excluded from the civil legal aid system … [a]s a result, too few employment equality cases ever see the light of day when the complainant cannot afford representation’.[24]

Compounding the lack of civil legal aid provision is the fact that generally quasi-judicial statutory bodies, including the WRC,[25] may not engage in awards of costs nor do they fall under the remit of the Office of Legal Cost Adjudicators.[26] For example, Mr Zalewski was awarded an order for his full costs in the High Court and the Supreme Court,[27] while receiving nil for his proceedings in the WRC.  In certain circumstances practitioners may be motivated by the possibility of an award of costs to pursue cases with clients of low-financial means, or indeed act in reliance on this scheme to facilitate their charitable venture. Hence, the curious position emerges where cases taken before the High Court, Court of Appeal, and Supreme Court, with the bare possibility of an award of costs, retain a unique form of desirability whereas before a quasi-judicial statutory body the same case becomes decisively less appealing. This is highly regrettable, as it deprives the possibility of an opportunity for vulnerable parties to avoid shouldering onerous and prohibitive costs and thereby further inhibiting access to justice in this area.

This becomes highly concerning, in the author’s view, when one considers the afore-discussed likelihood that the operation of quasi-judicial statutory bodies has possibly received broadened constitutional permissibility and will continue to expand at a potentially accelerated rate. To continue with the present example, the intention in creating the WRC ‘was to remove lawyers from the workplace disputes process’, which in practice has not manifested with employers instead engaging legal representation creating serious concerns from an ‘equality of arms and natural justice’ point of view.[28] Arguably, this allows for a situation wherein employers hire those with low financial means, strategically violate their employment rights, rely on this inequality of arms facilitated in large part through the absence of civil legal aid, and abuse the dispute resolution system of the WRC to their advantage. However, the general desirability of similar services for facilitating the resolution of disputes, within a ‘fair, simple, cost effective and user-friendly service’,[29] in other areas is virtually self-evident. The utility they may provide is difficult to contest, but in purporting to operate as a less formal and accessible alternative to the courts, these prospective quasi-judicial bodies risk the segregation of legal disputes, one which is distinctively rooted in the absence of provision for civil legal aid therein. Rather than facilitating ease of access to the resolution of legal disputes, the future of quasi-judicial statutory bodies without civil legal aid risks compromising access to justice for disadvantaged parties.


The decision in Zalewski foreshadows the likely further expansion of quasi-judicial statutory bodies in Ireland, and a broadened range of permissibility for the administration of justice outside of courts by judges on account of O’Donnell J’s conclusions regarding Article 37. In response, this article has sought to elucidate the intuitive proposition that it is the administration of justice which ought to be considered a determinative factor in the upcoming review of the civil legal aid scheme. To continue narrowing the provision of civil legal aid to the practical exclusion of quasi-judicial bodies risks the exacerbation of pre-existing inequality and partitioning of the legal system for vulnerable parties, a concern which is particularly acute in the context of employment disputes and the WRC. Consequently, this article would echo the appeals of FLAC for a ‘root and branch’ review of the civil legal aid system,[30] and advocate for one fitting the realities of the Irish regulatory state through its provision before quasi-judicial statutory bodies such as the WRC.

[1] ‘FLAC welcomes the announcement of Civil Legal Aid System review’ (FLAC, 22 February 2021) <<>> accessed 3 June 2021.

[2] Department of Justice, Justice Plan 2021 (2021) 6; 23 <<>> accessed 3 June 2021.

[3] ‘Housing assistance payment to be excluded from civil legal aid calculations’ (Irish Legal News, 1 June 2021) <<>> accessed 3 June 2021.

[4] Workplace Relations Act 2015, s. 41, 42, 43, 44, 45 and 46.

[5] Zalewski v Adjudication Office & ors [2021] IESC 24 (O’Donnell J) [1].

[6] ibid [3-10].

[7] ibid [110].

[8] Zalewski (n 5) [148].

[9] Department of Enterprise, Trade and Employment Minister receives Orders of the Supreme Court in the ‘Zalewski Case’ (2021) <<>> accessed 3 June 2021.

[10] Zalewski (n 5) [92] [96]; McDonald v. Bord na gCon [1965] I.R. 217; Lynham v. Butler (No. 2) [1933] I.R. 74; State (Shanahan) v. Attorney General [1964] I.R. 239.

[11] McDonald v. Bord na gCon [1965] I.R. 217; Zalewski (n 5) [92] [96].

[12] Zalewski (n 5) [75]

[13] Lynham v. Butler (No. 2) [1933] I.R. 74.

[14] Zalewski (n 5) [90].

[15] Zalewski (n 5) [90].

[16] ibid [129].

[17] Zalewski (n 5) [130]; Madden v. Ireland (Unreported, High Court, McMahon J., 22 May 1980).

[18] Zalewski (n 5) [116-117].

[19] Zalewski (n 5) (Mac Menamin J) [90].

[20] Law Reform Commission, ‘Webinar: Quasi-Judicial Decision Making Post-Zalewski’ (Dr Laura Cahillane, 2021) <<>> accessed 3 June 2021.

[21] ‘FLAC Submission to The Workplace Relations Commission on the “Consultation Paper on Remote Hearing and Written Submissions Dealing with Adjudication Complaints During the Period of Covid-19 related Restrictions”’ (FLAC, April 2020) 9 <<>> accessed 3 June 2021; ‘Annual Report 2018’ (CLM, 2019) 4 <<>> accessed 3 June 2021; ‘Annual Report 2019’ (CLM, 2020) 32 <<>> accessed 3 June 2021.

[22] ‘FLAC Submission to The Workplace Relations Commission on the “Consultation Paper on Remote Hearing and Written Submissions Dealing with Adjudication Complaints During the Period of Covid-19 related Restrictions”’ (FLAC, April 2020) 9 <<>> accessed 3 June 2021.

[23] ‘Annual Report 2018’ (CLM, 2019) 4 <<>> accessed 3 June 2021; ‘Annual Report 2019’ (CLM, 2020) 32.

[24] Órla Ryan, ‘'She was left vulnerable': 64-year-old woman awarded €10,000 after being fired over age and illness’ (, 26 June 2020) <<>> accessed 3 June 2021.

[25] Richard Grogan, ‘Bringing Claims to the Workplace Relations Commission’, 23 November 2020 <<>> accessed 3 June 2021.

[26] Citizens Information, ‘Office of the Legal Costs Adjudicators’, 13 March 2021 <<>> accessed 3 June 2021.

[27] Zalewski v Adjudication Office & ors [2021] IESC 24 (The Court) [13].

[28] ‘WRC procedures 'barrier' to low-paid workers – CLM’ (Law Society Gazette, 19 October 2020) <<>> accessed 3 June 2021.

[29] Department of Enterprise, Trade and Employment Minister receives Orders of the Supreme Court in the ‘Zalewski Case’ (2021) <<>> accessed 3 June 2021.

[30] FLAC (n 1).

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