Administration Legislation by Delegation—The Principles and ... - SSRN

Administration Legislation by Delegation—The Principles and Policies Test in Irish Law Neil Maddox [ BCL(NUI),B.L. Doctoral Student, University College Dublin. ] INTRODUCTION The “principles and policies” test, as laid down in Cityview Press v AnCo [ [1980] I.R. 381 . ] has been the subject of much scrutiny in recent years as challenges to delegated legislation promulgated by Ministers and administrative agencies have increased. The importance of the doctrine lies in the fact that it serves to protect the exclusive law-making function of the Oireachtas set down in Article 15.2.1° and, by extension, prevents the passage of legislation by undemocratic means. In some circles the test is regarded as ineffective in securing those democratic ideals. While this view may have some merit, it is also true that the test is capable of being flexibly and successfully applied to a variety of complex factual situations which are invariably the subject matter of litigation under Article 15.2.1° .

The Purpose of the Principles and Policies Test Article 15.2.1° states in quite explicit terms that “[t]he sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State”. The wording of the Article was intended to clearly assert the independence of the nascent Irish legislature from the parliament in Westminster. [ D.G. Morgan, The Separation of Powers in the Irish Constitution (Dublin, 1997), pp 261–262. ] It also demarcates one of the points of contact between the Oireachtas and the executive that is fundamental to our tripartite system of government. On viewing the above guarantee, the casual observer will undoubtedly note that it is subject to the large exception introduced by Ireland's accession to the European Community. That aside, when one is confronted with the volumes of domestic ministerial regulations and orders that emanate from government departments each year, it may be difficult to accept that this guarantee has any force whatsoever. Keane J. (as he was then) expressed the concern of many when he noted that: The increasing recourse to delegated legislation throughout this century in this and in the neighbouring jurisdictions has given rise to an understandable concern that parliamentary democracy is being stealthily subverted and crucial decision making powers vested in unelected officials. [ Laurentiu v Minister for Justice [2000] 1 I.L.R.M. 1 , 43. ] The Supreme Court does not admit that administrative bodies are engaged in law-making and has imported a doctrine—developed in American constitutional law—which allows an administrator, by delegation, to propagate regulations with the force of law when those regulations are of an “administrative and regulatory” nature. [ Wade notes, in an American context, that “[i]t was at one time accepted doctrine that Congress could not delegate its constitutional power to legislate … but the Executive faced with the obvious necessity of finding some constitutional justification for wide regulation making powers, the courts held that power could be delegated provided that Congress laid down some primary standard so that the agency was empowered merely to ‘fill up the details’”: Wade, “Anglo-American Administrative law: Some reflections” (1965) 81 L.Q.R. 357, 373. ] The principles and policies test seeks to preserve the strict truth of Article 15.2.1° while allowing a delegation of some powers where it would be impractical or impossible for the legislature to perform that function alone. O'Higgins C.J. laid down the test to be applied in Cityview Press v AnCo when he stated: The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious

attractions in view of the complex, intricate and ever changing situations which confront both the Legislature and the Executive in a modern State … the ultimate responsibility rests with the Courts to ensure the constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution . In discharging that responsibility, the courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. [ Supra, p. 399. Many experts believe that parliamentary control is, in reality, a fiction: Patrick McAuslan and J.F. McEldowney (eds), Law, legitimacy and the Constitution (London, 1985), p.156. ] The test is designed to prevent a Minister or administrative agency from deciding matters that are properly the concern of the Oireachtas. O'Higgins C.J. had also stated his views on the matter two years previously in Cassidy v Minister for Industry when he observed that: [ [1978] I.R. 297 . ] Under the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas and there is no other legislative authority. As a consequence where, as in this case, a statutory instrument made by a Minister is impugned, the Courts have the duty to enquire whether such instrument has been made under powers conferred by the Oireachtas. If the powers conferred by the Oireachtas on the Minister do not cover what was purported to be done, then, clearly, the instrument is ultra vires and of no effect. Equally, if the rule-making power given to the Minister has been exercised in such a manner as to bring about a result not contemplated by the Oireachtas, the Courts have the duty to interfere. [ P. 305. This statement was later approved by Murphy J. in O'Neill v Minister for Agriculture at p.553. Secondary legislation which, by implication, amends primary legislation is automatically unconstitutional under Article 15.2.1 , See Cooke v Walsh [1984] I.R. 715 ; Harvey v Minister for Social Welfare [1990] 2 I.R. 232 ; Mulcreevy v Minister for the Environment [2004] I ILRM 419 . ]

Defining Principles and Policies The phrases “principles” and “policies” are to a certain degree interchangeable but different meanings are discernable. Jowell defines policies as “broad statements of general objectives”. [ Jowell, “The legal control of administrative discretion” (1973) Public Law 178, 201. Keane J. opted for a similar definition in Laurentiu: “The ‘policy’ of a particular legislative provision is presumably an objective of some sort which parliament wishes to achieve by effecting an alteration in the law”, at 49. ] In the context of legislation, the policy would seem to be the goal of the measure, its purpose or that which it sets out to achieve. This may be express or implied. [ In The Pigs Marketing Board v Donnelly Limited [1939] I.R. 413 , at 418, Hanna J. sought and found the purpose of the impugned legislation in the absence of direct evidence in the act itself. ] The courts have found assistance in determining such goals by looking to the alteration in the law effected by the enactment of the legislation. The use of the plural implies that there may be more than one policy in a statute. This may be where the legislation has dual or multi-purpose goals. Alternatively, and far more commonly, there will be several policies or objectives in a statute of a subsidiary nature to the main guiding policy. For instance, the establishment of An Comhairle Oiliúna (AnCo: the industrial training authority) by the Industrial Training Act 1967 was a subsidiary goal to the main purpose of the legislation—the provision of training for apprentices. Thus, the courts will always look first to the purpose of the legislation. If that purpose is to confer on the Minister the power to legislate, as was held in Laurentiu , the s. will be struck down as constitutionally repugnant. Jowell further states that principles “involve normative standards by which rules might be evaluated”. [ Jowell, supra, at 201. ] In reality, the searching for principles is a search for practical guidance as to how the purposes of the legislation should be achieved. For instance, a list of factors (as were notably absent from Cityview Press ) to consider when imposing a levy would normally be

regarded as adequate guidelines. Even if the purpose of the legislation is clear and within the bounds of the Constitution , the legislature must set down some guidelines as to the manner in which that purpose should be achieved. This is not to say that every grant of discretion under an Act must be the subject of detailed guidance as this would be impractical. [ In The Pigs Marketing Board Hannah J. observed that the imposition of price controls on the pig industry is “… a matter of such detail and upon which such expert knowledge is required, that the legislature, being unable to fix a price itself, is entitled to say … we shall leave it to a body of experts”, at 422. ] In cases involving detailed administrative structures, the courts have shown a willingness to search for basic minimal guidelines in an effort to keep business which would be overly time-consuming from the Oireachtas. Furthermore, the detailed prescription of standards may be impossible if the goal of the legislation is to be achieved. [ In Laurentiu, Lynch J. dissented on the basis that a wide grant of discretion was necessary for the Minister to fulfill his role: “… to be effective the powers of control given to the executive by the Oireachtas must necessarily be very wide and very widely defined”, at 56. ] As a result, the amount of choice granted to the administrative body with regard to the implementation of the policy of the Act will vary from case to case depending on the nature or complexity of the object to be achieved. Jowell neatly describes the situation: Discretion is rarely absolute, and rarely absent. It is a matter of degree, and ranges along a continuum between high and low. Where he has a high degree of discretion, the decision maker will normally be guided by reference to such vague standards as “public interest” and “fair and reasonable”. Where his discretion is low the decision maker will be limited by rules which do not allow much scope for interpretation. [ Jowell, “Administrative discretion”, at 179. ]

Does the Minister's Discretion Equate with Policymaking? Fundamental to the principles and policies test is the view that a Minister, when making regulations which are for the purposes of giving effect to broader policies contained in the statute, is not making law. If the test is satisfied, law-making is deprived of its essential character and the Minister is merely engaged in making regulations of a purely administrative nature. Denham J. further elaborated on the rationale for the test in a case where it was held that the principles and policies had been determined in the parent European Directive : In the directives herein the policies and principles have been determined. Thus, there is no role of determining policies or principles for the Oireachtas. That being the case the rôle of the Oireachtas in such a situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as to what has already been decided … Such a sterile debate would take up Dáil and Senate time and act only as a window on Community directives for the members of the Oireachtas and the nation. [ Meagher v The Minister for Agriculture [1994] 1 I.R. 329 . This case established that, where a European Directive leaves “choice” to the National Authority as to principles and policies the Constitution dictates, the measure must be implemented by way of legislation. ] This approach assumes that the Minister, once the principles and policies have been set out in the parent statute, is incapable of engaging in policy making. Denham J. reiterated this view in Maher v Minister for Agriculture and elaborated. [ [2001] 2 I.R. 139 , at 222, 223. The decision confirmed the view that a community measure could set out the principles and policies being adopted to such a level of detail so as to allow a Minister to implement the measure by regulation as opposed to primary legislation. ] There are choices to be made within the Regulations . However, these choices are the exercise of a discretion within the principles and policies established—which have been established at European level. The discretion exercised is a limited one within the principles and policies established. [ P. 223. ]

Thus, Denham J. refused to accept that the exercise of a choice which was governed by a structure established in a policy document was the determination of policy. A difficulty arises when the courts uphold a delegation to a Minister where it seems that he is clearly exercising just such a choice as to policy. This is most apparent where practical concerns necessitate conferring a wide discretion on a regulation making body in order to give full effect to the principles and polices contained in the statute. Cityview Press is one such example and is unusual among leading cases in that the enthusiasm with which the test elucidated in the case has been applied can be contrasted with a prevailing academic view that the case was wrongly decided. Section 21 of the Industrial Training Act 1967 allowed AnCo to levy employers who were engaged in a designated industrial activity. The plaintiffs were one such employer and contended that s. 21 was an uncon stitutional delegation of legislative power as it failed to give any precise guideline as to how the levy was to be assessed. The High Court denied that a wide measure of discretion had been granted to AnCo under the Act and felt that the complexity of the administrative scheme was such as to make such a delegation wholly necessary if the act was to achieve its objects. However, McMahon J. (in the High Court) still refused to characterise the powers granted to AnCo as policy-making powers, but did implicitly accept that there may be a circumstance where it would be necessary for the Oireachtas to delegate such powers: The subject matter of regulation may be so fluid that a detailed prescription of standards could make effective administration impossible and delegated powers would have to include wide areas of judgment and of discretion. The present case does not involve those difficulties. The delegation of legislative power which is challenged by the Plaintiffs is confined to a narrow field. It confers a discretion; but it is a discretion which relates to the implementation of policy and not to the determination of policy. [ Supra, at 390. ] Of critical importance to this case was the fact that the court found a broad policy in the Act —to make provision for the training of apprentices—which limited the exercise of any powers under the legislation. There were also some guiding principles contained in s. 21 . AnCo had an obligation to consult with a relevant industrial training committee and was obligated to keep the funds collected in a separate account and apply them to meet the expenses of training apprentices. While these restrictions did little to fetter the discretion of AnCo when deciding the amount of the levy, the existence of even minimal standards was sufficient to save the section . It could then be determined if any regulations made under s. 21 offended against the intention of the Oireachtas as there was identifiable principles and policies—albeit of a minimal and minor nature—contained in the measure. The case has attracted some disapproval in academic circles. There is discomfort that such a seemingly large delegation of the law-making function could escape constitutional challenge and a feeling that the doctrine used for testing the constitutionality of legislation under Article 15.2.1° is somehow imprecise or incomplete. Hogan and White remark that the principles and policies test enunciated in Cityview Press may have been badly applied: … it may be questioned whether the court did full justice to these ringing principles in their application to the rather vague provisions of the 1967 Act . There was nothing in the 1967 Act which provided guidance as to the amount of the levy and it is not at all obvious that it did contain the appropriate principles and policies. [ GW Hogan and G Whyte (eds), J.M. Kelly: The Irish Constitution (4th ed., Dublin, 2003), p.241. ] In a similar vein Professor Casey observes that “If provisions of such vagueness can pass muster it is not easy to imagine what would not”. [ J. Casey, The Irish Constitution (3rd ed., London, 2000), p. 223. ] Of more recent interest has been the case of Laurentiu v Minister for Justice . [ See Hinds, “The Wireless Telegraphy Act 1926 After Laurentiu”, (2000) 18 I.L.T. 250. Hinds argues that the

discretion granted to the Minister to grant licenses for wireless telegraphy mirrors that of s. 5 of the Aliens Act 1935 as there are no principles and policies in the parent statute. However, she overlooks the fact that the act was intended to prevent overcrowding of the airwaves with too many broadcasters and to establish and maintain a national broadcaster and preserve its frequencies. Both policies are clear from the statute and the Minister would have to give effect to these goals whenestablishing a licensing scheme. ] This was a challenge to the Ministers legislative power to deport aliens as contained in s. 5(1)(e) of the Aliens Act 1935 . The power given to the Minister under that section mirrors very closely the power to impose a levy given to AnCo in Cityview Press . The Minister had an almost complete discretion as to which Aliens he could make a deportation order against. There were no guidelines in the Act detailing the manner in which that power should be exercised. The Supreme Court considered that the objective, and by extension the policy, of the legislation could often be discovered by examining the alteration in the law which the legislation effected. The facts of this case were unusual as the power to deport aliens, on any terms that it deemed fit, rested with the executive. The legislation could not, therefore, have been intended to create a power of deportation: that already existed. [ Supra, Keane J., at 51. ] Instead, it was to vest this power in the Minister and allow him determine the manner in which the power was to be exercised. As Keane J. observed: Undoubtedly, the designation of categories of aliens as being either immune from, or subject to, deportation at the discretion of the State and the delineation in legislative form of modifications on the exercise by the State of its powers in the area of deportation were policy decisions; but they were decisions which could henceforth be taken by the Minister. [ P. 51. It is interesting to note that the Chief Justice identified the (unconstitutional) policy of the legislation—to delegate the lawmaking function—rather than stating it had none at all. This, perhaps, gives recognition to the fact that all legislation has a purpose and to state otherwise would be illogical. In McDaid v Judge Sheehy [1991] 1 I.R. 1 a delegation of a power to impose customs duties on whatever goods and to whatever extent the Government wished was struck down in the High Court (although overturned on jus terti grounds in the Supreme Court) on similar grounds with Blayney J. observing that the power given to the government was a power to legislate, at 9. ] What then is the distinction between the powers granted in this case, which were deemed unconstitutional, and those in Cityview Press , which were upheld? In both cases, the power to designate categories (of aliens and of employers engaged in an industrial activity) and impose liabilities consequent upon that designation (deportation orders and levies) were the main features of the delegation. How then can one set of powers be regarded as policymaking and the other as purely administrative in nature? The simple answer is that the powers granted to AnCo were policy-making powers. However, a distinction does still exist between the cases. The fact that there were clearlydefined objects contained in the Industrial Training Act meant that those policymaking powers were of a subsidiary nature and were dependant for their validity on being exercised in furtherance of the main or guiding policy of the Act . The distinction is not unlike that as between the objects and powers of a private limited company. This was not a feature of the delegation in Laurentiu where the powers granted under that act were also expressed as its objects and there was no means by which to determine compliance with the will of parliament. Viewed from this perspective, Denham J.'s agreeable observations on the sterility of the Oireachtas when discernable principles and policies have already been decided take on a much dif ferent aspect. This proposition is not new and was clearly espoused in the American case of Yakus v United States , [ (1944) 321 U.S. 414 . ] approved by the American Supreme Court in Mistretti v United States , [ (1989) 488 U.S. 361 . ] which was, in turn, approved by Denham J. in Laurentiu . In Yakus , it was baldly stated that a wide measure of discretion granted to an administrative agency is by no means inconsistent with the separation of powers so long as there is something in the parent Act which guides the decision making: The essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it

directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of statutory standards and declarations of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework. [ Supra, at 424–425. ] If it is accepted that the proper application of the principles and policies test allows for subsidiary policy making by the administrator it would act as a discouragement to the unwholesome practice of policy making by stealth. The maintenance of the fiction that, in all cases, the Minister is merely joining the dots on the legislative picture, allows a swathe of Ministerial decisions as to policy to escape democratic scrutiny. The objections to the outcome of CityView Press would seem to rest on the assumption that the Oireachtas should seek to limit the discretion of an administration agency as far as possible, and prescribe detailed standards in relation to any discretion granted under a parent act. [ This may also be explainable, as Harlow and Rawlings observe, by “the familiar Diceyan idea that administrative decision taking is somehow ‘arbitrary’, particularly where a wide measure of discretion has been given”, Carol Harlow and Richard Rawlings, Law and Administration (London, 1984), p. 119. ] This is fundamentally at variance with the American jurisprudence upon which the doctrine is based. In Yakus , similar objections were raised to the Emergency Price Control Act 1942 , as it granted a wide discretion to an administrative agency to promulgate regulations fixing the price of commodities with regard to controlling the price and keeping it within acceptable levels. This was a wide discretion on a par with that granted in CityView Press , but the Court took the view that there was nothing improper in this delegation: Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers … It is free to avoid the rigidity of such a system, which might well result in serious hardship, and to chose instead the flexibility attainable by the use of less restrictive standards … Only if we could say that there is an absence of standards for the guidance of the Administrators action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed would we be justified its choice of means for effecting its declared purpose … [ Supra, at 425, 426. ]

Delegated Legislation and Constitutional Rights The recent Irish jurisprudence has followed a similar line to the American case law and the main concern of the court when looking at the exercise of a rule-making power is that the administrator is not constrained by petty bureaucratic restrictions. If the administrator grants itself farreaching powers or powers which necessarily impinge upon constitutional rights the regulations will be much more likely to be deemed ultra vires the parent act. As Murphy J. observed in O'Neill v Minister for Agriculture : [ [1998] 1 I.R. 539 . ] It has never been suggested that the power to make statutory regulations should be confined to some stereotyped administrative provisions. It may be, and I see no reason why it should not be, that regulations designed by a minister and his officials to secure a particular statutory objective would be novel and innovative and accordingly, not in their terms anticipated by the legislature. It is the scope of such regulations and above all the manner in which they affect or touch upon the property or other constitutional rights of the citizens which may raise doubts as to how far they were in the contemplation of the Oireachtas. [ Ibid, 556. ] That case concerned a regulation making-power granted to the minister under s. 3 of the of the Livestock (Artificial Insemination) Act 1947 . The Act allowed the Minister to establish a licensing system for the artificial insemination of farm animals. The Minister had established, by way of administrative decisions pursuant to s. 3 , [ This was a further ground for holding the scheme ultra vires as s. 3 granted only a regulation making power, See Keane J., at 546–547. ] a scheme whereby

the country was divided into nine areas, with one exclusive license granted to each area. Such a farreaching scheme had too many Constitutional implications and was struck down as being ultra vires the parent Act . As Murphy J. observed: The scheme manifestly affects the right of citizens to work in an industry for which they may be qualified and the rights of potential customers to avail of such potential services. It is not that there is any reason to doubt that the scheme ultimately devised by the first respondent was desirable, and may well have operated in the national interest, it is simply that such a scheme is so radical in qualifying a limited number of persons and disqualifying all others who may be equally competent from engaging in the business. It may be that such a far-reaching power could not be delegated by the National Parliament at all. Certainly I would be unwilling to accept that the Oireachtas contemplated such a far-reaching intrusion on the rights of citizens. [ P. 556. ] The latter point became relevant in the recent case of Casey v Minister for Arts, Heritage, Gaeltacht and the Islands [ [2004] IESC 14 (February 24, 2004) ] with the appellant attempting to establish a breach of his constitutional rights by the use of delegated powers which—if accepted—would necessarily have led to the conclusion that the use of the delegated power could not have been in the contemplation of the Oireachtas. The case concerned a challenge by a fisherman to the re fusal by the Minister of a license which would have allowed him to bring tourists to Skellig Michael with his fishing boat. The informal licensing scheme was implemented by administrative decisions which derived their authority from s. 16 (1) of the National Monuments Act 1930 . This allowed the Minister to regulate and limit the access of the public to the island. The policy of the legislation was clear—the protection and preservation of national monuments. As such, the appellant sought to establish that the administrative decisions which set up the licensing scheme were ultra vires the powers conferred under the legislation. The appellant submitted that the power to regulate the number of boats landing on the island was one which should have been expressly conferred on the Minister. He further submitted that the refusal of a grant of a license interfered with his right to earn a livelihood. Both arguments were rejected by Murray J. who felt that “the preservation and protection of national monuments is quintessentially of an administrative nature to be achieved by implementing policy decisions” and, furthermore, that a right to earn a livelihood “does not entitle the citizen to have access, as of right, to the property of third parties and use it for business purposes”. However, in Browne v Minister for the Marine and Natural Resources , [ [2003] IESC 39 (July 16, 2003). ] an argument based on the fact that the plaintiff's constitutional rights were infringed by delegated legislation proved successful. The plaintiff in Browne was also a fisherman and was being prosecuted for using illegal netting. The offence was indictable and was contained in the Sea Fisheries (Drift Nets) Order 1998 . The Order was made pursuant to s. 223A of the Fisheries (Consolidation) Act 1959 . It implemented European Law, but not by the most common procedure as contained in s. 3 of the European Communities Act 1972 . The latter measure contains a proviso which expressly reserves the creation of indictable offences to the national Parliament. No such provision was contained in s. 223A . Nor was there any explicit power granted to the Minister to create an indictable offence as, for example, had been contained in s. 224B . While there was no question that the Minister was indeed giving effect to the principles and policies contained in the European measure, the creation of such an offence by regulation clearly impinged upon several of the plaintiff's constitutional rights. There was a clear danger that the Minister was going beyond the intentions of the Oireachtas. If parliament had intended to allow the Minister, in the pursuit of the objectives of the legislation, to infringe the rights of the citizen in such a serious manner they would surely have explicitly set down such a power. As Denham J. observed: In view of the special role of the Oireachtas as the law-making body under the Constitution , and in view of the expressed policy on the creation of indictable offences in s. 3(3) of the Act of 1972 , any statute purporting to give power to a Minister to create an indictable offence should set out such power in plain and clear language. There should be no ambiguity. [ p. 28. ]

As no such express grant of power was made to the Minister the Order of 1998 was deemed to be ultra vires s.223A of the 1959 Act . It would seem from this series of cases that the applicant need only establish a breach of his constitutional rights by the delegated legislation in question. If such a scheme was not expressly contemplated by that legislation it would seem a certainty that the measures would have to be struck down as ultra vires the powers granted by the act.

Conclusion Delegated legislation is one of the necessities of a complex system of government. If the exclusive, and democratic, law-making function of the Oireachtas is to be preserved, it requires a legal doctrine that must balance practical necessity with the desire for democratic scrutiny of anything which resembles law-making. In one respect, the doctrine espoused in Cityview Press has been consistently applied in favour of the former. The Supreme Court, and Denham J. in particular, have repeatedly failed to accept the fact that Ministers engage in subsidiary policy-making and have denied that the national Parliament can have any useful rôle in debating such decisions once broad principles and policies have been laid down in the parent act. In many cases, the guidance given to the administrator in the parent act is only of a minimal and basic nature. Cityview Press itself establishes that the barest of principles and policies will often be sufficient to survive challenge. Ministers have sometimes had a wide discretion in implementing administrative schemes. To suggest, in such circumstances, that a parliamentary debate on the subject would be fruitless is to remove wide-ranging legislative powers from democratic scrutiny. The scales, however, have been tilted back in favour of democratic accountability by the series of recent decisions which have struck down delegated measures which have interfered with constitutional rights. Finally, the test has another point in its favour: it is flexible. While it may be argued that this is merely arbitrariness, it has created a reasonably consistent line of jurisprudence in an area where this had scarcely seemed possible. By their nature, these cases turn to a great degree on their own peculiar facts. Those facts tend to be hugely complex and infinitely varied from case to case and any doctrine which can thread a path through such situations should not be underestimated.