Birmingham v Attorney General

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date01 January 1933
Date01 January 1933

Supreme Court.

J.C.

Birmingham and Others v. Attorney-General
MICHAEL BIRMINGHAM, EDMUND COLEMANand WILLIAM FLEMING
Plaintiffs
and
THE ATTORNEY-GENERAL
Defendant.

Police - Dublin Metropolitan Police - Transfer from service of British Government to Provisional Government and to Government of Irish Free State - Amalgamation with the Gárda Síochána - Scale of pay and pensions - Compensation under Art. 10 of the Treaty - Validity of Police Pay Orders - Constabulary and Police (Ir.) Act, 1883 (46 Vict. c. 14), sects. 13, 15, 19 - Constabulary and Police (Ir.) Act, 1919 (9 & 10 Geo. 5, c. 68), sect. 4 - Government of Ireland Act, 1920 (10 & 11 Geo. 5, c. 67), sects. 9, 60, 72, 73, Sch. IX - Articles of Agreement for a Treaty between Great Britain and Ireland, Arts. 10, 17, 18 - Irish Free State (Agreement) Act,1922 (12 Geo. 5, c. 4) - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), Sch. I, Arts. 73, 77, 78, Sch. II, Arts. 10, 17, 18 - Police Forces Amalgamation Act, 1925 (No. 7 of 1925) - Provisional Government (Transfer of Functions) Order, 1922 (Stat. R. & O. 1922, No. 315) - Police Pay Orders, 1924 and 1927.

Trial of Action.

The facts were set out in the statement of claim which was as follows:—

1. The plaintiffs are members of the Metropolitan Division of the Gárda Síochána (hereinafter referred to as "the present Force"), having each and individually been transferred thereto from the Dublin Metropolitan Police under the provisions of the Police Forces Amalgamation Act, 1925. The Dublin Metropolitan Police (hereinafter referred to as "the old Force") was the Police Force established under the terms of the Act, 6 & 7 Wm. 4, c. 29, entitled"An Act for improving the Police in the District of Dublin Metropolis."

2. The plaintiff, Michael Birmingham, joined the old Force on the 11th November, 1897, and was promoted to the rank of Sergeant on the 6th September, 1912. He was promoted to the rank of Station Sergeant on the 1st April, 1924, which rank he holds in the present Force at the date hereof.

3. The plaintiffs, Edmund Coleman and William Fleming, joined the old Force on the 23rd November, 1900, and the 10th December, 1907, respectively, and hold the rank of Guards in the present Force at the date hereof.

4. The rates and scale of pay of the members of the old Force at and previous to the 6th December, 1921, were those provided for by the Dublin Metropolitan Police Pay Order, 1920, which order was made under the provisions of the Constabulary and Police (Ireland) Act, 1919. The said Act was the latest of a series of enactments providinginter alia for the betterment and readjustment of the rates and scale of pay and pensions provided for by the Constabulary and Police (Ireland) Act, 1883.

5. By the Constabulary and Police (Ireland) Act, 1883, and the various Acts amending and extending the same, the members of the old Force were granted a statutory right to the rates and scale of pay and pensions successively therein provided, but it was provided by sect. 19 of the said Act of 1883 that such statutory rights should not prevent any such member being dismissed or reduced to any lower rank or lower rate of pay on account of misconduct, or negligence in, or unfitness for, the discharge of his duties, or other reasonable cause.

6. By sect. 60 of the Government of Ireland Act, 1920, it was provided, in contemplation of the transfer of the old Force to an Irish Government then to be set up, that,intel alia, all officers and constables of the old Force who were serving on the date of transfer should after that day continue to serve on the same terms and conditions as theretofore, and should be liable to perform the same duties as theretofore, and while so serving should not receive less salaries than they would have received if the said Act had not been passed, and that any existing enactment relating to the pay or pensions of officers and constables of the old Force should, after the date of transfer, continue to apply as respects any officer or constable serving at the date of transfer.

7. It was further provided in the Ninth Schedule to the said Act of 1920 that compensation under the rules provided therein should be paid to any officer or constable of the old Force who after the date of transfer (a) retires voluntarily under the conditions thereinafter set forth, or (b) is removed or required to retire for any cause other than misconduct, and is not incapacitated for the performance of his duty by mental or bodily infirmity. One of the provisions of voluntary retirement under the said Schedule was that notice of the intention to retire might be given by the officer or constable desirous of retiring within two years from the date of transfer.

8. Compensation under the Rules contained in the said Ninth Schedule was to be based upon the number of years of service of the officer or constable entitled thereto and the salary of which he was in receipt at the date of retirement or dismissal.

9. By Article 10 of the Articles of Agreement for a Treaty between Great Britain and Ireland, hereinafter referred to as "the Treaty," which was signed on the 6th December, 1921, and which has now the force of law in Saorstát Éireann éireann, it was provided that the Government of Saorstát Éireann éireann agreed to pay compensation upon terms not less favourable than those accorded by the said Act of 1920 to members of Police Forces who were discharged by it, or who retired in consequence of the change of Government therein contemplated, and by Article 78 of the Constitution of Saorstát Éireann éireann such rights to compensation were confirmed to existing officers within the meaning of Article 10 aforesaid.

10. By paragraph 10 of the Provisional Government (Transfer of Functions) Order, 1922, dated the 1st April, 1922, the administration and control of the old Force, including the plaintiffs, was transferred to the Provisional Government, and by paragraph 7 (ii) of the said Order it was provided that each officer and constable thereby transferred should hold office by a tenure corresponding to his previous tenure.

11. By Article 77 of the Constitution of Saorstát Éireann éireann all existing officers of the Provisional Government aforesaid were transferred to and became officers of Saorstát Éireann éireannand held office thereunder by a tenure corresponding to their previous tenure. The plaintiffs and each of them were existing officers within the meaning of Articles 77 and 78 aforesaid.

12. By the Dublin Metropolitan Police Pay Order, 1924, which purported to come into force on the 1st March, 1924, and which has since been re-enacted as regards the rates and scales of pay of the plaintiffs by the Gárda Síochána Pay Order, 1927, the then Minister for Home Affairs purporting to act in exercise of the powers conferred upon him by sect. 4 of the Constabulary and Police (Ireland) Act, 1919, as adapted by the Adaptation of Enactments Act, 1922, with the concurrence of the Minister for Finance, reduced the rates and scale of pay of certain grades of members of the old Force, including the plaintiffs, from that prescribed by the Dublin Metropolitan Police Pay Order, 1920, to another and lesser scale therein set forth.

13. The plaintiff, Michael Birmingham, was employed as a Sergeant on the date of transfer from the British Government at a salary of £5 12s. 6d. per week. By reason of the Pay Order of 1924 aforesaid, his salary was reduced on the 1st March, 1924, to £4 18s. 6d. per week. On the 1st April, 1924, he was promoted to the rank of Station Sergeant at a salary of £5 per week, which salary has since been increased in accordance with the scale contained in the Pay Order of 1924 to the sum of £5 5s. 0d. per week, which is the maximum amount now payable under the said Pay Order to members of the present Force of this plaintiff's rank. Under the scale of pay in force prior to the said Pay Order of 1924 this plaintiff, at his present rank, would now be in receipt of a salary of £6 per week. By reason of the said Pay Order of 1924 and said Order of 1927 the plaintiff has suffered a reduction in his salary regardless of the fact that he is now serving in a higher rank than that in which he was employed at the date of the said Pay Order. Furthermore, he has suffered loss by way of a reduction in the basis or scale upon which he would or might be entitled to compensation as aforesaid under Article 10 of the Treaty or Article 78 of the Constitution.

14. The plaintiff, Edmund Coleman, was employed as a Constable on the date of transfer from the British Government at a salary of £4 15s. 0d. per week. In accordance with the Pay Order of 1924 aforesaid his salary was reduced on the 1st March, 1924, to £4 3s. 0d. per week, which is the maximum salary which this plaintiff can receive under the said Order in his present rank. Under the scale of pay in force prior to the said Pay Order of 1924, the plaintiff would now be in receipt of a salary of £4 15s. 0d. per week. This plaintiff has suffered loss accordingly, and also by way of a reduction in the basis or scale upon which he would or might be entitled to compensation as aforesaid under Article 10 of the Treaty or Article 78 of the Constitution.

15. The plaintiff, William Fleming, was employed as a Constable on the date of transfer from the British Government at a salary of £4 10s. 0d. per week. In accordance with the Pay Order of 1924 aforesaid his salary was reduced on the 1st March, 1924, to £3 18s. 0d. per week, and it has since been increased under the scale therein contained to £4 0s. 6d., at which salary he is still employed in the present Force. Under the scale of pay in force prior to the said Pay Order of 1924 this plaintiff would now be in receipt of a salary of £4 12s. 6d. per week. This plaintiff has suffered loss accordingly, and also by way of a reduction in the basis or scale upon which he would or might be...

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2 cases
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