Birmingham v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1933
• Date: 01 January 1933
• Court: Supreme Court (Irish Free State)

Birmingham and Others v. Attorney-General

MICHAEL BIRMINGHAM, EDMUND COLEMANand WILLIAM FLEMING

Plaintiffs

and

THE ATTORNEY-GENERAL

Defendant.

Supreme Court.

J.C.

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.

Plaintiffs, formerly members of the Dublin Metropolitan Police, had been transferred from the service of the British Government to that of the Provisional Government and subsequently to that of the Government of the Irish Free State. The Dublin Metropolitan Police were subsequently amalgamated with the Gárda Síochána by the Police Forces Amalgamation Act, 1925. Plaintiffs brought an action against the Attorney-General claiming 1, a declaration that they were entitled during the continuance of their employment as police officers to a scale of salaries and pensions not less than those at which they were respectively employed and entitled to prior to the date of their transfer from the British Government, or, alternatively, from the Provisional Government, and to an account and payment of all arrears of pay based on this declaration; 2, in the alternative, for a declaration that the Dublin Metropolitan Pay Order, 1924, and the Gárda Síochána Pay Order, 1927, in so far as they purported to reduce the salaries and pensions of the plaintiffs in the absence of their consent, amounted to a discharge within the meaning of Art. 10 of the Treaty, or alternatively, that the retirement of the plaintiffs, in consequence of such reduction, amounted to a retirement in consequence of the change of Government within the meaning of the said Art. 10; 3, for a declaration that, in the event of the discharge or retirement of any of the plaintiffs under circumstances within the meaning of the said Art. 10, they were entitled to compensation on terms not less favourable than those accorded by the Government of Ireland Act, 1920, such compensation to be based on the salaries in operation immediately prior to the date of transfer from the British Government, or, alternatively, from the Provisional Government; 4, for a declaration that, in addition to the compensation claimed in the third prayer hereto, plaintiffs were entitled to be paid a sum equal to the difference between the total amount of salary which they would respectively have received since the 1st March, 1924, but for the said Pay Orders of 1924 and 1927, including such additional amount as would have been received by any of the plaintiffs by reason of promotion, and the total amount of salary actually received by each respectively since the said date.

Meredith J. held that the case was governed by his previous decision in Cahill v. Attorney-General[1925] 1 I. R. 70, and dismissed the action.

On appeal to the Supreme Court the appeal was dismissed.

The Judicial Committee refused an application for leave to appeal from the decision of the Supreme Court.

Statutes and Orders relating to the pay and pensions of the police, the scope and effect of the Provisional Government (Transfer of Functions) Order, 1922, and Arts. 10, 17 and 18 of the Articles of Agreement for a Treaty between Great Britain and Ireland, considered by the Supreme Court.

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...