Cahill v Attorney General of the Irish Free State

• Jurisdiction: Ireland
• Judgment Date: 09 February 1925
• Date: 09 February 1925
• Court: High Court (Irish Free State)

Cahill v. Attorney-General.

JOHN CAHILL and Others

and

THE ATTORNEY-GENERAL OF SAORSTÁT saorstátÉIREANN éireann, THE MINISTER FOR HOME AFFAIRS OF SAORSTÁT saorstátÉIREANN éireann, and THE MINISTER FOR DEFENCE OF SAORSTÁT saorstátÉIREANN éireann

Compensation - Dublin Metropolitan Police - Transfer from service of British Government to Provisional Government and Government of the Irish Free State (Saorstát Éireann éireann) - Date of transfer - Rights of promotion, pay, and compensation on retirement - Government of Ireland Act, 1920 (10 & 11 Geo. 5, c. 67), sects. 9 (1), 55 (1), 60, Sch. 9 - Articles of Agreement for a Treaty between Great Britain and Ireland, Art. 10 - Irish Free State (Agreement) Act, 1922 (12 Geo. 5, c. 4), Schedule, Art. 10 -Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1of 1922), Schedule I, Arts. 73, 77, and 78, Schedule II, Art. 10 - Constitution of Saorstát Éireann éireann as an original source of jurisdiction - Effect of British legislation after April 1, 1922 - Provisional Government (Transfer of Functions) Order, 1922 (Stat. R. & O., 1922, No. 315).

Plaintiffs, members and ex-members of the Dublin Metropolitan Police, claimed in an action against the Attorney-General and others a series of declarations (on behalf of themselves and other members of their class) as to their rights under Art. 10 of the "Articles of Agreement for a Treaty between Great Britain and Ireland" (hereinafter referred to as "the Treaty") and under the Constitution of the Irish Free State in respect of promotion, pay, and compensation on retirement.

By the said Art. 10 "the Government of the Irish Free State agrees to pay fair compensation on terms not less favourable than those accorded by the Government of Ireland Act, 1920, to . . . members of police forces . . . who are discharged by it or who retire in consequence of the change of Government effected in pursuance hereof."

By Art. 77 of the Constitution of the Irish Free State every existing officer of the Provisional Government (with certain exceptions) at the date of the coming into operation of the Constitution was on that date transferred to and became an officer of the Irish Free State, holding office by a tenure corresponding to his previous tenure. Art. 78 secured to such existing officers transferred from the British Government the benefit of the said Art. 10 of the Treaty.

It was conceded that the plaintiffs were "existing officers" within Art. 77 of the Constitution.

Held, as to promotion, that the discretion of the Chief Commissioner of Police has not been made subject to review in the Courts by the Treaty, or by the Constitution, or otherwise.

Held, as to pay, that plaintiffs were not entitled to a declaration of irreducibility of salary after their transfer to the Government of the Irish Free State. Conditions as to salary are not a matter of "tenure" within Art. 77 of the Constitution, and the provisions of the Government of Ireland Act, 1920, are inapplicable.

Held, as to compensation on retirement, that plaintiffs were entitled to a declaration as to the date of the "day of transfer" (determining the date for ascertaining "existing enactments") under the law relating to retirement of members of the Force in consequence of the change of Government; that that date was April 1, 1922 (the date agreed upon between the Irish and British Governments under the Provisional Government (Transfer of Functions) Order, 1922); that the expression "who retire in consequence of the change of Government" in Art. 10 of the Treaty must be given its full meaning; that the question as to such retirement is one to be decided on the facts and circumstances of each case, and that the Rules as to compensation contained in Sch. 9 of the Government of Ireland Act, 1920, are (to the exclusion of the "statutory conditions" in that Schedule) the entire"terms" referred to in Art. 10 of the Treaty.

Held, further, that the Constitution of the Irish Free State must be recognised by the Courts as an original source of jurisdiction; that since April 1, 1922, the repeal by the British Parliament of an Act extending to the Irish Free State, including the partial repeal of the Government of Ireland Act, 1920, could not affect the question as to whether or not the Act continued to be in force in the Irish Free State; and, accordingly, that such, if any, of the provisions of that Act as are not inconsistent with the Constitution of the Irish Free State were adopted into the code of law of the Irish Free State under Art. 73 of the Constitution.

Meaning of "officer" and "tenure" discussed.

Plaintiffs, who were certain members and ex-members of the Dublin Metropolitan Police Force, brought this action against the Attorney-General, the Minister for Home Affairs, and the Minister for Finance, claiming, on behalf of themselves and their class, a series of declarations as to their rights under Art. 10 of the "Articles of Agreement for a Treaty between Great Britain and Ireland" (set out in the Second Schedule to the Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), and in the Schedule to the Irish Free State (Agreement) Act, 1922 (12 Geo. 5, c. 4)), and under Arts. 77 and 78 of the Constitution of the Irish Free State (set out in the First Schedule to the Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922)), and in the First Schedule to the Irish Free State Constitution Act, 1922 (13 Geo. 5, Sess. 2, c. 1).

By the Irish Free State (Agreement) Act, 1922 (12 Geo. 5, c. 4), which was passed on the 31st March, 1922, it was provided (sect. 1, sub-sect. 1) that the Articles of Agreement for a Treaty between Great Britain and Ireland set forth in the Schedule to the Act should have the force of law as from the date of the passing of the Act; and by sub-sect. 2, for the purpose of giving effect to Article 17 of the said Agreement, Orders in Council might he made transferring to the Provisional Government established under that Article the powers and machinery therein referred to (i.e. the powers and machinery requisite for the discharge of the duties of the Provisional Government). Pursuant to this power, the Provisional Government (Transfer of Functions) Order, 1922 (Statutory Rules and Orders for 1922, No. 315), was made, the material clauses of which are referred to in the judgment of Meredith J.

By Article 10 of the said "Articles of Agreement" (hereinafter referred to as "the Treaty") it is provided that "the Government of the Irish Free State agrees to pay fair compensation on terms not less favourable than those accorded by the Act of 1920 [the Government of Ireland Act, 1920] to judges, officials, members of police forces, and other public servants who are discharged by it or who retire in consequence of the change of Government effected in pursuance hereof . . ." The terms of compensation accorded by the Government of Ireland Act, 1920 (10 & 11 Geo. 5, c. 67), are contained in sect. 60 of that Act (1), and by sub-sect. 4 of that section "the provisions as to compensation contained in the Ninth Schedule to this Act shall apply with respect to the officers and constables of the Dublin Metropolitan Police and of the Royal Irish Constabulary who are serving at the day of transfer."

By Article 77 of the Constitution of the Irish Free State it is provided that "every existing officer of the Provisional Government at the date of the coming into operation of this

Constitution (not being an officer whose services have been lent by the British Government to the Provisional Government) shall on that date be transferred to and become an officer of the Irish Free State (Saorstát Éireann éireann), and shall hold office by a tenure corresponding to his previous tenure." And by Article 78"every such existing officer who was transferred from the British Government by virtue of any transfer of services to the Provisional Government shall be entitled to the benefit of Article 10 of the Scheduled Treaty."

The plaintiffs claimed the following declarations:—

1. A declaration that they, as members of the Dublin Metropolitan Police Force, are "existing officers" within the meaning of Art. 10 of the Treaty and Arts. 77 and 78 of the Constitution of the Irish Free State.

2. A declaration that, under the provisions of the Government of Ireland Act, 1920, the said Irish Free State Constitution, and the Treaty, the plaintiffs, while continuing to serve under the Irish Free State, are entitled, while performing the same duties as prior to the said Government of Ireland Act, to receive salaries on a scale not less than that in force at the date of the transfer of plaintiffs to the service of the Irish Free State.

3. A declaration that the plaintiffs are entitled, while serving under the Irish Free State as aforesaid, to receive pay according to a scale not less than the scale in force at the date of their transfer from the British Government.

4. A declaration that the Dublin Metropolitan Police Pay Order, dated 22nd February, 1924, is ultra vires and inoperative so far as it purports to reduce the plaintiffs' salaries.

5. A declaration that the Dublin Metropolitan Police Pensions Order of 22nd February, 1924, does not affect or alter the basis on which compensation payable to the plaintiffs is to be determined on their retirement by reason of the change of Government effected in pursuance of the said Treaty.

6. A declaration stating what the date of the "day of transfer" is under the existing enactments relating to the retirement of members of the Force entitled to retire in consequence of a change of Government.

7. A declaration that the members of the Force who were serving at the day of transfer and continued to serve after that date had the same right to promotion and to increased pay, according to years of completed service and rank, as if no change had taken place by the...