O'Connell v Solas

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date24 April 2017
Neutral Citation[2017] IEHC 242
CourtHigh Court
Docket Number[No. 2015 No. 4715 P]
Date24 April 2017
BETWEEN
FERGAL O'CONNELL
PLAINTIFF
AND
SOLAS
DEFENDANT

[2017] IEHC 242

Humphreys J.

[No. 2015 No. 4715 P]

THE HIGH COURT

Health – Safety, Health and Welfare at Work (Quarries) Regulations 2008 – Safety, Health and Welfare at Work (Construction) Regulations 2013 – Imposition of ongoing condition for grant of registration cards

Facts: The plaintiff sought a declaration that the defendant was not entitled to place the relevant requirement of reassessment for the renewal of the plaintiff's registration cards under the relevant Regulations. The plaintiff asserted that the defendant did not have the authority and jurisdiction to impose such requirements or conditions.

Mr. Justice Richard Humphreys granted a declaration that the defendant was not entitled to renew the plaintiff's registration cards under the Safety, Health and Welfare at Work (Quarries) Regulations 2008 or Safety, Health and Welfare at Work (Construction) Regulations 2013 to impose a requirement that the plaintiff should either self-assess or reassess for requisite practical experience as a condition of such renewal. The Court held that the imposition of condition was an executive function and there was no evidence that the function had been delegated by the executive to the defendant. The Court held that the 2008 and 2013 Regulations provided that qualification was a separate head from ongoing competence; the former was a matter within the defendant's discretion while the latter being the exclusive function of the executive. The Court held that if the Court were to allow qualification to depend upon the post-award ongoing experience, self-certification, it would put a restriction of the rights of the qualification holder and would tend to limit their free movement within the EU.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of April, 2017
1

The plaintiff has provided drilling and blasting services to contractors engaged in construction and quarrying in Ireland and the U.K. over the past twenty years.

2

Prior to 2008, there was no statutory requirement for persons engaged in such activities, referred to as ‘ shotfiring’, to be in possession of particular qualifications. A requirement to hold a registration card in order to engage in shotfiring was introduced by the Safety, Health and Welfare at Work ( Quarries) Regulations 2008, and also included in the Safety, Health and Welfare at Work (Construction) Regulations 2013.

3

Reg. 2(3) of the 2008 regulations and reg. 2(4) of the 2013 regulations require the defendant, a statutory agency in succession to FÁS (by virtue of the Further Education and Training Act 2013), to issue registration cards in compliance with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications.

4

Schedule 1 to the 2008 regulations and sch. 1 to the 2013 regulations specify what are called the ‘ requirement’ (singular) for the grant of registration cards, which amount to possession of the appropriate FETAC awards (now QQI awards under the Qualifications and Quality Assurance (Education and Training) Act 2012) or corresponding awards from another Member State. Such FETAC awards are granted on ‘ completion’ of training as set out in each schedule. Para. 1(1) of sch. 1 to the 2008 regulations therefore simply says that ‘[ t]he requirement for the issue of a FETAC award under the Quarries Skills Certification Scheme … is successful completion of training under the Scheme in any of the following tasks: … (n) shotfiring …’.

5

It is not in dispute, and is clearly apparent from correspondence issued by the defendant, that the plaintiff has indeed completed the appropriate training, obtained the appropriate FETAC awards and was then issued with registration cards under the 2008 and 2013 regulations having completed the sole ‘requirement’ in that regard. While of course under s.18(a) of the Interpretation Act 2005, singular includes plural and vice versa, that section cannot apply where the context otherwise requires, as such an approach would remove the entitlement of the legislature to refer meaningfully to singular or plural quantities at all. The context does not favour such an interpretation here. There is only one requirement specified in sch. 1. Reading ‘ requirement’ as ‘ requirements’ is nonsensical where only one requirement is expressed.

6

It was further conceded by Mr. Remy Farrell S.C. (with Mr. Ronan Kennedy B.L.) in the course of an able submission for the defendant, that the FETAC awards obtained by the plaintiff were not time-limited.

7

However, the registration cards issued to the plaintiff are limited in time to a five-year period. The defendant originally intimated that the requirements for on-site practical assessment would be put in place prior to the renewal of the registration cards. But, on 17th January, 2017, just before the hearing date of 19th January, 2017, the defendants adopted a revised policy whereby a card holder would have to self-certify that he or she had the appropriate experience to renew the card, in particular that he or she had engaged in at least six blasting operations within the previous two years. The defendant would then audit such self-certifications. A card-holder who is not able to meet the experience requirement as laid down by the defendant would be required to be reassessed.

8

I heard oral evidence from the plaintiff, who accepted that when his cards were scheduled to fall for renewal in March, 2017 and August, 2018, he will likely be in a position to self-certify under the requirements as they now stand. However, he objected to being required to so self-certify as to his experience for the purposes of renewing the card, and essentially contended that the card was an acknowledgement of a qualification rather than a mechanism for ongoing supervision of the competence of the card holder.

9

The plaintiff previously unsuccessfully brought judicial review proceedings against the defendant's predecessor agency ( O'Connell v. FÁS [2013] IEHC 181) complaining about the practice whereby shotfiring supervision was carried out by persons without registration cards. The matters at stake in these proceedings were not issues in the previous application.

Relief sought
10

The statement of claim seeks thirteen separate reliefs, but these boil down to two quite net issues. The damages claim was withdrawn. The request for injunctive relief was essentially interlocutory and is not necessary given that I am now dealing with the substantive issue. That leaves a claim for five different declarations in relation to the plaintiff's entitlement to a continuing registration card. That asserted entitlement rests essentially on two propositions; firstly, that the defendant does not have an entitlement to place a restriction on the duration of the card by reference to a period of time and secondly, that the defendant does not have the entitlement to require the plaintiff to ‘undergo re-assessment in order to retain the benefit of his QSCS and/or CSCS card/s’.

Does SOLAS have an entitlement to limit the duration of registration cards?
11

Mr. Paul McGarry S.C. (with Mr. Simon Kearns B.L.) submits that there is no provision in the 2008 or 2013 regulations to limit the duration of the registration card. However reg. 2(3) of the 2008 regulations and reg. 2(4) of the 2013 regulations provide that the card must include photographic identification. It is inherent and implied in such a requirement that the photograph must be of reasonably contemporary vintage. The theme of the person whose idea of a picture of themselves is of one from the distant past is familiar in literature (for a recent example see Irvin D. Yalom, Creatures of a Day (London, 2015) Ch. 3). By way of reductio ad absurdum, a person asked for a photograph of themselves for official purposes does not comply with that requirement by producing a photograph of themselves as a baby.

12

The requirement for photographic identification means that it is inherent in the regulations that the defendant is entitled to limit the duration of a particular registration card by reference to a reasonable period to ensure that any photograph is reasonably current. That does not mean that the defendant is at large in relation to refusing to renew a card on its expiry once an updated photograph is provided. That is the issue to which I now turn.

Is SOLAS entitled to impose a requirement as to self-assessment or re-assessment on renewal of a registration card?
13

Mr. Farrell contends that the object and purpose of the Safety, Health and Welfare at Work Acts 1989 and 2005, and the 2008 and 2013 regulations, is the protection of occupational health and safety, and therefore the defendant should be taken to have an implied power to impose requirements such as ongoing experience and competence, as well as auditing and assessment requirements.

14

At the general level I would endorse the view that legal instruments including statutes and regulations must be read with their object, intention and purpose to the forefront. Mr. Farrell's argument therefore sounds plausible except for the minor difficulty that the manner in which such high-level objectives translate into the issue of jurisdiction to assess holders of registration cards is far from clear and laden with policy choices. The determination of the requirements of occupational health and safety, and the more pertinent issue of what precise entity is to enforce those requirements, are matters of legislative and ministerial policy, and not ones where I can manufacture policy on the hoof. For the court to give effect to the defendant's argument would be to read into the legislation not simply corrections or clarifications, but active policy choices which are not there (see by analogy comments of Clarke J. in Kadri...

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3 cases
  • M.R (Albania) v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 17 August 2020
    ...are not pleaded as alternative contentions, but are illogically simultaneously asserted without qualification. In O'Connell v. Solas [2017] IEHC 242, [2017] 4 JIC 2402 (Unreported, High Court, 24th April, 2017), I referred to this kind of respondent's logic as being a form of catch-22, an......
  • Bedford Bourough Council v M
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    ...proceedings relates to the first interim care order, which is challenged on numerous grounds. As I pointed out in O'Connell v. Solas [2017] IEHC 242, '[a]ny temporary but repeating process is a candidate for an exception to the mootness doctrine. The classic scenario for departure from the......
  • O'Connell v Solas
    • Ireland
    • High Court
    • 31 May 2022
    ...the CSCS and QSCS Certification Scheme. Judgment of Humphreys J. in the 2015 proceedings 11 In a reserved judgment, O'Connell v Solas [2017] IEHC 242, (“the 2015 judgment”), Humphreys J. observed that, prior to 2008, there was no statutory requirement for persons such as Mr. O'Connell, enga......

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