Doherty and Another v Sth Dublin County Council and Others

CourtSupreme Court
Judgment Date31 October 2006
Neutral Citation[2006] IESC 57
Docket Number[S.C. No. 223 of 2006]
Date31 October 2006
Doherty & anor. -v- South Dublin County Council & ors.




Amicus Curiae/Respondent

[2006] IESC 57

Murray C.J.

Denham J.

McGuinness J.

Fennelly J.

Macken J.

No. 223/06



JUDGMENT of MR JUSTICE FENNELLY delivered on the 31st day of October, 2006 .


This is an appeal against an order of Quirke J in the High Court granting liberty to the Equality Authority (hereinafter "the Authority") to act as an amicus curiae in the above-mentioned judicial review proceedings.


The applicants are a married couple in their seventies. They are members of the travelling community living at an emergency halting site at Clondalkin, County Dublin. They have secured leave to bring these judicial review proceedings. They allege that the first-named respondent, as housing authority, has failed to provide them with appropriate accommodation in the form of a centrally heated, insulated and internally plumbed caravan. They say that they are denied the comforts which members of the settled community would have in a house. This failure, it is claimed, is contrary to:


• The Housing Acts 1966–2004 as interpreted in the light of the European Convention on Human Rights Act, 2003;


• Articles 40.1, 40.3 and 41 of the Constitution;


• The Equal Status Acts 2000–2004, and in particular section 6 of the Equal Status Act, 2000, as amended;


Council Directive 2000/43/EC of 29th June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (hereinafter "the Race Directive").


For present purposes, the allegation of most relevance is that this failure of the first-named respondent constitutes discrimination, either directly or indirectly, against members of the travelling community in relation to social advantages and the provision of services, including housing.


It is also pleaded that the second-named respondent is under various duties pursuant respectively to the European Convention on Human Rights and the Race Directive and that the state has failed properly to transpose the directive.


The solicitors for the applicants notified the Authority of the existence of the proceedings and suggested that the Authority might consider applying to be joined in the proceedings. The Authority applied by notice of motion to the High Court for an "order pursuant to the inherent jurisdiction of the ......court giving to the Equality Authority liberty to appear as amicus curiae" in the proceedings. The affidavit of the applicants" solicitor grounding the application stated, inter alia:


"...... it is the function of the Equality Authority, inter alia, to promote equal treatment of all persons without discrimination on the grounds of racial or ethnic origin;


the issues raised in the proceedings ..., and in particular the purported discrimination suffered by the plaintiffs in relation to the allocation of housing concern questions of equal treatment and discrimination and are therefore issues which come within the direct remit of the Equality Authority ......;


the importance of these issues clearly transcends the facts of this particular case and has implications for the entire Travelling Community......."


The affidavit proceeded to state:


2 "13. It would appear from the pleadings already filed by the Plaintiffs herein that it is likely that questions of the proper interpretation of the Race Directive and its inter-relationship with domestic legislation will arise in these proceedings. The Equality Authority considers that it has an interest in these matters and may be of assistance to the Court, in particular in regard to the question of the proper interpretation of the provisions of the Equal Status Acts, 2000 – 2004, Race Directive and its interaction with the provisions of the Equal Status Acts, 2000 – 2004. The issue of reasonable accommodation in the provision of accommodation services to persons with a disability also arises by reason that the facts of the case raise an important issue of law as to how section 6 falls to be interpreted in the light of section 4 of the Equal Status Acts, 2000 – 2004 where the applicants for accommodation have a disability.


14. I say and believe that, if granted the right to appear, the Equality Authority would be in a position to make oral and written submissions in relation to those issues that would be of assistance to this Honourable Court."


The application was opposed by the second, third and fourth-name respondents, effectively by the State. For brevity I will refer to them as the appellants. The grounds for that opposition have been replicated on this appeal. In substance, it is contended that the Authority is a creature of statute and has no power to become an amicus curiae in general court proceedings.


Quirke J, in an ex tempore judgment of 22nd May 2006, held that the Authority had a bona fide interest in the proceedings, citing the judgment of this Court in H.I. v Minister for Justice, Equality and Law Reform [2003] 3 I.R. 197. He said, in the course of his ruling:

"I am satisfied that were the court to appoint the Equality Authority by way of amicus curiae, it has developed a body of experience and expertise in relation to the issues within its statutory remit, particularly avoidance of discrimination as against members of ethnic groups and I note that the issues in these proceedings concern, amongst other things, allegations in relation to the discriminatory legislative treatment with regard to the provision of accommodation for the applicants who are members of the Travelling Community. As I say, if the Equality Authority is to be appointed by way of amicus curiae, it follows that the normal rules in relation thereto will apply. That is to say that ... the participation of the Equality Authority in the hearing were it to be so appointed would be at the direction of the Trial Judge and it would be in a position to furnish assistance to the court in the event that the court required assistance and in a manner directed by the court. As I say I am satisfied that the Equality Authority has a bona fide issue [sic] in that regard."


The learned judge went on to examine the argument about statutory powers and held that the proposal was "incidental or consequential upon the Authority's express statutory powers." He referred particularly to the long title and to section 39 of the Equal Status Act, 2000. He stated that he derived assistance from the decision of the House of Lords in Re Northern Ireland Human Rights Commission [2002] NI 236.


Quirke J also dealt with an argument concerning the interpretation of the relevant equality legislation in the light of the Race Directive. The Authority contended before the High Court, as it has before this Court, that the provisions of the Equal Status Act, 2000 and of the Equality Act, 2004 should be interpreted in the light of certain provisions of the Race Directive. This is what the Court of Justice calls the principle of "conforming interpretation." As I have said in other judgments, this is a poor rendering of the French expression "interprétation conforme." The most material provisions of the Race Directive are Articles 7.2 and 13.Quirke J agreed with the contentions of the Authority. For reasons which will emerge later in this judgment, I do not consider it necessary to quote these provisions. It suffices to say that the learned High Court judge held that they appeared to confer on the State an onus of establishing bodies such as the Authority and that such bodies would be envisaged as playing a role in proceedings covered by the subject-matter of that Directive.


I turn then to the appeal. The appellants challenge the decision of the High Court on both grounds. They state that the Authority has no statutory power to act as amicus curiae and that nothing in the Race Directive or the principle of conforming interpretation requires the Court to interpret the legislation so as to confer such a power. It is logical to consider the first of these points first. If the legislation, read in accordance with normal interpretative principles, includes the relevant power, there is no need to consider the Directive.


Mr Anthony Collins, Senior Counsel, based what he described as his principal argument on behalf of the appellants on the fact that the legislation contains no express power for the Authority to act as amicus curiae in court proceedings. On the other hand, the Authority may intervene in proceedings in a number of particular cases. According to Mr Collins, applying the principle expression unius est exclusio alterius, it is clear that the Oireachtas did not intend to confer such a power. Statutory bodies enjoy only such powers as are conferred on them expressly or by necessary implication. Mr Collins added that the Authority had unsuccessfully made a submission to the Minister that the legislation should be amended. He also added that the almost exactly contemporaneous legislation, the Human Rights Commission Act, 2000, by way of contrast did confer such an express power on the Commission established by that Act.


In short, the essence of the appellants" case is that the express instances of the Authority's power to intervene in court proceedings are implicitly exhaustive of the powers of the Authority in this respect.


In responding to these submissions, it is appropriate to refer to the more general provisions of the legislation...

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