Equality Authority v Portmarnock Golf Club and Others & Cuddy & Keane v Equality Authority and Others
| Jurisdiction | Ireland |
| Judge | O'Higgins J. |
| Judgment Date | 10 June 2005 |
| Neutral Citation | [2005] IEHC 235 |
| Court | High Court |
| Date | 10 June 2005 |
[2005] IEHC 235
THE HIGH COURT
AND
AND
AND
Employment - Equality - Discrimination - Statutory interpretation - Words and phrases - “Needs of persons of a particular gender” - Whether defendant exempt from being discriminating club on basis of gender - Equal Status Act 2000, sections 8 and 9.
Facts: section 8 of the Equal Status Act 2000 prohibits discrimination by clubs in its admission policies or rules. Section 9 of the Act of 2000 provides that “a club shall not be…a discriminating club…if its principal purpose is to cater only for the needs of persons of a particular gender”. Rule 3 of the defendant’s rules provides that it is a golf club whose members “shall be gentlemen…”. As such, women were not permitted to become members. The plaintiff initiated proceedings against the defendant seeking a declaration that the club by refusing membership to women, was a discriminatory club within the meaning of section 8 of the Act of 2000. The District Court stated a case to the High Court for its opinion as to whether it had been correct in making such a declaration. The defendant contended that, by virtue of section 9 of the Act of 2000, it was exempt from section 8 thereof as the word “needs” included social, cultural and recreational needs.
Held by O’Higgins J in answering the case stated in the negative that an interpretation of section 9 of the Act of 2000 which included social, cultural and recreational needs did not undermine the aims of the Act but recognised the fact that there was nothing inherently undesirable with persons seeking in a social context the society of persons of the same gender or the same nationality or religion. As such, the defendant, whose purpose was to cater only for the needs of male golfers came within the exceptions of section 8 of the Act of 2000 provided for by section 9.
Reporter: P.C.
O'Higgins J. dated 10th day of June 2005.
These two cases arise out of the same set of facts and may be conveniently taken together.
The first case comes before the court by way of an appeal by way of case Stated from Mary Collins, Judge of the District Court pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1661.
Portmarnock Golf Club is one of the oldest and most well known golf clubs in Ireland. It was founded in 1894, and currently has a membership of 662 members and 625 associate members. The Club is affiliated to the Golfing Union of Ireland, and has, for many years, been the holder of a Certificate of Registration under the Registration of Clubs Acts, 1904-1999. The dispute in the present proceedings relates primarily to Rule 3 of the Portmarnock Golf Club's Rules. The Rule provides that:-
"The Club shall consist of Members and Associate Members…who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status"
As such, women are not permitted to become members or associate members of the Club. Women may, however, play golf there either with or without a member, on the payment of a green fee. The Club also provides changing facilities and locker rooms for women, and women are entitled to access to the bar and restaurant and all other Clubhouse facilities available at the Golf Club. A ladies' scorecard is available to women golfers and the Club facilitates the playing of golf by women under the rules of the Irish Ladies' Golfing Union, the body which regulates women's golf in Ireland.
On 17 th April, 2003, the Chief Executive of the Equality Authority initiated proceedings against the Club. They sought a declaration that the Club, by refusing membership to women, was a discriminatory Club, within the meaning of s.8 of the Equal Status Act, 2000. On the 20 th February, 2004, the District Judge made such a declaration. On the 18 th May, 2004 she made an order under s. 8(7)(a) of the Act of 2000 suspending the certificate of registration of Portmarnock Golf Club for a period of seven days.
In her judgment, the learned Judge Mary Collins concluded as follows:-
" I have considered all submissions in depth and how I should approach the interpretation of Section 9(1) (a). The core issue is the interpretation of this section. I am satisfied that this section is to be interpreted in accordance with the rule of the interpretation as set down by the Supreme Court and the High Court. In Howard -v- The Commissioner of Public Works and judgment of Blayney J. makes it clear that if words are precise and unambiguous they must be given their ordinary and natural sense. If the meaning is not plain it is not the role of the courts to speculate. Finlay CJ at page 140 stated that it is not permissible to interpret on the basis of speculation. Denham J. stated if plain intention is expressed the court should not speculate but construe the statute as enacted. In DB -v- The Minister for Health and Children Denham J. reiterated that effect must be given to clear and unambiguous words and the natural and ordinary meaning would apply. McGuinness J. pointed out that the starting point should be the literal approach.
The Equal Status Act is an Act to promote equality and prohibit discrimination. I propose attributing to Section 9 the ordinary meaning in the Oxford English Dictionary. The relevant words of Section 9 (1) are "principal purpose" and "to cater only for the needs of" that which is in "principal" is first in importance. The "purpose" is the object towards which one strives. To "cater for" is to provide what is needed or required and "need" is that which is wanted or required. I think the words are clear.
The principal purpose of the Club is to play golf. The ordinary words of the statute do not ascribe to men's golf a special need. A literal approach is appropriate in this case and therefore other canons of construction are not needed. I propose to rely on the presumption of constitutionality.
Accordingly the Defendants is a discriminating Club for the purposes of Equal Status Act 2000 and does not come within the exemptions provided therein".
In the case stated, the opinion of the High Court was sought as to whether the District Judge was correct in law in making the determination and the order.
In the second set of proceedings commenced by plenary summons dated 11 th June, 2003 the plaintiffs who are suing in their capacity as trustees of Portmarnock golf Club seek:-
1. A declaration that Portmarnock Golf Club (the Club) is not a discriminating Club with the meaning of that term in s. 8 of the Equal Status Act, 2000.
2. Further, in the alternative, a declaration that by reason of the provisions of s. 9 (1) (a) of the Equal Status Act, 2000 the Club shall not be considered to be a discriminating Club for the purposes of s. 8 of the Equal Status Act, 2000.
3. A declaration that in the circumstances is not open to the first named defendant to make any application to the District Court pursuant to s. 8 (3) of the Equal Status Act, 2000 requesting that the District Court make an determination as to whether the Club is a discriminating Club within the meaning of that term in s. 8 of the said act.
4. An order restraining the first named defendant, its servants or agents, from making any application in the District Court pursuant to s. 8 (3) of the Equal Status Act, 2000, requesting that the District Court make a determination as to whether the Club is a discriminating club within the meaning of that term in s. 8 of the said Act
5. Further, or in the alternative, if the provisions of s. 9 (1) (a) of the Equal Status Act, 2000 do not, under proper construction, apply to the Club and/or if the Club is, or considered to be, a discriminating Club for the purpose of s. 8 of the Equal Status Act, 2000, the provisions of ss. 8, 9 and 10 of the Equal Status Act, 2000 are invalid having regard to the provisions of Article 40.1, 40.3, 40.6.1 and 43 of the Constitution of Ireland.
The plaintiff claims damages and relief.
The case falls to be decided on either of two grounds. The first ground is based on the interpretation of ss. 8 and 9 of the Equal Status Act, 2000. The second ground is concerned with the constitutionality of the Act. The plaintiffs argue that if the interpretation contended for by the Golf Club is found to be incorrect (having regard to the normal rules of interpretation, including if necessary the rule of double construction, whereby in cases of doubt a certain construction maybe put on words, or a section of a statute, to save the constitutionality of statute) then the Act itself is unconstitutional. I propose to deal first with the interpretation of the relevant sections of the legislation and then consider the arguments based on the Constitution. It is convenient firstly to consider the case brought by the golf club through its trustees since the issues in those proceedings encompass the question of interpretation raised in the case stated. I will refer to the golf club suing through its trustees as the plaintiffs and the Equality Authority as the first named defendant and Ireland the Attorney General as the second and third named defendants.
Sections 8 and 9 of the Equal Status Act, 2000 fell to be considered by the learned District Judge.
The relevant portion of s. 8 of the Equal Status Act, 2000...
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