Garda Representative Association v Minister for Finance

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 25 March 2010
• Neutral Citation: [2010] IEHC 78
• Court: High Court
• Date: 25 March 2010

[2010] IEHC 78

THE HIGH COURT

[No. 800 J.R./2009]

Garda Representative Association v Min for Finance

JUDICIAL REVIEW

BETWEEN

THE GARDA REPRESENTATIVE ASSOCIATION

APPLICANT

AND

THE MINISTER FOR FINANCE

RESPONDENT

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S3

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S2

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S4

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S9

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S10

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S13

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S15

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S1

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S1(H)

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S8

PRENDERGAST v HIGHER EDUCATION AUTHORITY & ORS 2009 1 ILRM 47 2008/52/11026 2008 IEHC 257

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD (T/A SOUTH COAST COMMUNITY TELEVISION BROADCASTING SERVICE) & MURPHY v MIN FOR TRANSPORT & ORS (NO 2) 1997 1 ILRM 241 1996 DULJ 139 1998/13/4403

COSTELLO, STATE v BOFIN 1980 ILRM 233 1980/12/2212

UNIVERSITY OF LIMERICK v RYAN & ORS UNREP BARRON 21.2.1991 1991/6/1486

HOUSING ACT 1988 S13

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S14

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S15

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

MISHRA v MIN FOR JUSTICE & ORS 1996 1 IR 189 1996/13/4227

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION 2007 4 IR 70 2006/3/487 2006 IEHC 201

O'REILLY & ORS v LIMERICK CORP & ORS 1989 ILRM 181 1988 DULJ 189 1988/10/2829

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51 1989 ILRM 104 1988/1/79

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149 1988/8/2385

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL & ANOR v PORTER (NO 2) 2004 1 WLR 1953 2004 4 AER 775

MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

FAULKNER v MIN FOR INDUSTRY UNREP SUPREME 10.12.1996 1997/3/962

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

MINISTER

Powers

Discretion - Exceptional circumstances - Pension levy - Whether respondent failed to properly exercise discretion to exclude gardai from austerity measures - Whether exceptional circumstances for ameliorating levy in respect of body expressly included within legislation - Whether just and reasonable in circumstances for Minister to exercise discretion - Whether exercise of discretion unfettered - Whether expression of reasons necessary - Whether reasons given by Minister sufficient and adequate - Financial Emergency Measures in the Public Interest Act 2009 (No. 5) - Carrigaline Community Television Broadcasting Company Ltd v Minister for Transport (No. 2) [1997] 1 ILRM 241; State (Costello) v Bofin [1980] ILRM 233; University of Limerick v Ryan (Unrep, Barron J, 21/2/1991); Mishra v Minister for Justice [1996] 1 IR 189; Ashford Castle Ltd SIPTU [2006] IEHC 201 [2007] 4 IR 70; O'Reilly v Limerick Corporation [1989] ILRM 181; State (Creedon) v Criminal Injuries Compensation Tribunal [1988] IR 51; International Fishing Vessels v Minister for Marine [1989] IR 149; South Bucks District Council v Porter (No 2) 1 WLR 1953; Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306 [2006] IR 453; FP v Minister for Justice [2002] 1 IR 164; Faulkner v Minister for Industry and Commerce (Unrep, SC, 10/12/1996); Kenny v Judge Coughlan [2008] IEHC 28 (Unrep, Ó Néill J, 8/2/2008) considered - Application refused (2009/800JR - Charleton J - 25/3/2010) [2010] IEHC 78

Garda Representative Association v Minister for Finance

Facts: The applicant claimed that the respondent had failed to properly exercise his discretion to exclude Gardai from an austerity measure know as the "pension levy." It was argued that the Minister for Finance did not properly consider their application and that he had given no adequate reason for his refusal. Austere fiscal controls were introduced by the Financial Emergency Measures in the Public Interest Act 2009, which had introduced a "pension levy" in s. 3 of the Act of 2009.

Held by the High Court per Charleton J. that the application would be refused. The discretion being faced by the respondent was not to include the Garda Siochana in the pension levy in his discretion but rather to find exceptional circumstances that would entitle him in law to consider excluding them. The discretion was an unfettered discretion as the wording clearly excluded by its express terms any entitlement by reason of qualification. The submission to the respondent was fully and adequately considered by him in accordance with the law. The reasons courteously give by the respondent for refusing the application for an exemption from the pension levy were sufficient and adequate. The application would be refused.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Charleton delivered the 25th day of March 2010 .

2 1. The applicant claims that the respondent has failed to properly exercise his discretion to exclude gardaí from an austerity measure known as the "pension levy". It is argued that the Minister for Finance did not properly consider their application in that regard and, further, that he gave no adequate reasons for his refusal. All of this has a background and a context. From September, 2008 it became obvious that Ireland was facing a severe monetary crisis. There have been three national budgets announced by the Minister for Finance in Dáil Éireann since that month with the stated purpose of returning the public finances to something approaching a manageable balance. Tax revenue has fallen markedly while State expenditure has remained broadly the same as before. Austere fiscal measures were introduced by the Government in an attempt to control the public finances. One of these involves deductions from public service pay and this is made lawful by the Financial Emergency Measures in the Public Interest Act 2009. That Act is at issue in this judicial review. In effect, it makes less money available to public servants by charging them an extra percentage of money from their pay for the pension provision which the State makes for them.

3 2. As to the correct response to the economic situation facing the country, public debate may inform the choices available to Government. Ultimately, however, the challenge in alleviating the nation's problems lies with those who are elected to Dáil and Seanad Éireann and who, in turn, have chosen the Government. The court cannot, and does not, have any view in the executive or political sphere. If, however, in the imposition of any austerity measure a legal error is made then, clearly, this may be subject to the possibility of judicial review.

The 2009 Act

4 3. The conditions and fundamental terms of employment of public servants tend in the modern era to be circumscribed by statute and regulation. Since the public service involves many different forms of employment, the conditions under which people work, their rates of pay and their pension entitlements tend to differ from sector to sector. It is beyond doubt, however, that those who are permanently employed within the public service enjoy pension entitlements by which the State guarantees to abide; in contrast to privately funded pension arrangements which are markedly subject to variation in the financial markets. The fiscal measure in question in this case aimed at ameliorating our current economic crisis by levying members of the public service through taking from their pay packet a percentage that depended upon their rate of remuneration as a payment towards the stability and amplitude of public service pension arrangements. This was implemented by the Financial Emergency Measures in the Public Interest Act 2009. That Act begins with an unusually strong series of recitals:-

"WHEREAS a serious disturbance in the economy and a decline in the economic circumstances of the State have occurred, which threaten the well-being of the community;

AND WHEREAS as a consequence a serious deterioration in the revenues of the State has occurred and there are significant and increasing Exchequer commitments in respect of public service pensions;

AND WHEREAS it is necessary to cut current Exchequer spending substantially to demonstrate to the international financial markets that public expenditure is being significantly controlled so as to ensure continued access to international funding, and to protect the State's credit rating and reverse the erosion of the State's international competitiveness;

AND WHEREAS the burden of job losses and salary reductions in the private sector has been very substantial and it is equitable that the public sector should share that burden;

AND WHEREAS it is necessary to take the measures in this Act as part of a range of measures to address the economic crisis;

AND WHEREAS the value of the public service pensions is significantly and markedly more favourable than those generally available in other employment"

5 4. The actual deduction by way of the pension levy is enabled under s. 3 of the Financial Emergency Measures in the Public Interest Act 2009, which requires payment of a contribution from remuneration as required by s.2, whereby the Minister for Finance can make regulations in order to calculate the relevant amount made payable as a contribution from public servants and collect and recover it. Under s. 4 of the Act, public servants are obliged to make such payments for the benefit of the Exchequer. In practice, the sum is deducted at the source of payment. In addition to...