Garda Representative Association v Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Ms. Justice Finlay Geoghegan
• Judgment Date: 02 February 2016
• Neutral Citation: [2016] IECA 18
• Date: 02 February 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2014/29CA & 1400 2014/30 [Article 64 Transfer]

The President

Finlay Geoghegan J.

Hogan J.

Ryan P.

GARDA REPRESENTATIVE ASSOCIATION AND AMY BOURKE

APPELLANTS/APPLICANTS

AND

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT/RESPONDENT

[2016] IECA 18

Appeal No. 2014/29CA & 1400

2014/30

[Article 64 Transfer]

THE COURT OF APPEAL

Ministerial Powers ? Employment ? Police ? Sick Pay ? Judicial Review ? Public Service Management (Recruitment and Appointments) (Amendment) Act 2013 ? Public Service Management (Sick Leave) Regulations 2014

Facts: The applicants appealed against a High Court order refusing the reliefs they sought by way of judicial review. The applicants sought a declaration that the Public Service Management (Sick Leave) Regulations 2014 (?the Regulations?) were ultra vires the respondent. The primary issue for the court on appeal was whether the High Court judge was correct in dismissing the applicants? challenge to the validity of the Regulations based upon the procedures followed. The applicants submitted five grounds of appeal.

The appellants claimed they had a legitimate expectation that no changes would be made to the legislation affecting their sick leave scheme without proper consultation. The High Court determined that the applicants failed to establish that the respondent made such a representation express or implied as to a consultation process that went beyond that which the GRA had already been involved.

Secondly the appellants submitted that the respondent had a legal obligation to consult with the GRA before exercising statutory powers under s. 58B of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013 (?the 2013 Act?). They further submitted that the trial judge erred in determining that the respondent was not obliged to consult with GRA before diminishing the sick pay entitlements of An Garda Siochana.

The third ground of appeal was that the Regulations were invalid by reason of the Minister?s failure to consider relevant matters and considering irrelevant matters. The fourth ground of appeal was the Minister?s failure to protect the health of An Garda Siochana members pursuant to his obligations under s. 58B of the 2013 Act. The final ground of appeal was that the Regulations were legally incoherent, internally inconsistent and therefore inadequate for rational application.

Held by Finlay Geoghegan J: The High Court judge was correct in his approach to examining whether or not the applicants had established a representation to the GRA that there would be a consultation process of the type which they contended. The court was not satisfied on the facts that such a representation had been made to the appellants.

The court agreed that the trial judge was correct to dismiss the appellants? claims that the Regulations were ultra vires the Minister by reason of a failure to consult imposed by law prior to making the Regulations.

The court acknowledged that s. 58B imposes obligations on the Minister in relation to what he should consider prior to making the Regulations but the Court did not see this as precluding the Minister from having regard to other matters. It agreed that the trial judge was correct that the appellants did not establish a failure by the Minister in relation to his obligations under s. 58B to render the making of the regulations incorporating An Garda Siochana ultra vires. Lastly, the court agreed that there was a lack of clarity in relation to the Regulations. However, it did not consider it a ground upon which it should declare the Regulations in their entirety invalid or ultra vires the respondent. The court dismissed the appeal for these reasons.

JUDGMENT delivered on the 2nd day of February 2016 by Ms. Justice Finlay Geoghegan

1 This appeal is against a judgment of the High Court (Kearns P.) delivered on the 17th October, 2014 and order made pursuant thereto (save as to costs) in which he refused to grant the applicants, Garda Representative Association (‘GRA’) and Ms. Amy Bourke the reliefs sought by way of judicial review.

2 GRA is the representative body for rank and file members of An Garda Síochána. Ms. Bourke is a member of the force. Initially GRA alone applied and was granted leave to apply for judicial review in which the primary relief was a declaration that the Public Service Management (Sick Leave) Regulations 2014 ( S.I. 124/2014) (‘the Regulations’) are ultra vires the respondent and related declarations and injunctions. An application for interlocutory relief was refused by the High Court (Peart J.) in May 2014. Subsequently Ms. Bourke was added as an applicant, by reason of locus standi concerns and leave granted to amend the statement of grounds.

3 Following the exchange of affidavits and amended statements of grounds and opposition in the High Court in the matter that came on for hearing before Kearns P. A further amendment was permitted to the statement of grounds by reason of disclosures in the discovery.

4 The primary grounds upon which the appellants challenge the validity of the Regulations are the procedure followed by the respondent in making same. It was and is contended on appeal that the respondent was oblige to consult with GRA in advance of making the Regulations and failed to do so. The submission is principally based upon an asserted legitimate expectation that it would be consulted or in the alternative that the respondent in exercising the statutory powers conferred on him to make the Regulations was obliged to consult. Whilst additional grounds were relied upon and rejected in the High Court and again pursued on appeal, the primary issue on appeal is whether or not Kearns P. was correct in dismissing the applicants' challenge to the validity of the Regulations based upon the procedures followed was or was not correct.

Background to proceedings.

5 The factual background and legal framework in which the proceedings arise is fully set out in the judgment of the High Court. It is not necessary to repeat it in detail for the purpose of explaining the decision I have reached. I have taken into account in reaching my decision all the facts averred to and the relevant documents to which the Court was referred. In summary the background is as follows. Prior to 2012, sick leave payments for An Garda Síochána were set out in a Garda Síochána (Finance) Code Regulation or Garda code. The Minister for Justice and Equality and not the respondent had statutory responsibility for same pursuant to s. 122 of the Garda Síochána Act 2005. In 2012, the Department of Public Expenditure and Reform (DPER) initiated proposals to change sick leave provisions for the public service in general. In May 2012, there was a meeting in the Department of Justice and Equality (‘DOJE’) attended by a representative of DPER and members of GRA at which there was a briefing in relation to the said proposals.

6 On the 28th June, 2012, there was a meeting of the Conciliation and Arbitration Council, a scheme in which the GRA and other representative associations of gardaí participated along with ‘official side’ representatives. The proposed sick pay reform was raised but not pursued.

7 In the meantime the proposal for revised sick pay arrangements had been referred to the Labour Court in the context of a dispute between DPER and the Public Services Committee of ICTU. On the 19th July, 2012, the Labour Court issued a recommendation in relation to sick pay reform and recommended that it take effect on the 1st January, 2014. This recommendation (LCR 20335) contains specific recommendations on new provisions for public service sick pay. It also recommended that it ‘should be of general application to all categories of public servants associated with this referral’, but that in certain schools and colleges grades there should be further consultative meetings under the auspices of the Department of Education and Skills. It is common case that the gardaí were not associated with the referral. Members of An Garda Síochána (AGS) are prohibited by Statute from being a member of any trade union (s. 13(3) of the Act of 1923, as amended). Hence GRA is prohibited from joining ICTU and did not participate through it in the overall negotiations and reference to Labour Court.

8 In November 2012, at a further meeting of the Conciliation Council, the proposals for sick pay reform, including the Labour Court recommendation was referred to ‘Partnership’. Partnership is a forum within An Garda Síochána with representatives of management and the Garda Staff Associations. In January 2013, a working group was established within Partnership. In May 2013, the Haddington Road Agreement was reached which included a review to commence in September 2013, and conclude by June 2014, of remuneration and conditions of service of members of An Garda Síochána.

9 In September 2013, a memorandum for Government was circulated in relation to a legislative basis for reform of sick pay arrangements across the public service. The respondent was to have statutory responsibility for all. This was available to GRA through the Partnership Working Group.

10 On the 8th November 2013, the Partnership Working Group issued its report. Further reference will be made to this below, its recommendation was in the following terms:-

‘The Working Group is totally opposed to the implementation of the proposed arrangements. The Working Group is recommending that a derogation from the provisions of the legislation be made for An Garda Síochána pending a full review of the current sickness absence arrangements within An Garda Síochána under the terms of the Haddington Road Agreement.’

11 The Partnership Working Group report was sent to DOJE on the 12th November, 2013 and by it to DPER on the 22nd November, 2013.

12 The initial reaction from DPER was an email of the 2nd December, 2013, to DOJE, the substance of which...