Garda Representative Association v Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: the Chief Justice
• Judgment Date: 07 February 2018
• Neutral Citation: [2018] IESC 4
• Docket Number: Record Nos. 32/2016, 42/2016, 43/2016
• Court: Supreme Court
• Date: 07 February 2018

Between/

Garda Representative Association

and

Amy Bourke

Appliants/appellants

and

The Minister for Public Expenditure and Reform

Respondent

[2018] IESC 4

Record Nos. 32/2016, 42/2016, 43/2016

THE SUPREME COURT

Judicial review - Ministerial Regulations - Legitimate expectation - Appellants seeking to challenge the lawfulness of Ministerial Regulations which brought about the alteration in the sick leave regime - Whether legitimate expectation arose

Facts: The applicants/appellants, Garda Representative Association and Ms Bourke (the GRA), brought judicial review proceedings in the High Court which challenged the lawfulness of the Ministerial Regulations which brought about the alteration in the sick leave regime, the Public Service Management (Sick Leave) Regulations 2014 (S.I. 124 of 2014). The claim failed for the reasons set out by Kearns P in a judgment delivered on the 17th October 2014 ([2014] IEHC 457). From that result the GRA appealed to the Court of Appeal. For the reasons set out in the judgments of Finlay Geoghegan and Hogan JJ delivered on the 2nd February 2016, the Court of Appeal (Ryan P, Finlay Geoghegan and Hogan JJ) dismissed the appeal ([2016] IECA 18). Thereafter, the GRA successfully applied to the Supreme Court for leave to appeal. The Court identified the issues or grounds which it considered satisfied the constitutional threshold and gave leave to appeal on that basis. The Court indicated that it would be a matter for the case management Judge to refine those grounds in the light of the written submissions filed by the parties during the case management process. The case management Judge (Charleton J) refined the grounds to be pursued at the oral hearing and specified same in the following way: (a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness? (b) Can the doctrine of legitimate expectation arise in the particular context at issue in this appeal? (c) Where a representation is made, if, which is denied, any such was made here, which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence? (d) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

Held by Clarke CJ that the relevant statutory regimes do not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013; the Regulations were introduced under that Act and it is, in its terms, stated to apply notwithstanding any other legislative provision. For the purposes of the argument, Clarke CJ was prepared to accept that it was possible that the GRA was entitled to some engagement prior to the making of such Regulations on one or other or both of two bases: (1) the possibility that the restrictions placed on the ability of An Garda Siochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted; (2) it may again be arguable that the history of the engagement between the parties is such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded. However, Clarke CJ also concluded that under neither of those headings was it arguable that there could be a right to any specific form of process; rather the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations. On that basis Clarke CJ considered the facts and concluded that no breach of any such general entitlement had been established. Clarke CJ noted that there was a lengthy engagement between the Government side and the GRA. On that basis Clarke CJ came to the view that, even if any generalised right of the type described arose on any of the legal bases put forward, no breach of any such entitlement had been established. For that reason Clarke CJ did not consider it necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached.

Clarke CJ held that the Court would dismiss the appeal and affirm the orders of the Courts below.

Appeal dismissed.

Judgment of the Chief Justice delivered the 7th February 2018

1. Introduction

1.1 New regulations, which became effective on the 31st March 2014, had the effect of significantly altering the sick leave regime applicable for certain categories of public servants including members of An Garda Siochána. It must be emphasised at the very beginning that the Courts in general, and this Court in particular, have no role in deciding on the merits of the terms and conditions under which public servants are employed. Questions concerning whether the previous regime for sick pay was appropriate and, if change was required, the extent to which any such change might be justified are primarily questions of policy and, indeed, industrial relations. However, many aspects of the arrangements whereby public sector employees or office holders are engaged are governed or influenced either by primary legislation or Ministerial Orders made on the authority of such legislation. Furthermore, the fact that such persons are engaged by the State brings at least the possibility that other legal obligations may arise. It follows that there may be questions as to the lawfulness (as opposed to the appropriateness) of measures adopted which have an effect on the terms and conditions under which public sector personnel are engaged. The central issue raised in these proceedings concerns the extent to which the law may impose an obligation to consult before introducing measures such as those at issue on this appeal.

1.2 This case is, therefore, concerned only with whether the changes to the sick pay regime to which I have referred are lawful. The applicants/appellants (whom, for convenience, I will refer to as the 'GRA') brought judicial review proceedings in the High Court which challenged the lawfulness of the Ministerial Regulations which brought about the alteration in the sick leave regime (the Public Service Management (Sick Leave) Regulations 2014 ( S.I. 124 of 2014) ('the Regulations')). The claim failed for the reasons set out by Kearns P. in a judgment delivered on the 17th October 2014 ( GRA & Anor v. Minister for Public Expenditure and Reform (2014) IEHC 457. From that result the GRA appealed to the Court of Appeal. For the reasons set out in the judgments of Finlay Geoghegan and Hogan JJ. delivered on the 2nd February 2016, the Court of Appeal (Ryan P., Finlay Geoghegan and Hogan JJ.) dismissed the appeal. ( GRA & Anor v. Minister for Public Expenditure and Reform (2016) IECA 18).

1.3 Thereafter, the GRA successfully applied to this Court for leave to appeal. In accordance with a frequent practice which has developed in relation to appeals brought to this Court under the new constitutional architecture in place since the 33rd Amendment came into effect, the Court identified the issues or grounds which it considered satisfied the constitutional threshold and gave leave to appeal on that basis. However, the Court indicated that it would be a matter for the case management Judge, having heard the parties, and if it was considered appropriate, to refine those grounds in the light of the written submissions filed by the parties during the case management process. This is a practice which the Court is likely to continue in at least the vast majority of cases. I should, therefore, start by briefly setting out the reasoning behind that practice.

2. Grounds of Appeal in New Jurisdiction Cases

2.1 It is important that parties, or potential parties, to appeals to this Court under the new jurisdiction take account of the fact that the panel dealing with an application for leave to appeal will, necessarily, only have available to it relatively limited materials concerning the proceedings and the issues which the parties may wish to raise in the event that leave to appeal is granted. It is important to understand that it would defeat the purpose of the new constitutional architecture if the Court, on an application for leave, were required to go into matters in any more detail than is strictly necessary to determine that the potential appeal meets the constitutional threshold.

2.2 In that context, it is of the utmost importance that parties recognise that the primary focus of the notices required to be filed in the context of an application for leave to appeal should be on identifying in a clear manner the matters or issues which are said to meet the constitutional threshold or, where leave is being opposed, the reasons why it is said that those matters or issues do not meet that threshold. Excessively diffuse and unfocused applications for leave to appeal run the risk of putting the Court in a position where it cannot adequately identify the real issues which might arise on an appeal and assess whether those issues meet the constitutional threshold. It must, therefore, be emphasised that parties who do not approach the application for leave to appeal in such a focused way may be the authors of their own misfortune, in that leave may be refused or granted when another result to the application might have arisen had the arguments for or against been more...