Mallon v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 05 October 2022
• Neutral Citation: [2022] IEHC 546
• Court: High Court
• Docket Number: [Record No. 2021/665 JR]

Between:

Seamus Mallon

Applicant

and

The Minister for Justice, Ireland and The Attorney General

Respondents

[2022] IEHC 546

[Record No. 2021/665 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 5 ^th day of October, 2022

INTRODUCTION

1 . The Applicant is a sheriff appointed under the Court Officers Act, 1945 (hereinafter “the 1945 Act”). In these proceedings he seeks to challenge the mandatory retirement age of 70 fixed under s. 12(6)(b) of the 1945 Act as being incompatible with ( Council Directive 2000/78/EC of the 27 ^th of November, 2000 establishing a general framework for equal treatment in employment and occupation [hereinafter “the Framework Directive”].

2 . The essence of the Applicant's case is that the mandatory retirement age of 70 infringes the age discrimination provisions of the Framework Directive, as transposed into Irish law by the Employment Equality Act, 1998 (as amended), because there is no objective of reasonable justification for such a mandatory retirement age.

BACKGROUND

3 . The Applicant was appointed to the statutory office of sheriff on the 28 ^th of January, 1987 for the Counties of Cavan and Monaghan pursuant to s. 12 of the 1945 Act. Appointments in more recent times are made following an open competition conducted by the Public Appointments Service and a Government appointment on foot of a memorandum to Government from the Minister for Justice. The office is non-pensionable but sheriffs are entitled to make contributions based on their earnings to provide for a State Contributory Pension upon reaching pensionable age (currently 66 years).

4 . As per the terms of his letter of appointment, the Applicant was appointed with “ the single responsibility for the execution of certificates of tax liability under s. 485 of the Income Tax Act, 1967”.

5 . The Applicant's appointment was stated to be on terms applicable to all Revenue Sheriffs which terms included an annual retainer fee (currently fixed at €25,630), an entitlement to retain fees payable in respect of the execution of Revenue Certificates under s. 485 of the Income Tax Act, 1967 pursuant to fee orders in force (currently the Sheriff's Fees and Expenses Order, 2005 (S.I. No. 644 of 2005) and the Fines (Payment and Recovery) Act, 2014 (Fees) Order 2016 ( S.I. No. 549 of 2016), a requirement to provide at his own expense clerical and other staff as requisite for the execution of the Office of Sheriff, a requirement to enter into a bond in accordance with s. 12 of the 1945 Act, a requirement to report to the Revenue Commissioners on a monthly basis on the execution of certificates transmitted to him for execution.

6 . On reaching his seventieth birthday in May, 2022, the Applicant was to be obliged to retire from office in accordance with the provisions of s. 12(6)(b) of the 1945 Act and the mandatory retirement age has applied without change from the date of the Applicant's appointment to office.

7 . In practice, while the Sheriff is appointed by the Respondent who pays the annual retainer fee, operational responsibility for the work of Sheriff with regard to tax collection lies with the Revenue Commissioners but the Sheriff remains personally responsible for managing and organising the Sheriff's office, staffing levels, staff functions and staff remuneration.

8 . In advancing his proceedings, the Applicant relied on an earlier process engaged in by the Sheriff's Association, of which he is a member, with the Respondent. On or about the 6 ^th of July, 2020, the Sheriff's Association made a formal submission to the Respondent seeking a statutory amendment to the mandatory retirement age. In this submission the Sheriff's Association referred to the fact that there were only sixteen independent sheriffs in Ireland. The specific role of the Sheriff was outlined in some detail. A case was made for the extension of the retirement age for sheriffs by reference to considerations summarised in the submission as including:

• i. People in the workforce are working for longer as a result of increased longevity;

• ii. The law protects against discrimination on grounds of age interfering with the right to work;

• iii. Sheriffs do not receive a pension on retirement and must make provision for their own pension from their earnings;

• iv. Coroners, as State office holders, have obtained an increase in their age of retirement from 70 to 72 by statutory amendment;

• v. Sheriffs incurred significant losses for the years 2020/2021 due to the COVID-19 Pandemic and an extension to the retirement age would allow them to recoup such losses;

• vi. The caselaw of the European Court of Justice with regard to Council Directive 200/78/EC demonstrates that a national law providing for automatic retirement upon reaching the age of 70 will be regarded as infringing the age discrimination provisions of the Directive unless the relevant provision can be objectively and reasonably justified by a legitimate employment policy/labour market objective;

• vii. An extension to the retirement age of only sixteen sheriffs would have no impact on the labour market in the legal sector and would be at no cost to the State. The restriction of sixteen Sheriff office holders to a retirement age of 70 in circumstances where it has been government policy to suspend enforcement, thereby depriving them of their livelihood, does not pass the test of objectively and reasonably justified by a legitimate employment policy/labour market objective;

• viii. Coroners are treated more favourably than sheriffs, an act of discrimination in itself.

9 . A reply dated the 20 ^th of April, 2021 was issued by email on behalf of the Respondent. While the response referred to additional financial support approved by the Department of Public Expenditure and Reform for a one-off doubling of the annual retainer fee paid to Sheriffs for that year (2021), it further stated that approval to extend the mandatory retirement age beyond the age of 70 years “ is not forthcoming”. This was explained as follows:

“The Department of Public Expenditure and Reform has explained that the standard compulsory retirement age in the public service was consolidated following the enactment of the Public Service Superannuation (Age of Retirement) Act, 2018, to the greatest extent possible, at the age of 70. This position represents current Government policy, and is a position which that Department seeks to implement in a consistent manner in order to protect the integrity of the policy.”

10 . This reply is challenged in these proceedings as a “decision” which requires the Applicant to retire from his position as sheriff on reaching the age of 70 in May, 2022 and as constituting a failure to properly consider the need for legislative amendment to s. 12 of the 1945 Act to ensure compliance with the provisions of the Framework Directive.

STATUTORY FRAMEWORK AND COMPARATOR PROVISIONS

11 . The office of High Sheriff was abolished by the Court Officers Act, 1926. This Act provided for the transfer of functions Under-Sheriff's. The Court Officers Act, 1945 created the office of Sheriff and provided, subject to a Ministerial Order, for the transfer of functions from any remaining Under-Sheriffs to the Sheriff and for the transfer of functions from County Registrars to Sheriffs.

12 . Section 12(6) of the 1945 Act provides with regard to the office of sheriff as follows:

“12.—

….

(6) The following provisions shall have effect in relation to the office of sheriff:—

(a) the office of sheriff shall be non-pensionable and shall be held at the will and pleasure of the Government;

(b) the age of retirement from the office of sheriff shall be seventy years;

(c) every person appointed to the office of sheriff shall give security to such amount and in such manner as the Minister shall direct (either generally or in any particular case) for the due performance of his duties;

(d) every sheriff shall furnish to the Minister such annual or other returns and such accounts as the Minister shall from time to time direct, either generally or in any particular case;

(e) any officer of the Minister authorised in that behalf by the Minister shall be entitled at all reasonable times to enter the offices of any sheriff and thereupon to inspect the offices, to inquire into the work done therein, to examine the accounts of the sheriff, and to be furnished by the sheriff with any information in regard to such offices, work, or accounts which he may require;

(f) the same person may be appointed to be sheriff for a county borough and one or more adjoining counties or for two or more adjoining counties;

(g) the conditions of employment of every sheriff shall, subject to the foregoing provisions of this section, be such as the Minister for Finance, after consultation with the Minister, shall from time to time determine.”

13 . The mandatory retirement age is fixed under s.12(6)(b) and remains unchanged since 1945, with one exception.

14 . Whilst the Court Officers Act, 1945 specified the retirement age for Sheriffs to be 70, in 1951 the then holder of the office of Sheriff in Dublin was allowed to remain in office until the age of 72. Section 6(2) of the Courts Officer Act, 1951 provided for the once off retirement age of 72 in respect of the said sitting sheriff in Dublin as follows:

“6.—

…

(2) Notwithstanding paragraph (b) of subsection (6) of section 12 of the Act of 1945, the age of retirement from the office of sheriff of the person holding the office of sheriff of the county borough of Dublin on the date of the passing of this Act shall be seventy-two years.

15 . Specific explanation has been provided in evidence for this one-off exception which was effected by statutory amendment in 1951.

16 . Different measures regulate retirement ages across the public service. With the exception of “ fast...