McLoughlin v The Minister for Social Welfare

• Jurisdiction: Ireland
• Judgment Date: 01 January 1959
• Date: 01 January 1959
• Docket Number: [1954. No. 2137]
• Court: Supreme Court

McLoughlin v. Minister for Social Welfare

In the Matter of the Social Welfare Act, 1952 (No. 11 of 1952). On the Application of THOMAS D. McLOUGHLIN, Applicant, and THE MINISTER FOR SOCIAL WELFARE and PATRICK J. BYRNE

Respondents.

[1954. No. 2137]

Supreme Court.

Employment insurance - Social welfare - Solicitor in Chief State Solicitor's office - Whether such employment insurable - Whether employment in the civil service of the Government - Decision of Appeals Officer - Decision in compliance with ministerial minute - Minute not shown to appellant - Natural justice - Whether proper hearing by Appeals Officer - Social Welfare Act, 1952 (No. 11 of 1952), s. 42, sub-s. 1, s. 44, sub-ss. 1 and2 (a), s. 45 (b), 1st Sch., Part I, para. 3 (a) - Ministers and Secretaries Act, 1924 (No. 16 of 1924), s. 1, sub-s. 1, s. 6.

A temporary assistant solicitor employed in the Chief State Solicitor's office is not employed in the civil service of the Government within the meaning of the First Schedule, Part I, para. 3(a), of the Social Welfare Act, 1952, so as to be insurable under the provisions of the said Act.

So held by the Supreme Court (Kingsmill Moore, O'Daly and Maguire JJ., Maguire C.J. dissenting).

Held further by the Supreme Court, that appeals officers and deciding officers under the Social Welfare Act, 1952, are required to be free and unrestricted by ministerial control in discharging their functions under the Act.

Judgment of the High Court (Dixon J.), reversed.

Summary Summons.

Thomas D. McLoughlin qualified as a solicitor in Trinity Term, 1921. In December, 1948, he was appointed to the post of temporary assistant solicitor in the office of the Chief State Solicitor. Upon taking up his appointment, he signed a document dated the 22nd December, 1948, setting out various conditions of service. Paragraph 5 of the said document was as follow:—

"5. The person appointed will be required to perform any duties assigned to in from time to time by direction of the Attorney General as appropriate to the post. He will also be required to provide himself at his own expense with any robes which may be required for attendance in Court."

A minute of the 30th December, 1953, from the Legal Staff officer to Mr. McLoughlin was in the following terms:—". . . I confirm:—(a) That the Taoiseach approved your appointment to the post of temporary assistant solicitor in the Office of the Chief State Solicitor created under the scheduling order made pursuant to the provisions of section 10 of the Civil Service Regulation Act, 1924.

(b) That the duties are professional in so far as they may be discharged only by a qualified solicitor.

(c) That the duties are performed under the directions of the Attorney General or the Chief State Solicitor acting on his behalf."

Paragraph (d) set out the salary then payable.

In May, 1953, Mr. McLoughlin was requested to furnish employment insurance cards (his remuneration being within the insurable limit) for stamping in accordance with the provisions of the Social Welfare Act, 1952; he refused to do so. Eventually, Mr McLoughlin appealed to a deciding officer under the provisions of the Social Welfare (Insurance Appeals) Regulations, 1952, in pursuance of the provisions of s. 42 of the Social Welfare Act, 1952. On the 23rd February, 1954, he was informed by letter that it had been decided that his employment was insurable. The letter also informed him that if he were dissatisfied with that decision, he should notify the Department in writing within 21 days of the date of the letter. By letter, dated the 13th March, 1954, Mr. McLoughlin gave notice of appeal against the said decision to the Secretary of the Department of Social Welfare and stated the grounds upon which the appeal was based. By letter, dated the 10th May, 1954, he was informed by the Department of the time and place of an oral hearing of his appeal by the appeals officer, Patrick J. Byrne.

At the hearing, Mr. McLoughlin stated his submissions and arguments. At the conclusion thereof the appeals officer stated that he was unable to accept Mr. McLoughlin's contentions, as he was bound to adhere to a direction given by the Minister for Finance to the effect that Mr. McLoughlin was employed in the civil service of the Government. Mr. McLoughlin then made no further submissions.

By letter, dated the 3rd July, 1954, he was informed that his employment was insurable under the Social Welfare Act, 1952, and he then commenced the present proceedings, by way of appeal from that decision. The appeal was by way of summary summons on the following grounds:—

1, The said appeals officer was wrong in law in holding that the applicant's position as temporary assistant solicitor in the office of the Chief State Solicitor is employment in the civil service of the Government.

2, The said appeals officer was wrong in law in holding that the applicant was an employed contributor under s. 4, sub-s. 1, of the said Act.

3, The said appeals officer had no or no proper evidence upon which to make a valid determination pursuant to s. 44 of the said Act.

4, The said decision was contrary to natural justice and was made in disregard of the rights and status of the applicant.

Dixon J:—

The decision of the appeals officer in this case is right. The appellant is an assistant solicitor in the Chief State Solicitor's office. He is employed in a temporary capacity, but that makes no difference to this case. The office of the Chief State Solicitor is one of the particular services assigned to the Attorney General under the Ministers and Secretaries Act, 1924, and there is a difference in the wording of the heading to the Ninth Part of the Schedule to the Act and the wording of the other headings in that Schedule which is, perhaps, significant.

Sect. 6 of the Act of 1924 vests in the Attorney General particular functions and duties and also the control and administration of the services specified in the Ninth Part of the Schedule. Sect. 6, sub-s. 1, provides:—"6.—(1) There shall be vested in the Attorney-General . . . the business powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General for Ireland, the Solicitor-General for Ireland, the Attorney-General for Southern Ireland, the Solicitor-General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act and also the administration and business generally of public services in connection with the representation of the Government of Saorstat Eireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively, together with the duty of advising the Executive Council and the several Ministers in matters of law and of legal opinion."

As far as the office of the Chief State Solicitor is concerned, the Attorney General is given the administration and control of that office and this position continued after the Constitution of 1937.

In the case of Departments of State, the services given to each Department are set out in s. 1 of the Act of 1924, and there is no conflict between that section and s. 6 of the Act. The Department of the President of the Executive Council is now the Department of An Taoiseach by adaptation. In s. 1 of the Ministers and Secretaries Act, 1924, the Taoiseach is given the administrative control of and responsibility for such public services and the business, powers, duties and functions thereof as may not for the time being be comprised in any of the Departments of State constituted by that Act. The particular services assigned to the Attorney General in the Ninth Part of the Schedule, thus, come under the administrative control, and are the responsibility of, the Taoiseach.

The position of the Attorney General is not dealt with in the Constitution of 1922, but is dealt with in Article 30 of the Constitution of 1937. For the definition of the Attorney General's powers, functions and duties recourse must be had to the Ministers and Secretaries Act, 1924. Taking Article 30 and the relevant sections of the Ministers and Secretaries Act together, what is the position of the appellant in considering the phrase, "employment in the civil service of the Government"? It is not necessary for the purpose of this appeal to decide whether the employment is under a contract for services or a contract of service, but I think it is clear that Mr. McLoughlin is employed under a contract of service even though he uses his professional skill and knowledge in the discharge of his duties. The net question is whether he is employed in the civil service of the Government."Civil service" in this context excludes military service and service in the naval or police services, but it includes service in any Department of the Government set up by the Ministers and Secretaries Act. It does not necessarily include all employment in the service of the Government, but it does include service in any Department of State in connection with the exercise of the executive power of the State. The Attorney General is given a special position under the Constitution and under the Ministers and Secretaries Act, but he is not in the position of an independent executive authority. As far as the exercise of the executive power is concerned, the Attorney General stands in an intermediate position next to the Taoiseach in the administrative control of certain services. I must regard solicitors employed in the Chief State Solicitor's office as employed in the Department of the Taoiseach in connection with one aspect of the exercise of the executive authority. This view...