Min for Justice & Commissioner of Garda Síochána v Director of the Equality Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 17 February 2009
• Neutral Citation: [2009] IEHC 72
• Court: High Court
• Docket Number: [2008 No. 793
• Date: 17 February 2009

[2009] IEHC 72

THE HIGH COURT

[No. 793 J.R/2008]

Min for Justice & Commissioner of Garda Síochána v Director of the Equality Tribunal

JUDICIAL REVIEW

BETWEEN

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA,

APPLICANTS

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL

RESPONDENT

AND

RONALD BOYLE, GERARD COTTER AND BRIAN FITZPATRICK

NOTICE PARTIES

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) REGS 1988 SI 164/1988 REG 5(1)

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) (AMDT) REGS 2001 SI 498/2001

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) (AMDT) REGS 2004 SI 749/2004

EEC DIR 75/117

EEC DIR 76/207

EEC DIR 2002/73

EEC DIR 76/207

EMPLOYMENT EQUALITY ACT 1998 S82

EQUALITY ACT 2004 S36

EEC DIR 2000/78 ART 1

EEC DIR 2000/78 ART 9.1

EQUALITY ACT 2004 S25

IMPACT v MIN FOR AGRICULTURE 2009 AER (EC) 306 2008 2 CMLR 47

CONSTITUTION ART 34

POLICE FORCES AMALGAMATION ACT 1925 S14

CONSTITUTIONAL LAW

Jurisdiction

European law - Jurisdiction of administrative bodies and courts of limited jurisdiction - Jurisdiction of Equality Tribunal - An Garda Síochána eligibility - Age discrimination - Whether Equality Tribunal entitled to make a declaration of inconsistency under Article 34 of Constitution - Whether national legislation must be construed in light of European law - Whether body defined by statute entitled to overrule statutory instrument - Impact v. Minister for Agriculture and Food (Case C-268/06) [2008] ECR I-02483 followed - Employment Equality Act 1998 (No 21), s 82 - Equality Act 2004 (No 24) - Constitution of Ireland 1937, Article 34 - Relief granted (2008/793JR - Charleton J - 17/2/2009) [2009] IEHC 72

Minister for Justice, Equality and Law Reform v Equality Tribunal

Facts: The question arose as to whether the Equality Tribunal, a body defined by Statute was entitled to commence a hearing that had the result that it assumed a legal entitlement to overrule a statutory instrument made by the first application where by law it was not so entitled to do. The notice parties applied to train as members of Garda Siochana but were deemed ineligible by virtue of their age, which was governed inter alia by the Garda Siochana (Admission and Appointments) (Amendments) Regulations 2004. A raft of equality measures were introduced in Ireland, in particular the Equality Act 2004 that sought to give effect to Council Directive 2000/78/EC, which prohibited discrimination on the basis of age.

Held by Charleton J. that the respondent had acted from a proper zeal against age discrimination. However, the respondent could not make a ruling in breach of a statutory instrument. The complainants should have been told that their only remedy was to seek a declaration from the High Court that national law purported to overrule a European law obligations. The Court would express no view on such a matter.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Charleton delivered on the 17th day of February, 2009

2 1.The question for decision in this case is whether the Equality Tribunal, as a body whose powers are defined by statute, is entitled to commence a hearing that has the result that it assumes a legal entitlement to overrule a statutory instrument made by the first applicant where by law it is not entitled so to do. My view is that it is not.

Background

3 2.In 2005 the notice parties applied to train as members of An Garda Síochána. They were then aged between 36 and 48 years. The relevant personnel department wrote to each of them explaining that in order to be eligible, applicants had to be at least 18 years of age and under 35 as of 1 ^st September in the year in which they apply. This refusal was followed by a complaint from them to the Commissioner of An Garda Síochána, and to the Equality Tribunal that age discrimination stood in the way of their entering into training. It is only necessary to briefly quote, without conviction, from the letter written by the first notice party to the Commissioner, dated the 6 ^rd January, 2006, as follows:-

"As a physically fit - 48 year old - married man with two young children, I believe I have amassed life skills/experience which are invaluable to the role of police officer dealing with the public in every day human situations. These particular attributes have long been recognised by neighbouring police forces throughout the British Isles, as well as around the world where the upper age limit for entry is 50 plus.

I would like to know why, in an era of Justice, Equality and Law Reform, being 48 years old - I am considered ineligible to become a Member of the Garda Síochána to serve society - of which I am very much representative of - when a fellow citizen of 35 years of age is? I do not believe this age limit is justified or defensible under equality legislation. I would therefore ask you to reconsider my application and to re-instate my invitation to examination."

4 3.By reply, the Commissioner pointed out that entry to training within An Garda Síochána is governed by the Garda Síochána (Admissions and Appointments) Regulations 1988 ( S.I, No. 164 of 1988), as amended. Regulation 5(1), as amended by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2001 (S.I. No. 498 of 2001) and the Garda Síochána (Admission and Appointments) (Amendment) Regulations 2004 (S.I. No. 749 of 2004), now reads:-

5 2 "5. (1) Subject to these Regulations, the Commissioner shall not admit a person as a trainee unless-

6 ...

7 (c) he is satisfied that the person is at least 18, but under 35, years of age on the first day of the month in which an advertisement of the vacancy to which the admission relates was first published in a national newspaper."

Equality Legislation

8 4.The Employment Equality Act 1998 was passed in order to make discrimination unlawful and to ensure equal access to employment, training, promotion and working conditions. In part, it originated in Council Directive 75/117/E.E.C. of 10 February, 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, O.J. L045 19. 2.1975 and Council Directive 76/207/E.E.C. of 9 February, 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, O.J. L39 14. 2.1976. The Act of 1998 was in turn amended by the Equal Status Act 2000 and then subsequently by the Equality Act 2004. In its long title, the Act of 2004 recited that among its purposes was to implement the principle of equal treatment established by Council Directive 2000/78/E.C. of 27 November, 2000 establishing a general...