Minister for Justice, Equality and Law Reform v Workplace Relations Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 15 June 2017
• Neutral Citation: [2017] IESC 43
• Docket Number: [Appeal Nos: 221/2009 and 225/2009],[S.C. Nos. 221 & 225 of 2009]
• Court: Supreme Court
• Date: 15 June 2017

[2017] IESC 43

THE SUPREME COURT

Clarke J.

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

O'Malley Iseult J.

[Appeal Nos: 221/2009 and 225/2009]

Between/

Minister for Justice, Equality and Law Reform

and

the Commissioner of An Garda Siochána

Applicants/Respondents

and

The Workplace Relations Commission

Respondent/Appellant

and

Ronald Boyle, Gerard Cotter

and

Brian Fitzpatrick

Notice Parties

Unlawful discrimination – Jurisdiction – Employment equality law – Appellant seeking to disapply a statutory instrument made by the respondent – Whether appellant had jurisdiction to set aside or disapply substantive law

Facts: The notice parties, Mr Boyle, Mr Cotter and Mr Fitzpatrick, brought complaints before the Equality Tribunal alleging that a maximum recruitment age for members of An Garda Síochána amounts to unlawful discrimination on the grounds of age. An issue arose between the applicants/respondents, the Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochána, and the Tribunal as to whether the Tribunal had any jurisdiction to entertain the complaints. The Minister's argument was that the Tribunal did not have jurisdiction to set aside or disapply substantive law and that the Tribunal did not, therefore, have jurisdiction to embark on an inquiry into whether the relevant maximum recruitment age amounted to unlawful discrimination. The Minister suggested that it was only the High Court, exercising its judicial review function, which could disapply legislation on the grounds that it breached European Union employment equality law. The Tribunal determined that it would go ahead with its inquiries on the basis that it would, as part of that process, amongst other things, decide whether it had jurisdiction to make any determinations at all. The Minister ultimately took the view that the Tribunal had exceeded its jurisdiction in so doing and brought judicial review proceedings before the High Court. That court decided that the Tribunal did not have a jurisdiction to disapply a statutory instrument made by the Minister. The Tribunal appealed to the Supreme Court against that decision of the High Court. As a result of the Workplace Relations Commission Act 2015, the relevant functions of the Tribunal were transferred to the respondent/appellant, the Workplace Relations Commission.

Held by Clarke J that, as a matter of national law, a person or body exercising statutory power (not being a court established under the Constitution) does not have jurisdiction to commence a process where the only positive conclusion would involve setting aside or disapplying a measure of legislation, whether primary or secondary. On that basis Clarke J concluded that the Tribunal would not, as a matter of national law, have jurisdiction to entertain the complaints of the notice parties in this case for the only lawful conclusion in favour of those notice parties would require the disapplication of the Garda Síochána (Admissions and Appointments) (Amendment) Regulations, 2014 (S.I. No. 749 of 2004). Clarke J held that the High Court would have jurisdiction, were it persuaded that it were necessary so to do so as to ensure the vindication of rights conferred by European Union employment equality law, to disapply the Regulations. Clarke J also held that the High Court would have jurisdiction to make any orders required to vindicate rights conferred by Union law. In those circumstances Clarke J considered that the provision of national procedural law, which would require that complaints of this type, involving as they necessarily would in order that there be a successful outcome, the disapplication of a measure of national legislation, must be brought to the High Court, complies with the principles of equivalence and effectiveness. Clarke J was satisfied that the division of competence between the Tribunal and the High Court in that way does comply with those principles.

Clarke J held that the Court would make a reference of certain issues of European law to the CJEU under the provisions of Art. 267 of the TFEU. The order of reference was directed to the issue as to whether Union employment equality legislation requires that the Tribunal must have a jurisdiction to embark on the hearing of the complaints.

Referral to the Court of Justice of the EU.

Judgment of Mr. Justice Clarke delivered on the 15th June, 2017.

1. Introduction

1.1 The underlying question which gives rise to these proceedings concerns an allegation that a maximum recruitment age for members of An Garda Síochána amounts to unlawful discrimination on the grounds of age. In that context complaints were brought by the notice parties before the Equality Tribunal ('the Tribunal'). While it will be necessary to describe what happened in relation to those complaints with greater precision in due course it is fair to say that ultimately an issue arose between the applicants/respondents (whom I will refer to collectively as 'the Minister' unless the context otherwise requires) and the Tribunal as to whether the Tribunal had any jurisdiction to entertain the complaints.

1.2 The reason for the asserted lack of jurisdiction stemmed from the fact that the relevant maximum recruitment age was provided for in secondary legislation being the Garda Síochána (Admissions and Appointments) (Amendment) Regulations, 2014 (S.I. No. 749 of 2004) ('the Regulations'). It followed that the maximum recruitment age was determined by substantive law rather than by any administrative decision of the Minister or, indeed, the second named applicant/respondent, the Commissioner of An Garda Síochána. The Minister's argument was that the Tribunal did not have jurisdiction to set aside or disapply substantive law and that the Tribunal did not, therefore, have jurisdiction to embark on an inquiry into whether the relevant maximum recruitment age amounted to unlawful discrimination. In substance the Minister suggested that it was only the High Court, exercising its judicial review function, which could disapply legislation on the grounds that it breached employment equality law and, in particular, European Union employment equality law.

1.3 It would be fair to say that the Tribunal acknowledged that there might be an issue in that regard but determined that it would go ahead with its inquiries on the basis that it would, as part of that process, amongst other things, decide whether it had jurisdiction to make any determinations at all.

1.4 The Minister ultimately took the view that the Tribunal had exceeded its jurisdiction in so doing and brought judicial review proceedings before the High Court. That court decided that the Tribunal did not have a jurisdiction to disapply a statutory instrument made by the Minister ( The Minister for Justice, Equality and Law Reform & anor v. The Director of the Equality Tribunal & ors [2009] IEHC 72). It is against that decision of the High Court that this appeal was brought by the Tribunal. In that context it should be noted that, as a result of the Workplace Relations Commission Act, 2015 ('the 2015 Act'), the relevant functions of the Tribunal have now been transferred to the Workplace Relations Commission. Nothing turns on that change for the purposes of this appeal. While the respondent/appellant is now named as the Workplace Relations Commission, the events with which this appeal is concerned happened while the relevant jurisdiction was vested in the Tribunal and I will continue to describe the relevant body as the Tribunal in this judgment although references to the current legal situation clearly relate to the Workplace Relations Commission rather than the Tribunal.

1.5 Furthermore the High Court did not award the Minister the costs of her successful defence of these proceedings. The Minister has cross appealed against that costs determination. However, that cross appeal has been deferred pending a decision on the substantive appeal brought by the Tribunal. Against that very general background it is necessary to consider the issues which arise on this appeal.

2. Issues

2.1 It is important to start by emphasising that the Court, on this appeal, is not concerned with the substantive question as to whether the maximum recruitment age for An Garda Síochána amounts to a breach of equality law. Rather, the Court is concerned with the question of whether the Tribunal has jurisdiction to deal with that matter in the particular context of a case, such as this where, as already noted, the relevant age is fixed by law.

2.2 In addition it does need to be acknowledged that it is accepted on behalf of the Minister that, should it be shown that the maximum recruitment age is in breach of law and in particular European Union employment equality law, then the notice parties would have a remedy in that the High Court would have jurisdiction to make appropriate orders disapplying any measure of national law which was found to be in breach of the European Union employment equality legislative regime. Thus the issue was not as to whether it is possible to disapply the law providing for the maximum recruitment age of members of An Garda Síochána at all but rather was as to whether that task, should it be required so as to ensure compliance with relevant European Union law, was one which was conferred on the Tribunal or rather was one which is reserved to the High Court.

2.3 It seems to me that it is appropriate to consider the jurisdiction issue initially as a matter of national law. Therefore, the first question which arises is as to whether, purely on the basis of Irish law, the Tribunal could have a jurisdiction to disapply the Regulations. If the answer to that question is yes then no issue of European Union law would, of course, arise. The Tribunal would have jurisdiction, the appeal would have to be allowed and the Tribunal would have to get on with the...