Prendergast v Higher Education Authority and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 30 July 2008
• Neutral Citation: [2008] IEHC 257
• Court: High Court
• Date: 30 July 2008

[2008] IEHC 257

THE HIGH COURT

No. 7838 P/2007

Prendergast v Higher Education Authority & Ors

BETWEEN

FRANK PRENDERGAST

PLAINTIFF

AND

THE HIGHER EDUCATION AUTHORITY, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CENTRAL APPLICATIONS OFFICE BOARD OF DIRECTORS REPORT 2008

WORKING GROUP ON UNDERGRADUATE EDUCATION & TRAINING REPORT: MEDICAL EDUCATION IN IRELAND A NEW DIRECTION 2006

HIGHER EDUCATION AUTHORITY ACT 1971 S4

HIGHER EDUCATION AUTHORITY ACT 1971 S6

HIGHER EDUCATION AUTHORITY ACT 1971 S3

HIGHER EDUCATION AUTHORITY ACT 1971 S7

HIGHER EDUCATION AUTHORITY ACT 1971 S8

HIGHER EDUCATION AUTHORITY ACT 1971 S9

HIGHER EDUCATION AUTHORITY ACT 1971 S10

HIGHER EDUCATION AUTHORITY ACT 1971 S11

HIGHER EDUCATION AUTHORITY ACT 1971 S13

HIGHER EDUCATION AUTHORITY ACT 1971 S16

HIGHER EDUCATION AUTHORITY ACT 1971 S17

HIGHER EDUCATION AUTHORITY ACT 1971 S12

HIGHER EDUCATION AUTHORITY ACT 1971 S3(d)

CONSTITUTION ART 6

CONSTITUTION ART 15.2

CONSTITUTION ART 28A

CONSTITUTION ART 28

CONSTITUTION ART 50

CONSTITUTION ART 61

BUTLER KEANE ON LOCAL GOVERNMENT 2ED 2003 CHAP I

CONSTITUTION ART 49

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

WEBB v IRELAND 1988 IR 353

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 8.2.10

CONSTITUTION ART 29.4.2

CONSTITUTION ART 2

TWENTY SEVENTH AMDT OF THE CONSTITUTION ACT 2004

IRISH NATIONALITY & CITIZENSHIP ACT 2004

BODE v MIN JUSTICE & ORS UNREP SUPREME 20.12.2007 2007 IESC 62

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 5.1.18

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

CROTTY v AN TAOISEACH 1987 IR 713

LANDERS v AG 1973 109 ILTR 1

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 545 2000/19/7191

O'NEILL v MIN FOR AGRICULTURE 1998 1 IR 539

HUMPHREY v MIN FOR ENVIRONMENT 2001 1 ILRM 241

ROAD TRAFFIC ACT 1961 S82(2)

EQUAL STATUS ACT 2000 S3

EQUALITY ACT 2004 S48

EQUAL STATUS ACT 2000 S21

EQUAL STATUS ACT 2000 S27

EQUALITY ACT 2004 S61

EQUAL STATUS ACT 2000 S28

DOHERTY v SOUTH DUBLIN CO COUNCIL (NO 2) 2007 2 IR 696

EQUAL STATUS ACT 2000 S7

EQUAL STATUS ACT 2000 S3(d)(i)

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 40.1

CONSTITUTION ART 42.1

QUINNS SUPERMARKET LTD v AG 1972 IR 1

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

DILLANE v AG 1980 ILRM 167

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, RE 2000 2 IR 321 2001 1 ILRM 81

MACMATHUNA v IRELAND & AG 1995 1 IR 484 1995 1 ILRM 69

ART 26 OF THE CONSTITUTION & THE REGULATION OF INFORMATION (TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1

HIGHER EDUCATION AUTHORITY ACT 1971 S2

OIREACHTAS JOINT COMMITTEE ON HEALTH & CHILDREN SECOND REPORT: RESTRICTIVE PRACTICES IN MEDICAL TRAINING IN IRELAND 2004

EC TREATY ART 82

CONSTITUTIONAL LAW

Personal rights

Equality - Discrimination - Whether constitutional guarantee of equality breached by restriction from paying fees for non-European Union places on undergraduate degree courses in medicine - Whether discrimination for legitimate purpose - Quinn's Supermarket v AG [1972] IR 1, Dillane v Ireland [1980] ILRM167, Planning and Development Bill 1999 [2000] 2 IR 321, MacMathúna v Attorney General [1995] 1 IR 484 and Information (Termination of Pregnancies) Bill, 1995 [1995] 1 IR 1 followed - Equal Status Act 2000 (No 8), ss. 3, 21, 27 and 28 - Equality Act 2004 (No 24), ss 48 and 61 - Constitution of Ireland 1937, Articles 40.1 and 42 - Claim dismissed (2007/7838P - Charleton J - 30/7/2008) [2008] IEHC 257

Prendergast v Higher Education Authority

CONSTITUTIONAL LAW

Separation of powers

Executive power - Derivation of powers of government - Government policy - Statutory power - Access to third level education -Whether quota on number of places available to European Union students in undergraduate degree courses in medicine is unconstitutional and lacks statutory foundation - Whether government has authority to make paid places on undergraduate degree courses in medicine available to non-European Union nationals without making such places available to European Union national - Whether direction to fix quota on places ultra vires -Whether there is statutory basis on which European nationals may not pay fees set for foreign entrants and so gain entry as student paying at enhanced level - Howard v Commissioners of Public Works [1994] 1 IR 101, Webb v Ireland [1988] I.R. 353, Bode v Minister for Justice [2007] IESC 62, [2008] 3 IR 664 considered; TD v Minister for Education [2001] 4 IR 259 followed - Higher Education Authority Act 1971 (No 22), ss 3, 6, 7, 8, 9, 11, 12, 13 and 17 - Constitution of Ireland 1937, Articles 2, 6, 15.2, 17.2, 28, 49, 50 and 61 - Claim dismissed (2007/7838P - Charleton J - 30/7/2008) [2008] IEHC 257

Prendergast v Higher Education Authority

EUROPEAN UNION

Competition

Equal treatment of Irish and European students under Treaty - Whether fixing by Government of quota on provision of free or highly subsidised places in undergraduate medical degree programmes anti-competitive - Whether policy of fixing quotas an abuse of Government's dominant position - Treaty of Rome 1957, Article 82 - Claim dismissed (2007/7838P - Charleton J - 30/7/2008) [2008] IEHC 257

Prendergast v Higher Education Authority

Facts: The plaintiff unsuccessfully applied on two separate occasions for entry to medical schools in Ireland. The plaintiff failed to attain sufficient points in his Leaving Certificate Examination to secure a place. However, the points achieved by the plaintiff would have been sufficient for a non European applicant to secure a place due to the fact that the Irish Government reserved a fixed quota of places in medical schools for European citizens and created a separate quota for non European citizens at a lower threshold. Non European medical students were required to pay fees in order to study in Ireland. The income from those fees contributed to the cost of running medical schools and training medical graduates. A new policy for educating doctors in Ireland, based on a report known as the Fottrell report was adopted in 2006 through the Ministers for Education and Health, and by suggestion from them, by the Higher Education Authority. In this case the plaintiff alleged that setting a quota on places available to European Union students was unlawful, that any such direction was beyond the powers conferred on the defendants by the Higher Education Authority Act 1971, that the quota system was unconstitutional and was contrary to the relevant treaties of the European Union. The plaintiff maintained that he ought to be able to purchase one of the places set aside for non European students.

Held by Charleton J. in dismissing the case: That the Higher Education Authority had clear statutory powers to make policy decisions in relation to institutions of higher education and to provide grants of money to those institutions based on conditions that were within its competence under the Higher Education Authority Act 1971. The Government was entitled to set a policy for the training of a specific number of medical graduates to meet the needs of the State, to decide what funds were appropriate to be disbursed in that regard, to decide that particular forms of education should be free, or should be contributed to by fees and to decide that foreign students could take up space places at an economic cost to the benefit of the economy. The unequal treatment of European and Non European citizens was based on a reasonable resolution of the conflict of constitutional rights and was neither arbitrary nor capricious. Furthermore, the system did not breach competition law.

Reporter: L.O’S.

1 1. The plaintiff is a Dubliner of twenty years of age and wants to become a doctor. In the competitive system of entry into the five medical schools in Ireland, his performance, over two occasions, on points in the Leaving Certificate examination has left him short of what was required. Were he not a European citizen, meaning for the purposes of this case, a citizen of a Member State of the European Union or of the wider countries forming part of the European Economic Area, however, his examination performance would have been adequate to secure him a place. This is because the Government has reserved a fixed quota of places in medical school for European citizens. This is what the plaintiff was obliged to compete for. In addition, a service industry has been created in education whereby non-Europeans can compete for separate places in the medical schools, to which European citizens are denied entry. He claims this is unlawful.

The Plaintiff's Account

2 2. The plaintiff was born in Ireland, though his parents also worked abroad, and has lived in Ireland, in China and in Malaysia. He was partially brought up in these places. He attended Gonzaga College in Dublin from 2000 to 2006. After the Junior Certificate, there is a transition year before the Leaving Certificate studies begin. During that year, students relax and also do some work experience. The plaintiff shadowed a gastroenterologist in St. Vincent's Hospital for a week. He was so stimulated by the experience that he decided that his vocation was in medicine. The maximum number of points that can be achieved in the Leaving Certificate, on the basis of A1s in six subjects, is 600 points. Everyone who wants to go to university, or any other participating third level college in Ireland, makes an application for a place in the course of their choice through the Central Applications Office. This was founded in 1976 to process Leaving Certificate students from Ireland and all European citizen applicants. Forty-four institutions at third level are involved; see...