Prendergast v Higher Education Authority

• Jurisdiction: Ireland
• Judgment Date: 30 July 2008
• Docket Number: [2007 No. 7838 P]
• Date: 30 July 2008
• Court: High Court

Prendergast v. Higher Education Authority

Frank Prendergast

Plaintiff

and

The Higher Education Authority, The Minister for Education and Science, Ireland and The Attorney General

Defendants

[2008] IEHC 257,

[2007 No. 7838 P]

High Court

Constitution - 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 unconstitutional and lacking statutory foundation - Whether government 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 statutory basis on which European nationals may not pay fees set for foreign entrants and so gain entry as student paying at enhanced level - 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.

Constitution - 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 - 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.

Community law - Competition - Dominant position - Medical training - 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 abuse of Government's dominant position - Treaty of Rome 1957, Article 82.

The plaintiff achieved 550 points in his leaving certificate in 2007, just below the 570 points required for an Irish citizen or European Union national to secure a place on a degree course in medicine. He wrote to all third level institutions with undergraduate medicine degree courses offering to pay the fees charged to non-European Union students, for whom places were set aside. All five institutions refused to offer the plaintiff a place on this basis. It was contended that each institution was restricted by the Higher Education Authority to offering a quota of places to European Union school leavers based on academic merit, and an entirely separate quota for non-European Union nationals subject to the payment of course fees and proof of academic ability. The plaintiff's academic results in the leaving certificate were not competitive for a European Union place, and as he was a European Union national, and not a non-European Union national, he was not eligible for consideration for a non-European Union place in medicine, regardless of his willingness to pay the full course fees.

The plaintiff sought a declaration that the quota on the number of places available to European Union students in undergraduate degree courses in medicine introduced by the first and/or second defendant was unconstitutional, lacked statutory foundation and was ultra vires the Higher Education Authority Act 1971.

Held by the High Court (Charleton J.), in dismissing the claim, 1, that 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 spare places at the full economic cost to the benefit of the economy.

• T.D. v. Minister for Education [2001] 4 I.R. 259,O'Neill v. Minister for Agriculture[1998] 1 I.R. 539 and Humphrey v. Minister for the Environment[2001] 1 I.R. 263 considered.

2. 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 Act 1971.

3. That it would not always be necessary for the government to have to rely on statutory authority in order to exercise executive power. Pursuant to Article 49 of the Constitution, a residue of inherited powers, derived from those exercisable under the royal prerogative, devolved to Saorstát Éireann in 1922 and thence to Ireland in 1937, in addition to those provided by statute and at common law. It is clear, however, that the government would not be entitled to rely on aspects of the prerogative inherited from Ireland's rule by another power that related to the dignity of the monarch and which were inconsistent with the Christian and democratic nature of the State under the Constitution.

Howard v. Commissioners of Public Works [1994] 1 I.R. 101, Webb v. Ireland [1988] I.R. 353 and Bode (a minor) v. Minister for Justice [2007] IESC 62, [2008] 3 I.R. 663 considered.

4. That central to the exercise of government power was the establishment of policies for the proper governance of Ireland and the courts had no role in policy making.

• T.D. v. Minister for Education [2001] 4 I.R. 259followed.

5. That the current system in the allocation of places as between European Union and non-European Union citizens in undergraduate degree courses in medicine was a carefully thought through government policy based on fair and sound reasoning. Where, as between potential issues concerning equality of treatment, the government made a resolution, as between valid legal choices, the courts would not condemn such discrimination as being in breach of Article 40.1 and should not interfere once that resolution was a reasonable one based upon a policy that was neither arbitrary nor capricious.

Quinn's Supermarket v. Attorney General [1972] I.R. 1, Dillane v. Ireland [1980] I.L.R.M 167, The Planning and Development Bill 1999 [2000] 2 I.R. 321,MacMathúna v. Attorney General [1995] 1 I.R. 484 and Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1 followed.

6. That the provision of medical education was so expensive that it could not be considered anti-competitive of the government to set a reasonable quota in terms of what it would spend on the provision of free or highly subsidised places. Nor was it an abuse by the government, through undertakings, of a dominant position under Article 82 of the Treaty, in circumstances in which an independent college was free to opt out of government subsidies to pursue an economic policy based on the open market.

Cases mentioned in this report:-

Bode (a minor) v. Minister for Justice [2007] IESC 62, [2008] 3 I.R. 663.

Brennan v. Attorney General [1994] I.L.R.M. 355.

Buckley and Others (Sinn Féin) v. Attorney General and Another[1950] I.R. 67.

Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.

T.D. v. Minister for Education [2001] 4 I.R. 259.

Dillane v. Ireland [1980] I.L.R.M. 167.

Doherty v. South Dublin County Council (No. 2)[2007] IEHC 4, [2007] 2 I.R. 696.

The Employment Equality Bill, 1996 [1997] 2 I.R. 321.

Howard v. Commissioners of Public Works [1994] 1 I.R. 101; [1993] I.L.R.M. 665.

Humphrey v. Minister for the Environment [2001] 1 I.R. 263; [2001] 1 I.L.R.M. 241.

Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1.

Landers v. Attorney General (1973) 109 I.L.T.R. 1.

MacMathúna v. Attorney General [1995] 1 I.R. 484; [1995] 1 I.L.R.M. 69.

O'Neill v. Minister for Agriculture [1998] 1 I.R. 539; [1997] 2 I.L.R.M. 435.

The Planning and Development Bill, 1999 [2000] 2 I.R. 321.

Quinn's Supermarket v. Attorney General [1972] I.R. 1.

Sinnott v. Minister for Education [2001] 2 I.R. 545.

The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567; (1968) 102 I.L.T.R. 1.

Webb v. Ireland [1988] I.R. 353, [1988] I.L.R.M. 565.

Plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Charleton J., infra.

By plenary summons dated the 23rd October, 2007, the plaintiff claimed, inter alia, various declaratory reliefs impugning the quota on the number of places available to European Union students in undergraduate degree courses in medicine that had been introduced by the first and/or second defendant.

The action was heard by the High Court (Charleton J.) from the 15th to 23rd July, 2008.

Cur. adv. vult.

Charleton J. 30th July, 2008

[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, 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] The plaintiff was born in Ireland, though his parents also worked abroad, and has lived in Ireland, 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...