Seosamh Macdonncha and Another v Minister for Education and Skills and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 29 May 2013
• Neutral Citation: [2013] IEHC 226
• Court: High Court
• Date: 29 May 2013

MacDonncha & Sweeney v Min for Education & Ors

BETWEEN

SEOSAMH MACDONNCHA AND KATIE SWEENEY

APPLICANTS

AND

MINISTER FOR EDUCATION AND SKILLS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2013] IEHC 226

[No. 790 J.R./2012]

THE HIGH COURT

Constitutional law – Government reform – Enactment of legislation – Employment – Vocational educational sector

Facts: The applicants were both statutory officers whose offices and entitlements were governed by the Vocational Educational Acts 1931-2001. The Government in order to reform and restructure the vocational educational sector were planning to introduce the Educational Training Board Act 2013; this was to have the effect of abolishing the Vocational Educational Committees for which both applicants were Chief Executive Officers. The reorganisation of the public service was informed by the Croke Park Agreement 2009 which promoted assurances regarding employment security; both applicants through a Circular released in 2012 became aware of the inconvenience they would suffer as a result of their redeployment. As a result of the reorganisation plans an allowance they had enjoyed previously had also been terminated.

The applicants claimed the Circular which outlined the categorisation of the new entities created, was unlawful as it was released before the enactment of the new legislation. Also that the Croke Park Agreement had not been complied with and the termination of the allowance had been unlawful.

Hogan J held that statutory offices could not be terminated by executive action alone. The Government was however merely planning for future legislative changes, and this did not circumvent the legislative regime in force at the time.

The redeployment of the applicants did not violate the terms of the Croke Park Agreement and the agreement itself was held not to give rise to legitimate expectations due to its predication on flexibility.

The payment of allowances under the Vocational Educational Act was governed by the Committees themselves; the Minister merely played a consensual role. The Minister did not have the power to revoke the payments, this action was therefore unlawful.

EDUCATION & TRAINING BOARDS ACT 2013

CONSTITUTION ART 5

DELLWAY INVESTMENTS LTD v NATIONAL ASSET MANAGEMENT AGENCY 2011 4 IR 1 2011/12/2768 2011 IESC 14

CURRAN v MIN FOR EDUCATION 2009 4 IR 300 2009/11/2409 2009 IEHC 378

J & J HAIRE & CO v MIN FOR HEALTH 2010 2 IR 615 2009/28/6995 2009 IEHC 562

VOCATIONAL EDUCATION (AMDT) ACT 2001 S36

CONSTITUTION ART 28.2

CONSTITUTION ART 15.2.1

DUGGAN v AN TAOISEACH 1989 1 ILRM 720

FARM TAX ACT 1985

CONSTITUTION ART 20

WIRELESS DEALERS ASSOCIATION v MIN FOR INDUSTRY & ORS UNREP SUPREME 14.3.1956 2007/60/12985

HOLLAND v ATHLONE INSTITUTE OF TECHNOLOGY 2012 23 ELR 1 2011/25/6704 2011 IEHC 414

INDUSTRIAL RELATIONS ACT 1990 S26(1)

VOCATIONAL EDUCATION (AMDT) ACT 2001 S15(6)

1 1. We live in hard and stirring times. Since September, 2008 the State has been grappling with an economic, fiscal and banking crisis of almost unparalleled severity. It is perhaps idle to endeavour to identify the root causes of this crisis, still less to hazard any prediction as to when these acute challenges to the public finances will dissipate. One thing has, however, become painfully clear, namely, that the State has felt itself obliged during this period to examine the continued utility and desirability of almost all items of public expenditure with a view to ensuring that the public finances quickly return to equilibrium.

2 2. There are, naturally, many views on these wider questions. Some question the desirability of this general exercise and insist that it is economically counter- productive, while others express opposition to the fairness and wisdom of particular public expenditure reductions, stressing that any revenue deficits should be addressed by means of higher taxation. Yet others insist that such retrenchment, however painful, is necessary to restore the economy to health and that the economy has reached the limits of its taxation capacity. No one living in this State or, for that matter, elsewhere in the European Union, can be but aware of these intense debates which have informed and moulded public opinion on these matters both here and elsewhere.

3 3. These general debates form the backdrop to the present proceedings which, as we shall presently see, concern the re-organisation by the Oireachtas of the vocational educational sector, culminating in the enactment of the Education and Training Boards Act 2013, on 8 ^th May, 2013 ("the 2013 Act"). Yet it is perhaps necessary to stress at the outset that the general wisdom of the policy of fiscal consolidation which the executive and legislative branches have pursued over the last five years or so is not a matter which the courts can question or review. For even if the judicial branch possessed - which it does not - the skill and understanding of a Keynes or a von Hayek or a Friedman or a Krugman in matters of general macroeconomic theory, this would not alter matters in the slightest. This is because questions of the wisdom, efficacy and general fairness of these policies are committed exclusively to the democratic process. Article 5 of the Constitution proclaims the State to be a democracy and this means that questions of general economic policy of this nature are committed to the two branches of government which are ultimately answerable to the People in the electoral process.

4 4. It is perhaps necessary to re-state these propositions against the background of the present case, because at times arguments were addressed to this Court in the course of argument which seemed more appositely to belong either to the realm of political debate on the one hand or that of the industrial relations process on the other. At the same time, the responsibility and duty of the judicial branch in such matters is clear, namely, to ensure that the Constitution is upheld and the law is applied. Not least when confronted with a plain illegality, the court must not allow itself to be deflected from discharging its judicial duty for reasons of convenience or the acute nature of the fiscal crisis or the siren call of emergency: cf. here the comments of Hardiman J. in Dellway Investments Ltd. v. National Asset Management Agency [2011] IESC 14, [2011] 4 I.R. 1. In cases of such kind, the court must neutrally apply the law, without fear or favour and still less must it dilute or even compromise legal principle by a jurisprudence which itself was distorted by a judicial desire to bring about a result deemed to be convenient or expedient in the public interest.

5 5. None of this is to suggest that the courts should remain oblivious to economic reality and proceed as if the economic climate were benign. Quite the contrary: the courts can quite properly take account of these unpleasant contemporary realities in assessing, for example, the extent to which an otherwise legitimate expectation has been defeated by an abrupt worsening in the public finances (cf. the judgment of Dunne J. in Curran v. Minister for Education [2009] 4 I.R. 300) or the proportionality of a measure reducing the remuneration of professionals supplying services to the public on behalf of the Government (cf. the judgment of McMahon J. in J.J. Haire & Co. Ltd. v. Minister for Health and Children [2009] IEHC 562, [2010] 2 I.R. 615). But what the courts cannot do is to turn a blind eye to ultra vires executive and administrative action.

6 6. As I have just indicated, the re-organisation of the vocational educational sector forms the backdrop to the present proceedings. Both of the applicants have been appointed as Chief Executive Officers of Vocational Educational Committees. Mr. MacDonncha was appointed as CEO of Co. Galway VEC on 16 ^th January 2006 and Dr. Sweeney was appointed CEO of Co. Mayo VEC on 1 ^st September 2006. They are both statutory officers whose offices and entitlements are governed by the terms of the Vocational Educational Acts 1931-2001.

7 7. There are at present some 33 VECs and reform and restructuring has been in contemplation in official circles for quite some time. The present litigation commenced by the grant of leave of this Court (Ryan J.) on 18 ^th September, 2012 and during this period the Educational and Training Boards Bill 2012, was proceedings through the Oireachtas. Indeed, the Bill was signed by the President and became law on 8 ^th May, 2013, the last day of the hearing in these proceedings.

8 8. The actual coming into force of the new law, Educational and Training Board Act 2013 ("the 2013 Act"), is made dependent on the making of ministerial orders appointing commencement dates for some or all of the provisions of the Act. When commenced, the 2013 Act will effect a repeal of the Vocational Education Acts 1930-2001 (with the exception of s. 36 of the Vocational Education Act 2001) and the various statutory instruments made thereunder. Critically, the commencement of the 2013 Act will lead to the abolition of the existing 33 VECs and their replacement by 16 new Educational and Training Boards ("ETB").

9 9. With this in mind, the Minister for Education and Skills promulgated a Circular No. 24/2012 on 19 ^th June, 2012 ("the 2012 Circular") which set out the categorisation of the new ETBs "for the purposes of the pay scales applicable to CEOs of these Boards." The new ETB for the City of Galway, Co. Galway and Co. Roscommon fell into Category II, as did the new ETB for Co. Mayo, Co. Sligo and Co. Leitrim. Paragraph 3 of the Circular stated that this categorisation "will apply from the commencement date of the legislation bringing into force the new Education and Training Boards".

The Industrial Relations Aspect of the Dispute

10 10. The Croke Park Agreement...