MJELR Anor -v- Director of the Equality Tribunal.
High Court
Judgment was given by Mr Justice Peter Charleton on February 17th, 2009.
Judgment
The Equality Tribunal was not entitled to commence a hearing based on the assumption that it was entitled to overrule a statutory instrument made by the Minister for Justice.
Background
The case arose from three people taking a case to the Equality Tribunal alleging discrimination against them on age grounds by the commissioner of An Garda Síochána.
They were all aged between 36 and 50 and had applied to join the force, but had been informed that they were not eligible because they were over the age limit of 35.
The commissioner had pointed out that entry to training in An Garda Síochána was governed by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations of 2001 and 2004.
These regulations state that the commissioner shall not admit a person as a trainee unless the person was more than 18 and less than 35 on the first day of the month in which an advertisement was published.
They brought their complaint to the Equality Tribunal and the Minister for Justice brought judicial review proceedings challenging the authority of the tribunal to hear the case.
Mr Justice Charleton outlined the history of the employment equality legislation, pointing out that the 1998 Act had originated in various council directives concerning equal pay for men and women.
It was amended by the Equal Status Act 2000 and the Equality Act 2004, which stated that one of its purposes was to implement the principles in further Council Directives relating to equal treatment.
Section 82 of the Act of 1998, as amended by section 36 of the Act of 2004, defines the limits of the jurisdiction available to the Equality Tribunal on a complaint, including the making of various orders.
By a letter dated April 5th, 2005, the Equality Authority had made it clear that its view was that any exemption of an Garda Síochána from the general prohibition on age discrimination was removed by the Equality Act 2004 and that the regulations imposing such an age limit were not consistent with the Acts or with the provisions of the framework employment directive.
Decision
Mr Justice Charleton pointed out that the 2004 Act was specifically passed in order to give effect to Council Directive 2000/78/EC.
“It is beyond the scope of any decision that I am required to make in this judicial review as to whether that national legislation correctly implemented the directive.”
While both the court and any administrative body was obliged to construe national legislation in the light of the relevant European law, this did not extend to rewriting the legislation, he said.
Mr Justice Charleton said there was no principle of European law which allowed an administrative body or a court of limited jurisdiction to exceed its own authority, where it was of the view that European legislation has not been properly implemented at national level, by remedying this by reordering in ideal form the national legislation.
“In the event that a view emerges that national legislation has not properly implemented European legislation, that is no more than an opinion.
“The respondent does not have the authority to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation,” Mr Justice Charleton said.
“The High Court has that power as this has been expressly reserved to it by Article 34 of the Constitution.”
He also said that, as a matter of fact, the regulation in question was passed on November 23rd, 2004, after the Equality Act came into force on July 18th, 2004. It was claimed in evidence by the Minister that he expressly had regard to the Act in making the regulation.
As the Minister claimed that the upper age limit was set in accordance with the Act and the directive, the tribunal was obliged to accept that as a matter of law.
The tribunal could not make a ruling in breach of a statutory instrument.
The correct response to the complaint by the notice parties (the complainants) should have been to point out to them that by legislation, the tribunal could not seek to remedy the complaints.
They would then have been put on notice that their only remedy was to seek a declaration from the High Court that national law had purported to overrule a European law obligation.
The full judgment is on www.courts.ie
Lawyers: Brian Murray SC and Rachel Casey BL, instructed by the Chief State Solicitor, for the Minister; Hugh Mohan SC for the Equality Tribunal; Mark Connaughton SC and Conor Power BL, for the notice parties, instructed by the Equality Authority.