The club’s primary defence to the Authority’s claim is that it falls within this exclusion. It is agreed, sixthly, that the nature of s.9(1)(a) is that it is a proviso, cutting down or limiting the scope of s.8.
The nub of the case.
It will be seen immediately that s.9 positively permits a registered club to maintain its registered status (and thus the right to make alcohol available) if its principal purpose is to cater only for the “needs” of one of the twelve groups mentioned in s.9. This list of groups is a broad one and permits, for example, exclusive clubs (that is, clubs which exclude certain people from membership) for persons of a particular gender (i.e. ladies or gentlemen), sexual orientation i.e. gay or “straight”, religious belief, such as Catholic, Protestant or Jewish etc. or, on the other hand, lack of religious belief, marital status (i.e. a club for single or married persons, or husbands or wives), family status, nationality or ethnic or national origins, and members of the travelling community (though not of the settled community).
With the exception of this last category, the Section is carefully non-discriminatory, treating mens’ clubs and ladies’ clubs, gay clubs and “straight” clubs, Catholic clubs and Jewish clubs etc., all alike.
It appears from the note on the Equal Status Act, 2000 in the excellent “Statutes Annotated” series that s.9 in its present form became part of the present Act (which itself is a revised version of a measure of the same title of 1997 which had been found unconstitutional on a reference under Article 26 of the Constitution), because of fears that, without such a provision, the interference with the right of free association constituted by s.8 might lead to that Section’s being declared unconstitutional. This view is more fully discussed below, as are other aspects of the annotation.
The very first exempted category, “persons of a particular gender” would appear to take any ladies club or gentlemens club out of the category of “discriminating club”. This, clearly, was a major obstacle in the way of the Equality Authority when it sought to have Portmarnock Golf Club condemned as a discriminating club. But the Authority has advanced an argument of considerable intricacy and ingenuity, which is at the heart of the first above entitled action.
The Authority emphasises the introductory words of s.9(1)(a) of the Act of 2000 (“if its principal purpose is to cater only for the needs of…”). On the basis of this form of words, the Authority agrees that s.9(1)(a)(i) would certainly permit the existence of a club exclusively for ladies or for gentlemen. But, the Authority says, it would not permit the existence of, for example, a ladies book club or a gentleman’s golf club. This is because, says the Authority, books, or golf, are not a “need” of persons of either gender considered only as persons of that gender and omitting all other individual characteristics. The authority says it is necessary to do this because the structure of the Section means that the “needs” must be a need of the exempted category (gender etc., homosexuality, traveller status) “as such”. This appears to imply that the “need” must be a need of all men, women, travellers etc. Many ladies may take an interest in the reading and criticism of books, and many gentlemen in golf or vice versa. But neither activity is so marked a characteristic of either gender as to make it a “need” of persons of that gender as such. “Needs”, the Authority further argues, relates solely to absolute necessities, like air, food and water and not to social, cultural or recreational preferences, however central or important to an individual they may be. This, they say, is the literal meaning of the word, and golf is not within that meaning. Therefore, said the Authority, the club is not within s.9. Therefore, it is a discriminating Club under s.8. In consequence of that, in the light of the Act, the members must lose the right to consume alcohol on the Club premises. That is the Authority’s case. The Attorney-General dissents as, of course, does the Club. That is what the case, as argued on this appeal, is about.
Before turning to the substance of these matters, it is necessary to explain certain preliminary and procedural aspects of the case, which has taken on a somewhat complicated form in terms of the pleadings and the decision of the High Court.
Preliminary and procedural matters.
The first above entitled action concerns an attempt by the plaintiff, which is a statutory body, to impose the unique sort of sanction described: - a penalty for doing something quite lawful - above on the defendants (who are a registered Club and those responsible for its management), because the authority feels obliged by the terms of the Act to disapprove of the nature and constitution of the Club and considers that it is a “discriminating Club” within the meaning of a statute considered at length below. The High Court found against the authority and this is their appeal. In the course of this judgment it will be necessary to consider the nature and the history of the Equal Status Act, 2000, and of certain other transactions and measures as well. It will become clear that the actions raise very fundamental questions to do with the constitutional rights of citizens to associate with one another, and the powers of the State to regulate, penalise, or discourage such association and cognate matters, including the right to associate for purposes disapproved of by the political establishment, or by the “great and the good” in Government, the media, the quangos and elsewhere.
The second above entitled action, in which the Club’s trustees are the plaintiffs and the Equality Authority, the State and the Attorney General are defendants, is the Club’s challenge to the constitutionality of certain portions of the Equal Status Act, 2000. However, this issue of the statute’s constitutionality will arise only in the event of the Equality Authority’s construction of s.9 of the Act being upheld by the Court. As we shall see, the High Court has rejected that construction but the learned trial judge nevertheless went on to make certain “comments” on the constitutional issues. These matters are set out in more detail below.
Interpretation consistent with the Constitution.
In the ordinary course of events, many of the constitutional considerations mentioned above would arise only in the constitutional action. However, in resisting the Authority’s appeal from the High Court judgment, the Club has relied on the proposition that, having regard to the constitutional guarantee of freedom of association, set out below:
“… the right of freedom of association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it.” (per McCarthy J. in NUJ v. Sisk [1992] 2 IR 171).
This submission was construed by the Attorney General (paragraph 4 of his submissions) as “the invocation of the double construction rule by the Club” and, says the Attorney, it requires him to deal to some extent with the interpretation of certain Sections of the Act. This is a matter of some importance because, as will be seen, the Attorney General’s interpretation of s.9 of the 2000 Act in light of the Constitution is not the same as the Equality Authority’s. He does not share the view that a Ladies Golf Club or a Mens’ Book Club is ipso facto outside the scope of s.9.
Accordingly, I have thought it appropriate to set out later in this judgment, before construing s.9, one or two aspects only of the constitutional context in which the facts of the present cases and the details of the statutes referred to must be considered. These provisions are the inescapable context of every part of this case. But in the first action, their importance is limited to their effect on questions of construction.
(C) The statutory framework: context and detail.
(i) A striking omission.
The origin of this case is the Equality Authority’s objection to the fact that Portmarnock, by its rules which are more fully quoted below, restricts membership to “gentlemen” who can comply with the rules of amateur status. The Club is, the court was told, one of only two Golf clubs in Ireland who limit their membership in this way but it is a matter of such concern to the Authority that, rather than leaving the members alone to work out their own salvation, or to using their statutory power to evolve a Code of Practice, they instituted proceedings against the Club and others in the District Court. This is all the more surprising in view of the fact that the Equality Authority itself appears to be in obvious and unexplained breach of its own obligations under the statutory regime.
This must be explained in some little detail before considering the rest of the statute.
Section 56 of the Employment Equality Act, 1998 allows the Minister to require the Authority to prepare a draft code of practice in certain circumstances. This duty on the part of the Authority is couched in mandatory terms (“the Authority may, or if requested to do so by the Minister shall prepare for submission to the Minister draft codes of practice…”).
The Equal Status Act extended this provision to the context of that Act. Shortly after the passage of the Equal Status Act the Minister wrote to the Authority (23rd June, 2000) under the heading “IMPLEMENTATION OF THE EQUAL STATUS ACT, 2000: GENDER EQUALITY AND GOLF CLUBS”. The letter stated that the area was a complex one and that “the position of women in golf clubs generate a particular controversy…” and said that many golf clubs “operate dual structures with separate streams for men and women”. The Minister requested the Authority to draw up a code of practice on this issue.
As mentioned above, the Authority would appear to have been statutorily obliged to comply with the Minister’s request. This was not contradicted by the Authority. It appears simply to have ignored this legal obligation. No such code was produced prior to the commencement of the proceedings or, as far as the court is aware, since.
This point was trenchantly made on behalf of the Club and is more than just a debating point. It is, in my opinion, quite extraordinary for a public body (especially in times of economic difficulty) to put the taxpayers to the expense of litigation, and to expose others to it, when it has manifestly ignored its own duty to produce a Code which might have avoided litigation. Furthermore, the Authority’s breach of statutory duty has the significant consequence that the Minister has not had the opportunity of approving or disapproving a code of practice in relation to gender in golf clubs. Nor is there any reason to assume that the Minister would adopt the Authority’s interpretation as put forward in this case: the Attorney General did not adopt the interpretation of s.9 of the Act by the Authority either in the High Court or on appeal.
Single Gender associations and clubs.
(ii) It is perhaps not surprising in view of the legal and constitutional citations set out elsewhere in this judgment that the Irish statutes do not in fact attempt to outlaw all discrimination in the membership criteria of private clubs or associations. The reason for this may be that ordinary social life, here and abroad, provides myriad examples of voluntary associations which cater exclusively for persons who originated in a particular place, whether in Ireland or abroad, or who are of a particular gender (ladies clubs; certain book clubs; sporting associations or groups whose members who are of a particular sexual orientation). There are groups which cater to the needs of persons who meet two or more of these criteria such as the gay mens’ Rugby Club, “Emerald Warriors”. Rugby, of course, is not a “need” of gay men as the Authority understands that term. It is not easy to think of any game or sport which is a “need” of gays, men or women “as such” as the Authority would have it.
To those un-attracted to golf, book clubs, or other forms of single gender association the prevalence of such bodies may seem strange. But that is not the test for the resolution of the present case. Strange or not, there are an enormous number of exclusively single gender bodies and there is some reason to believe that their number may be increasing. For example, in the Irish Times for Friday 4th March, 2005, Finola Meredith wrote an article entitled “Wanted: Single-Sex zones for our Sanity”. She canvassed the question “… as equality gradually gains force and impetus, will it become even more vital to preserve places where the sexes can stay separate, reaffirming their essential differences?”
She quotes Joanna McMinn, of the National Womens’ Council of Ireland who is said to think that “women only spaces offer an essential forum”.
She also quotes Mona Gardener the Dublin Federation President of the Irish Countrywomens’ Association, a body which (the court was told on the hearing of this appeal) is associated with the registered club entitled to serve alcohol at the Association’s premises is in Co. Louth, as saying “It’s still important for women to get together to have space and time for themselves.”
The largest and longest established womens’ group, the Irish Countrywomens’ Association (1910) has for its objects “to bring women together in fellowship and through co-operative effort to develop and improve the standard of rural and urban life in Ireland…”. Is this, one wonders, an activity of “women qua women” in the Equality Authority’s eyes? Would a similar organisation for men pass muster?
She again goes on to describe the activities of Voca Loca, an “all-women cappella singing group based in Belfast”.
She concludes by pointing out that single gender groups have attracted certain critcism:
“Yet it is evident that many women and men experience times in their lives when the company of their own sex provides a measure of comfort, solidarity or stimulation that can’t be found elsewhere”.
In fact, it would appear that the number of all-women groups is hugely greater than the number of all-male groups. There are, for example, said to be only two all-men (or all “gentlemen”) golf clubs in Ireland. But almost any directory provides pages of womens’ associations. There are networking associations for women in business, an association for women graduates and associations for women lawyers and even women judges. There can be little doubt that these bodies are, if they wish, legally entitled function on a single-gender basis. On another level, if one Googles “all-women book clubs,” one gets 1,400,000 (one million four hundred thousand) “results”. This, too, is perfectly legal.
There is, of course, an extremist point of view which considers that whereas all-women groups should be permissible, all-male groups should be banned. An example of this stern and discriminatory point of view in a legal context is Rhode, Association and Assimilation (1986/1987) 81 NW ULR (North Western University Law Review) 106. Whatever the merits or demerits of this view (and it is certainly, manifestly and unashamedly an authoritarian one), the fact is that it has no basis or purchase in Irish law because, as will be seen in the citations from the statute, the Irish emphasis is on gender equality and the Act of 2000 which will mostly be under discussion treats of discrimination, and is not concerned to mandate reverse discrimination, whether for constitutional or other reasons.
(iii) Whatever the reason for it, the fact is that there is no prohibition on the establishment on clubs or associations whose membership is limited to persons of a particular gender. Instead, the first above-entitled action raises in particular a question of the interpretation of s.9(1)(a) of the Equal Status Act, 2000. This is a complex provision, appearing in a complex portion of the statute, the Equal Status Act, 2000.
Section 9 is part of a three section portion of the Act, Sections 8 - 10 inclusive, which is addressed to clubs and in particular to clubs registered under the Registration of Clubs Act, 1904 - 1999. For practical purposes, the purpose of registration under those Acts is to permit the service of alcoholic drink on club premises. Section 8 of the Act permits a declaration by the District Court that a club is “a discriminating club” if, relevantly:
By reasons of the definition Section of the Act (s.2), the verb “discriminate” means to discriminate within the meaning of s.3(1) or s.4(1) of the Act. Readers are referred to those provisions, and it would be otiose to set them out here. It will however be observed that s.3(2) sets out a number of specific grounds of discrimination including “the gender ground”, “the marital status ground”, the “family status ground”, the “religion ground”, the “age ground”, the “disability ground”, the “ground of race”, and the “traveller community ground”.
Returning to s.8, a person may apply to the District Court for that court to make a determination as to whether a club is or is not a discriminating club. The court may make an order determining whether or not the club is a discriminating club. The consequences of this order are set out in subsection (7)ff of the Section: if it is the first such order the court is required to order suspension of the club’s certificate of registration for a period not exceeding thirty days. But if it is a subsequent order the Club will not be entitled to renew its certificate of registration at all. It will be subjected to a punitive form of Prohibition.
The strikingly limited nature of this provision will be apparent. Firstly, it has no application whatever to clubs that are not registered clubs, for the purpose effectively of making alcoholic drink available. The draftsman appears to be saying, “We can’t stop you running a single gender Club, but we will try to arrange that you won’t enjoy it”, a strikingly puritanical attitude. Secondly, the Act nowhere prohibits the continued activity of a discriminating club: it may discriminate as much as it likes if it is prepared to refrain from making alcohol available. These aspects, however, as the Authority says, are the responsibility of the legislature. The next matter, which is the central topic for the court’s attention, is the terms of s.9 of the Act of 2000. Section 9 creates an exception to the broad power contained in s.8. Section 9(1) provides as follows:
The effect of this Section was at the heart of the argument on the hearing of this appeal. A number of things are obvious about the Section, taken in its statutory context. Firstly, it permits a club to escape a penalty, and stigmatisation as a discriminating club, if its “principal” purpose is to cater “only” for the “needs” of varied categories of the community who are the subject of the list of “discriminating grounds” set out above and previously listed in s.3.
Thus, to take some grounds at random, the Act stigmatises discrimination between two persons on the ground that one is male and one is female. This is, by statute, to be referred to as “the gender ground” but, by s.9, a club will not be a discriminating club if its “principal” purpose is to cater “only” for the needs of persons of a particular gender.
Similarly, one may not discriminate between persons on the grounds that they are of different sexual orientation. This, by statute, is to be referred to as “the sexual orientation ground”. See s.3(2). But, by s.9, a club will not be a discriminating club simply because its “principal” purpose is to cater “only” for the “needs” between persons of a particular sexual orientation.
Strikingly, one may not discriminate between persons on the basis that they are “of a different race colour nationality or ethnic or national origin.” This, by statute is to be known as the “ground of race”. See s.3(2). But a club will not be a discriminating club, as a result of s.9, if its “principal” purpose is to cater “only” for the needs of persons of a particular nationality or ethnic or national origin.
Just as strikingly, s.3(2) prohibits discrimination against persons on the grounds of their religious beliefs (“the religion ground”) but a club will not be discriminating if it is to cater only for the needs of “persons who have no religious beliefs”, or who have a particular religious belief. Such a Club may discriminate by excluding all others.
On the hearing of this appeal counsel for the respondents, the Club, Mr. Donal O’Donnell S.C., gently mocked these provisions and pointed to certain aspects of them alleged to be ridiculous. Counsel for the Appellant Authority, Mr. Frank Callanan S.C., expressed his resentment at this and pointed out that the provisions of the Act were not the work of the authority but of the legislature and that the authority had to implement the Act as it stood. This is perfectly true. But the interaction between Sections 3, 8 and 9 is a subtle, complex and sometime surprising one. It appears to me to come down to this: one cannot discriminate on the ground, for example, of religious belief or the lack of it between two applicants for members of a club. But one can have a club whose principal purpose is to cater only for the needs of people of a particular religion or, on the other hand, of people who have no religious belief at all. In that latter event, one not merely can, but (as the Authority sees it) one must, exclude any applicants who have a religious belief because, to benefit from the exemption contained in s.9 one must as a principal purpose cater “only” for the needs of “persons who have no religious beliefs”. Similarly, one may not discriminate between applicants for membership of an association on the ground that one is, and one is not, a member of the travelling community. But one may have a club whose principal purpose is to cater “only” for members of the travelling community, which clearly requires that one should exclude persons who are not such members because if even a small number of the members are not travellers the Equality Authority may take the point that the club does not cater “only” for the needs of travellers.
The tensions between the sections mentioned seem to me to be at their greatest in relation to discrimination of ground of “nationality or ethnic or national origin”. The correlative of this, in s.3(2) is “the ground of race” set out in s.3(2)(h). By virtue of this, one cannot discriminate against a person by comparison with another person on the basis that “they are of different race, colour, nationality or ethnic or national origin”. But the exempting Section permits one to discriminate by having a club whose principal purpose is to cater only for the needs of persons of a particular nationality or ethnic or national origin. There is no exemption on the ground of race. The precise distinction in practice between “race” and “ethnic origin” is not clear to me but fortunately does not arise in the present case.
In this case, no individual has come to Court complaining about Portmarnock Golf Club or its constitution, which confines membership to “gentlemen”. But the authority made an application to the District Court under s.8, for a declaration that the club is a discriminating club, which is how the matter comes to be litigated. The authority were successful in getting a declaration that the club was a discriminating club in the District Court but the club successfully appealed by way of case stated to the High Court on this issue: the High Court held that the club was not a discriminating club by reason of the terms of s.9. From this latter determination the authority has taken an appeal to this court. Separately, Mr. Cuddy and Mr. Keane who are members of the club have commenced a constitutional action. The details of these separate actions will be considered below. The first, and perhaps the only, issue before the court is whether or not Portmarnock Golf Club is entitled to the benefit of s.9 of the Act of 2000.
(D) Statutory history.
The present Act is a revised version of a Bill of the same title of 1997 which was referred to the Supreme Court by the President of Ireland pursuant to Article 26 of the Constitution. Both the Employment Equality Bill 1996 and the Equal Status Bill 1997 were found to be unconstitutional. See Re The Employment Equality Bill 1996 [1997] 2 IR 321 and Re The Equal Status Bill 1997 [1997] 2 IR 387. In part the finding of unconstitutionality related to a provision for vicarious liability which would have exposed an employer to a prison sentence of several years duration in respect of discriminatory conduct by an employee of which he neither knew nor approved. According to the learned authors of the “Statutes Annotated” note on the present Act, s.9 was “intended to protect rights of freedom of association, the government having been advised by the Attorney General that the previous provisions does not sufficiently protect such rights”. The example given was that, in the absence of the present s.9(1)(a), the Freemasons, not being a religious body, could not avail of the previous protective measure. But the Freemasons, in the view of the annotators, “is a body which was set up to encourage interpersonal bonds of a fraternal nature and is thus par excellence a body of individuals who are exercising their constitutional rights of freedom of association”. Thus, it was said “it would be extremely difficult to justify in law a refusal to renew the Freemasons certificate of registration which is based, not on any drink related ground, but on a refusal to admit women”. The passage continues:
“The same logic extends to many other groups - lesbian and gay organisations, the ICA (Irish Country Womens’ Association), Traveller groups - who might well wish to exclude members of a particular category. There is no rational basis on which to suggest that such groups do not enjoy the same rights as others to drink together in the privacy of their own club”.
The note continues:
“This exemption therefore safeguards the right of freedom of association, by providing an exception from s.8 to clubs which have as their principal purpose catering for one particular class of persons”.
Structure of the Equal Status Act, 2000.
Firstly, the long title of the Act is as follows:
“An Act to provide equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for an investigating and remedying certain discriminations and other unlawful activities to provide for the administration by the Equality Authority of various matters pertaining to this Act, to amend the Employment Equality Act, 1998 in relation thereto and in certain other respects and to provide to related matters”. (Emphasis added)
The bulk of the Act deals with matters other than clubs. Though the structure of the Act is complex, and little has been done to simplify it, certain structural aspects are identifiable. Section 4 deals with discrimination on the ground of disability. Section 5, which is the first Section of general application, prohibits discrimination in the provision of goods or services to the public generally. But this prohibition is subject to a number of exceptions and qualifications. Section 5(2)(f) permits differences in the treatment of persons on the basis of gender, age, or disability, or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or a sporting event, to the extent that the differences are reasonably necessary to the nature of the facility or event and are relevant to the purpose of the facility or event. It may be important to note the basis on which such “differences” are not permissible: these are the balance of the “grounds of discrimination” other than those mentioned above viz. marital status, family status, sexual orientation, race or colour or membership of the travelling community. These aspects are mentioned here because of their possible relevance to the respondent club in the present proceedings, which is a mens or “gentlemens” golf club.
The Club.
According to the Authority’s submissions, Portmarnock Golf Club was established in 1884. Under the rules (Rule 3) the members of the club:
“… shall be gentlemen properly elected and who shall conform with the rules of amateur status, for the time being prescribed by the Royal and Ancient Golf Club of St. Andrew’s”.
They are, according to the same source, 626 members and 625 associate members of Portmarnock Golf Club. It is thus clearly a private club and not a pubic or commercial body.
Although women may not, according to the rules of the club, be members, they may play golf at the Club with or without a member on identical terms to those applicable to male non-members. There is thus no discrimination in the Club’s dealings with the public. This action concerns alleged discrimination in the Club’s private, internal arrangements.
From the rule quoted it is clear that members must be men, who are in a position to comply with the rules of the “Royal and Ancient” on amateur status, as widely recognised by golf clubs throughout the world. It is clear that the principal activity in the club is the playing of golf, though the playing of golf is not positively required of a member who might for example wish to be a social member of the club or might maintain his membership after he had for age or other reasons ceased to play golf.
Central Issue on the Statute.
The authority submitted that the key issue in the case is whether the club can avail of the exception provided in s.9 and I agree that this is so, in relation to the first action herein, that initiated by the Equality Authority. The authority contends that the club is not within s.9 because its principal purpose is not to cater “only” for the “needs” of persons of a particular gender. On the contrary, says the authority, the purpose of the club is to play golf or (more correctly) to provide facilities for the playing of golf, which cannot be described as catering for the needs of one gender only, or as a “need” at all.
The proceedings.
On the 10th June, 2003, the Equality Authority issued a Civil Summons in the District Court. The respondents to this were the club and its various officials and officers. This came before the District Court on the 28th November, 2003 and subsequently on the 19th January, 2004. In it the plaintiff claimed a determination that the Portmarnock Golf Club was a discriminating club for the purpose of s.8 of the Act and an order suspending the registration of the club for a period not exceeding thirty days. It also sought an order for costs against the Club.
On the 20th February, 2004, District Judge Collins made the determination that the club was a discriminating club. Reasons for this decision were given on the 20th February, 2004, concluding:
“The principal purpose of the club is to play golf. The ordinary words of the terms of the statute do not ascribe to mens golf as a special need (sic). A literal approach is appropriate in this case and therefore cannons of construction are not needed. I propose to rely on the presumption of constitutionality”.
On the 11th June, 2003, Messrs. Cuddy and Keane, the trustees of the club issued proceedings against the Equality Authority, Ireland and the Attorney General, claiming a declaration that the club was not a “discriminating club” and in the alternative, a declaration that if the club is correctly considered to be a discriminating club, then the provisions of Sections 8, 9 and 10 of the Equal Status Act are invalid, as being inconsistent with the Constitution. These are the second proceedings in the title to the present case, and were clearly by way of reaction to the proceedings stated by the Authority.
Subsequently, on the 10th September, 2004, the club appealed to the High Court from the decision of District Judge Collins by way of Case Stated, “being dissatisfied with her decision in point of law”. In June, 2005 O’Higgins J. delivered a judgment on the case stated in which he upheld the club’s submissions as to the construction of s.9 of the Act of 2000. However, notwithstanding this decision, and the fact that the club’s claim to unconstitutionality was specifically conditional upon the authority’s construction of the Act of being upheld, the learned trial judge nonetheless proceeded to express his view on the constitutional issues as well. The reason why he did this are set out at p.22 of the judgment. He acknowledged that it was “unnecessary” to decide the case on constitutional grounds and there is ample authority that in those circumstances “that the court should not do so”. But he went on to say that “in deference to the arguments made in this court and for the purposes of expedition in the event of a different conclusion being made elsewhere, I consider it appropriate to make some comments on the constitutional arguments”. These were comments addressed to the constitutional repercussions of a finding that the interpretation contended for by the Club “were not accepted by the court”.
The “comments” on the constitutional issues in fact constitute the bulk of the judgment, twenty-four of its forty-six pages being devoted to the constitutional issue.
The High Court Order.
The relevant portion of the High Court Order is as follows:
“IT WAS CONSIDERED AND ADJUDGED that the said judge of the District Court was wrong in point of law in her determination and order set out above.
THE COURT DECLARED that by reason of the provisions of s.9 of the Equal Status Act 2000 the Portmarnock Golf Club shall not be considered a discriminating club for the purposes of s.8 of the Equal Status Act, 2000 and ordered accordingly”.
The court went on to order that the plaintiff in the case stated (the authority) pay to the defendants their costs when taxed and ascertained and that the plaintiffs in the second-named action (the club and its officials) pay to the State its costs of the constitutional Action.
It thus appears that, although the learned trial judge discussed at length the constitutional arguments, no order was made as to the constitutionality of the statutory provisions, though an Order for the costs of this issue was made.
Following this decision, the Equality Authority by an undated Notice of Appeal appealed to this court “against that part only of the judgment and order of the Honourable Mr. Justice O’Higgins of the High Court which judgment was delivered on the 10th June, 2005 and which order was made on the 15th June, 2005 and perfected on the 26th July, 2005. Mr. Justice O’Higgins gave judgment on the appeal by way of case stated from Mary Collins, Judge of the District Court pursuant to s.2 of the Summary Jurisdiction Act, 1857 as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961 [being the section of the judgment entitled ‘interpretation’] at pp6 to 22 of the judgment”.
Although this notice is not strictly grammatical, it is clear that the appeal of the authority is limited to the learned trial judge’s determination on the interpretation of s.9. In light of this appeal by the authority, the club and its officials by Notice of Appeal dated the 19th August, 2005 appealed “from that part of the judgment and order of the High Court (Mr. Justice O’Higgins) delivered the 10th June, 2005 in which, not withstanding its judgment and order on the issues of interpretation of Sections 8, 9 and 10 of the Equal Status Act, 2000, the court proceeded to consider and deliver judgment on the constitutional and other arguments raised by the plaintiffs in relation to the validity of the 2000 Act and rejected the plaintiffs challenge to the validity of those provisions having regard to the provisions of the Constitution”.
In the alternative, the club contended that the judgment should be varied “having regard to the filing by the Equality Authority of the Notice of Appeal from the interpretation section of the judgment. The club contends that the learned trial judge ought not to have proceeded to consider the constitutional issues.
I have set out the foregoing history of the proceedings in order to explain the somewhat complicated position which now arises in relation to the two portions of the High Court judgment. It is appropriate to resolve the appeal by way of case stated before deciding what is to be done in light of the two notices of appeal. Neither party appeared to dissent from this approach.
(E) The High Court decision on the interpretation of the statute.
The learned High Court judge observed, at page 7 of the judgment, that:
“It is not in dispute that Portmarnock Golf Club comes within the s.8(2)(ii) and is subject to the provisions of s.8 of the Act as being a ‘discriminating club’ unless it falls within the exemptions provided for in s.9”.
He then proceeded to set out and summarise the effect of the provisions of s.8 of the Act. He then, at p.8 of the judgment, quoted a media statement issued to the Press by the Equality Authority drawing attention to the launch by it of the District Court proceedings as follows:
“There are separate and distinct provisions of the Act in relation to clubs which hold [a] certificate of registration under the Registration of Clubs Act. The Equal Status Act, 2000, does not render unlawful discrimination in registered clubs. Registered clubs are allowed to discriminate and male only clubs are allowed. The Equal Status Act, 2000, does however impose a significant sanction in relation to such clubs”.
It may be observed that it is a very partial statement of the law to say that “male only clubs are allowed”. That statement is true but it is also true, but not said, that female only clubs are allowed as are gay or lesbian only clubs, traveller only clubs, clubs limited to persons of a particular ethnic or national origin, and clubs limited to persons without religious beliefs as well as other exclusive clubs. It is also significant that the Authority, in the statement it later issued to the media after the District Court case, proclaiming its victory, described the consequence of a finding that a club is a discriminating club as “a significant sanction”. On the hearing of this appeal, the authority conceded again that the determination that a club was a discriminating club, and the consequences of that decision for its certificate of registration, were in the nature of a penalty.
What Clubs are within s.9?
The learned trial judge then set out the relevant terms of s.9(1)(a) of the 2000 Act and continued as follows:
“In effect, the Section exempts clubs from the provisions of s.8 of the Act in certain circumstances. The major issues in these proceedings involve the interpretation of s.9. In particular both parties argued as to the correct interpretation and meaning of the [phrase] ‘principal purpose’ in that Section. The plaintiffs on behalf of Portmarnock Golf Club argue that the principal purpose of the club is to cater only for the needs of persons of a particular gender that is male golfers. The club refuses membership to any other persons. They contend that on a proper construction of s.9 (1)(a) of the Act the club is not and should not be considered to be a discriminating club for the purposes of s.8 of the Act of 2000. The District judge rejected this argument and held that because the principal purpose of the club is to play golf it did not fall with any of the exemptions provided for in s.9 of the Act. The interpretation of s.9 is the core of the case made by the plaintiffs.
… It is important to note that the Equal Status Act, under s.8, specifically exempts from being ‘discriminating clubs’, certain single gender clubs thus any assertion that it is somehow impermissible to have a male only or female only club is not an issue having regard to the specific provisions of the Act. The question therefore is not whether the legislation permits single gender clubs - it manifestly does - but whether the Portmarnock Golf Club is one of the type of single gender clubs envisaged by s.9 of the Act”. (Emphasis added)
The learned High Court judge then, at page 10 of the judgment, summarised the contentions made on behalf of the Authority, and those made on behalf of the Attorney General, which were somewhat different. He said:
“It is submitted on behalf of the Equality Authority, however, that there must be some logical nexus between the objectives of the club and the category of persons catered for in order for the s.9 exemption to apply. In the case of a single gender club it is argued that there must be a logical connection between the gender and the objects of the club. The Equality Authority also submits that the words are clear under the principal purpose of a golf club is clearly not to cater for the needs of persons of a particular gender but rather to play golf. On that basis the s.9 exemptions do not apply to the plaintiffs. It is also submitted that the playing of golf does not constitute a ‘need’ of men, therefore a golf club cannot be said to be catering for the ‘needs’ of men as is required to come within the exceptions provided for by s.9 of the Act.
The Attorney General adopts a somewhat different approach to exemption from the provisions of s.8. It is conceded by him that a gentlemens club or ladies club - and not only those confined to those whose objects had a logical connection with male or female - could be exempt from the provisions of s.8. It is difficult to see how a ladies club or a gentlemans club might be exempt from the provisions of s.8 while a gentleman’s golf club or a ladies golf club cannot avail of such exemptions”. (Emphasis added)
The learned High Court judge considered it “instructive and helpful” to ask what kind of single gender clubs are contemplated by the Act as falling into the exceptions specifically provided for in s.9. He pointed out that the learned District judge did not address this issue. He continued:
“Although the Equality Authorities submitted that there must be a logical connection between the objects of the club and gender, it is significant that the court was not provided with any example of an existing club of that type. No convincing example was given of any theoretical club which might fall within the definition contended for by the Equality Authority”.
This position continued to obtain on the hearing of this appeal. Indeed, it was a feature of the case that the Equality Authority could not provide either an example of an existing club, (other than “perhaps” the Freemasons) which would fall within the exception. Mr. Callanan S.C. however submitted that it was unnecessary that there should be any existing or even any imaginable club which falls within the exception: the legislature may have been providing for some theoretical future development. Mr. Callanan also said that the club had equally failed to give an example of a single gender club which would fall outside the exemption, though it occurs to me that a club which quite explicitly, according to its own constitution, had an obligation as a principal purpose to cater for needs other than those of the members might do so.
Meaning of “needs”.
The judge said that the Equality agency had adopted the finding of the District Justice that “the ordinary words of the statute do not ascribe to mens golf a special need” and that “the golf club did not cater for the needs of men”. He said:
“[This] would in my view be readily acceptable were the definition of the word ‘needs’ to be construed very narrowly to mean only ‘requirements’ but the definition as set out in the District Court decision also extends to ‘that which is wanted’- a much broader and less stringent criterion than ‘requirements’. It is in my view an unduly stringent interpretation of the word ‘needs’ and would render quite meaningless the s.9 based exemption in the case of persons of a particular nationality or ethnic or national origin (another category of persons encompassed by the provisions of s.9). It is difficult to see how persons could have different needs based on nationality if the word ‘needs’ were to be construed narrowly as being ‘requirements’. For example, in the case of an Italian national it is difficult to see what his or her requirement referable only to nationality might be that would differ from the requirements of non-Italians if the word ‘needs’ were to be narrowly construed. Indeed counsel for the Equality Authority rightly conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a ‘particular nationality, or ethnic or national origin’ the word needs would have to be construed broadly so as to include the cultural needs of the nationality in question. I agree. However, if the word needs is to be interpreted in such a non-restrictive fashion in relation to clubs catering for persons of a particular nationality, it cannot be given a more restrictive interpretation when applied to single gender clubs in the same Section of the Act. I cannot see how cultural needs fall within the definition of needs in relation to persons of a particular nationality while at the same time the sporting needs in relation to persons of a particular gender would be excluded. There are even those who go so far as to equate sport with culture although - perhaps fortunately - that argument was not advanced in the present case.”
The learned trial judge considered and rejected an argument that s.9, if interpreted as the club wished, would deprive s.8 of most of its efficacy. He pointed out that it was a clear purpose of s.9 to exempt some registered clubs from s.8: this exemption was itself part of the statutory scheme. The exemption, on the evidence, extended only to a very limited class of bodies on the evidence and had no effect on the vast majority of clubs. The authority had urged the learned trial judge to adopt a “purposive approach” to the statute in interpreting its provisions. This, said the club, mandated the adoption of a “wide liberal interpretation”. This was an odd submission from a party who needed the narrowest and most rigid interpretation of the term “needs”. The learned trial judge held that such an approach “is of little assistance in the interpretation of the provision of s.9 and in particular in deciding what type of single gender clubs were encompassed by its exemptions… the principle of equality does not assist in ascertaining which clubs are within the exemption. Considerations of gender equality are of no assistance in interpreting s.9 because the provisions of s.9 apply equally to all single gender clubs and not only to men only clubs… the Act therefore does not treat men any differently than women and therefore cannot be said to discriminate against women”.
The learned trial judge considered it important that the long title of the Act (set out earlier in this judgment) described it as an Act to prohibit “types of discrimination…”. It was not designed to prevent “all types of discrimination” and in fact by s.9 specifically exempted from the provisions of s.8 clubs which discriminate on gender and many other grounds.
The learned trial judge concluded that the contention of the golf club made for an intelligible reading of s.9(1)(a), which was straightforward and easy to reconcile with the purposes of the Act. It did not undermine s.8 but qualified its provisions in an understandable way in relation to clubs coming within a particular category. He considered it significant that the court has given no example of an existing club which would fall within the exemption provided by s.9 on the Authorities interpretation. Nor was it given a plausible example of any club which, even in theory, would fall within the Authority’s definition. He rejected the authority’s contention as to the meaning of the term “needs” and said that it amounted to reading words into the statute. He concluded (at p.21):
“The promotion of equality and the prohibition of types of discrimination - the express purposes of the Act - are legitimate and laudable goals of legislation. The interpretation of s.9 as contended for by the golf club does not in my view in any way undermine those aims, but rather recognises the fact that there is nothing inherently undesirable with persons seeking - in a social context - the society of persons of the same gender or the same nationality or the same religion. In a tolerant and free and increasingly diverse society it is not surprising that the type of exemptions envisaged in s.9 were enacted. As a result of which - in terms of registered clubs - it is permissible to have - exclusively - a bridge club for Bulgarians, a chess club for Catholics, a wine club for women and a golf club for gentlemen. In my view too, the significant omission from the s.9 based exceptions of exceptions based on race and colour serves to reinforce the plaintiff’s argument for their interpretation of the Section”.
On p.22 the learned trial judge specifically held that the principal purpose of Portmarnock Golf Club “is to cater only for the needs of male golfers and therefore comes within the exception to the provisions of s.8 provided by s.9.
Submissions on appeal.
On the hearing of this appeal the submissions on behalf of the Equality Agency were very similar to those summarised by the learned trial judge. In certain respects, however, the Authority contended for a more rigid interpretation of s.9(1)(a) than that which it had advanced in the High Court. It reiterated that the term “needs” referred to things which were absolutely necessary and did not extend to catering to the social, cultural or similar preferences of people within the groups for whom discrimination is legitimated by s.9. The Authority argued, as it had to by virtue of the plain meaning of the Act, that a club exclusively for Bulgarians and which could therefore exclude non-Bulgarians, was permitted by the statute but it claimed that the learned trial judge was quite wrong to say that a Bulgarian Bridge Club i.e. a bridge club for Bulgarians was permitted. Bridge was not a “need” of Bulgarians or, presumably, of anyone else. The Bulgarian Club would have to content itself with bringing together Bulgarians. If it had another purpose, such as the playing of bridge (or presumably backgammon, baccarat or bingo) it would cease to enjoy the benefits of s.9 because it would not be catering “only” for the needs of Bulgarians as such. Similarly, a gay mens club would manifestly be within the exemption provided by s.9 but a gay mens Rugby club would not because rugby is not a “need” of gay men "as such", as the Authority interprets “need”. Equally, a ladies club would be quite legitimate and within the meaning of s.9 but a ladies drama club or book club would not be legitimate because the production of plays or the reading or discussion of books is not a need of ladies as such. The Equality Authority went further. A club which openly described itself as a ladies drama club or a ladies book club would loose the benefit of s.9 for the reasons summarised above. But a ladies club which did not so describe itself but which in fact engaged in the production of plays or the reading and discussion of books might become a “discriminating club”, by loosing the protection of s.9, simply because their actual practises, if not their rules, demonstrated that they were catering to needs other than the needs of ladies “as such”. Mr. Callanan was prepared to concede that a ladies club which produced one play in the course of a year or which facilitated the reading and discussion of one book in the course of the year might escape the loss of the protection of s.9 but if it did more than that it would be vulnerable. In other words, said Mr. Callanan, one could indeed arrange to a be a member of a club or association composed exclusively of members of one’s own gender, or sexual orientation, or sharing one’s own absence of religious belief or of the same nationality or ethnic origin as oneself. Furthermore, one could avail of the protection of s.9, thus enabling this exclusive body to make drinks available. But the club could do absolutely nothing more than bring members of the exclusive club together and serve drinks. If, when together, they played indoor or outdoor games, put on a play, discussed a work of literature, had a wine tasting or any of a myriad of such common activities they must loose the protection of the Section because none of these things are “needs” of the gender, racial group, gay or lesbian community as such. That is why, the Authority said, there is protection for a gay or lesbian club but none for a gay rugby club.
This approach seems to me to require the Court to add words to the statutory exception, which I would decline to do. The legislature has specifically not employed the words “as such” on which so much of the Authority’s case is based.
Mr. Callanan emphasised that, in the context of this litigation, it was not for the court, or the club, or even for the Equality Authority, to form or express any view as to whether these provisions were sensible, reasonable, fair or constructive. The authority, he pointed out, did not write the legislation: it had to operate it. It had formed the view that the interpretation set out above was the correct interpretation and that was all that mattered. This was the law which the legislators had produced and it fell to be interpreted according to the ordinary cannons of construction. These, of course, forbid the Court to add words to the Statute.
In the course of argument, Mr. Callanan agreed that the effect of being found “a discriminating club” was to impose a penalty or sanction on the club.
Many Irish statutes, as is well known, may resemble those which have addressed similar problems in other jurisdictions, notably the United Kingdom, or at a broader level notably in the law of the European Union. Mr. Callanan however confirmed that, so far as his client was aware, the present statute has no exemplar anywhere in the world. But it is, of course, an attempt to deal with a particularly Irish dilemma, the reconciliation of a desire to outlaw some types of discrimination with a well established constitutional right of freedom of association, even association on a discriminatory basis.
On the hearing of this appeal, as in the High Court, the Attorney General did not adopt the submissions on the construction of s.9 put forward by the Equality Authority. As recorded by the learned trial judge, the Attorney considered that a ladies book club or a gay rugby club would be permissible under s.9, and did not consider that to avail of the exemption required that the ladies, or the gays or whatever group was in question would have to limit their association to enjoying their own company without enjoying any activity together. But the Attorney emphasised that this matter was not really for him: he was primarily concerned with the constitutional action. But he did not think that a gentlemens’ Golf Club was ipso facto outside s.9, as the Authority did. The High Court judge agreed with him.
(F) Nature of the change in the Authority’s position.
The case for the Authority was as subtly formulated and as cleverly and carefully thought out as the nature of the case, and in particular of the statutory provision, permitted. It is thus quite certain that there is nothing fortuitous about the change in the Authority’s position briefly noted above.
The structure of s.9(1)(a) is a unitary one. It provides that exclusive clubs of certain specified kinds (twelve in all) shall not be considered to be a discriminating club simply because, its principal object being “to cater only” for the needs of members of one of the twelve classes set out in subparagraphs (i), (ii) and (iii), it refuses membership to other persons. It would not vitally affect the structure of the Act if there were, for example, only ten or as many fifty categories of persons mentioned in the Section.
In the High Court, the Equality Authority conceded at one stage that in the case of some of these categories - those whose principal purpose was to cater only for the needs of persons of a particular “nationality or ethnic or national origin” the word ‘needs’ would have to be construed broadly so as to include the cultural or recreational needs of the nationality in question. But, it then said, the word should be differently and more rigidly interpreted as it applied to the gender category even though the word “needs” is the same and the gender category is provided in the same Section of the same Act as provides the nationality etc. category.
On the hearing of this appeal, however, it was not submitted that the word “needs” should be more loosely construed in relation to one category of person rather than another. On the contrary it was submitted that it should be rigidly construed in relation to all the categories: no exceptions. Thus, since the Authority wishes to contend that only a gentleman’s club, and not a gentleman’s golf club, is protected by s.9 it is constrained to argue, by the same token, that only a ladies club, and not a ladies book club, and only a gay club, and not a gay rugby club, enjoys the protection of the Section. This it did, thereby avoiding the difficult position of contending (as it did in the High Court) that the same word “needs” in the same Section and subsection of the same Act should be interpreted in a broad way in favour of persons who wished to associate exclusively with people of the same nationality or ethnic or national origin, but in a narrow way, so as to mean something like “absolute necessities or requirements” against those who wish to associate with persons of the same gender. On the other hand, it is this change of position that compels him to argue that a ladies club, like a gentleman’s club, can cater for no need whatever other than the need for single sex association: drama production, literary criticism, or for that matter knitting, flower arranging or backgammon or golf cannot feature amongst the needs of members for which a ladies club may cater, or a gentleman’s club either. This is a view of extraordinary rigidity. I would not adopt it unless compelled to do so by clear words.
(G) CONSTRUING THE SECTION.
Constitutional context.
There is, both in Ireland and elsewhere, a rich and somewhat complex body of case law and academic writing on the question of freedom of association. If it becomes necessary to consider the Club’s constitutional challenge to portions of the 2000 Act, then it will be necessary to explore this body of law in considerable detail. However, the Club’s constitutional challenge is expressly pleaded as arising only if the Equality Authority’s construction of s.9(1)(a) of the Act is upheld by the Court. In the event that the Club’s interpretation is upheld, the constitutional issue will not arise at all. In that event, the question of what to do about the High Court judgment and order in that context will be considered later.
It is of course necessary to interpret any statute in a manner which is consistent with the Constitution. In the view which I take of the plain meaning of the statute, it is unnecessary to have regard to the constitutional context, except perhaps in one regard. Accordingly I intend to refer to very little of the well established Irish Case Law on freedom of association. Indeed, I think it is sufficient for present purposes simply to set out the constitutional provision on freedom of association and to quote (literally), a single sentence from one of the leading cases on the subject.
Article 46 of the Constitution provides as follows:
“(1) The State guarantees liberty for the exercise of the following rights, subject to public order and morality…
(iii) The right of the citizens to form associations and unions
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.
(2) Laws regulating the manner in which the right of forming associations and unions and the right to free assembly may be exercised shall contain no political religious or class discrimination.”
It will be noted that the foregoing provisions do not purport to create the right to freedom of association but merely guarantee liberty for its exercise. The right to freedom of association is a pre-existing natural right, inhering in human kind by virtue of its rational and social being and is essential to the exercise of various other rights such as the right to engage effectively in political speech, to organise for industrial purposes or otherwise, to take part in elections, to participate in sporting or cultural events, and many more.
The judicial dictum to which I have referred above is from National Union of Railwaymen v. Sullivan [1947] IR 77. Expounding Article 40.6 of the Constitution the Court concluded that:
“Each citizen is free to associate with others of his choice for any purpose agreed upon by him and them.”
The significance of this important finding will become clear when the Equality Authority’s submissions are considered, below.
Interpreting the Section.
Following the approach to statutory construction advocated by Mr. Francis Bennion in his classic work on Statutory Interpretation I identify the unit of inquiry for present purposes as s.9(1)(a) of the Equal Status Act, 2000. One then turns to the nature of that provision: it is clearly a proviso cutting down the effect of the terms of s.8 of the same Act, which allows the District Court to make a declaration that a Club is a “discriminating club” in certain circumstances. The mechanism of this proviso is to declare that a Club shall not be considered a discriminating club by reason only of the fact that it refuses membership to persons outside a particular category, if “its principal purpose is to cater only for the needs” of twelve classes of persons. As we have seen earlier in this judgment the first of these exempted categories are “persons of a particular gender”.
In the novel and ingenious argument advanced on the part of the Equality Authority, emphasis is placed on the introductory words of sub-paragraph (a) of the above Section:
“If its principal purpose is to cater only for the needs of … persons of a particular gender.”
Since there are only two genders to which a person may belong, the last few words plainly mean that it is quite lawful to have a club which discriminates in those who may be members, if its principal purpose is to cater only for the needs of men or of women. In the first instance one may exclude women; in the second, one may exclude men.
This is a comparatively simple situation compared with that which arises with some of the other exempted grounds. Words like “a particular sexual orientation” equally posits the duality of homosexual and heterosexual. But the provision relating to “a particular religious belief” plainly opens the door to the exclusive social organisation of persons of a potentially enormous number of religious beliefs particularly if variants of the main religions are taken into account. Similarly, “age, disability, nationality, or ethnic or national origin” opens a door to the possibility of a separate social organisation in clubs or societies of an enormous variety of people. On the other hand, the category of “persons who are members of the Traveller community” and are thus permitted exclusive social organisation with alcohol by s.9, are easily identified at least in principle and the last remaining category, “persons who have no religious belief” seem simple and unitary, at least by comparison with the enormous number of individual religious beliefs which may need to be considered.
The second obvious point I wish to make is that each and every one of the categories mentioned above is treated alike in the Act. This is now agreed. The Equality Authority at one point contended that the Act should be differently and more broadly interpreted in dealing with the “nationality or ethnic or national origin” category than in dealing with the others but at the hearing abandoned that argument and now contends, correctly in my view, that each of the categories is to be treated in the same way and the Section interpreted in the same way in relation to each of them. This is quite a significant matter.
Thirdly, it follows from the last proposition - that all of the exempted categories are to be treated in the same way under the Section - that an interpretation which would stigmatise a book club or a golf club exclusively for men as a “discriminating club” would equally stigmatise a golf club or a book club, exclusively for women. To look at this from the other point of view, an interpretation permitting a book club or a golf club exclusively for men will equally permit a golf club or a book club exclusively for women. Moreover, this equality of treatment is not confined to men and women: an interpretation along the lines contended for by the Club would enure to the benefit of a rugby club for gays, a bridge club for Bulgarians, a chess club for Catholics and so on.
Fourthly, it was eventually agreed on the hearing of this appeal that the words which make up Section 9(1)(a) are to be interpreted in their literal meaning, that is their ordinary and natural meaning. The difficulty in the case arises from the fact that, that though both sides were agreed on this, each side came up with a completely different result from applying what it said was the ordinary and natural meaning of the words.
“A logical connection”.
The Equality Authority’s argument started from the premise that one could not simply set up any kind of club and claim that it catered only for the needs of men, or of women, of gays or travellers, Africans or Indians, just because one confined membership to one of those groups. On the contrary, said the Authority, there had to be “a logical connection” between the purpose or activity of the Club and the gender, sexual orientation, religious belief, or other ground mentioned in the Section. This argument was expressed in another way in the course of argument in the High Court. It was said that one could plainly have an exclusive club for Bulgarians because of the express mention in the Act of “nationality”. But one could not have a Bridge club for Bulgarians because there is no logical connection between the game of bridge and the condition of being a Bulgarian. It was also expressed in a third way both in the High Court and in this court: it was said that the activity to which the Club was devoted had to be a “need” of women, or men, or Bulgarians, or gay people, or travellers etc. “as such”. According to this argument, in order for the Club to benefit from s.9 it would have to show that golf was a need of men “as such”. In its written submissions, p.21, the Authority expresses this as “the needs of men qua men”, which means, according to the Oxford Dictionary, “men in their capacity as men” (as opposed to men who happen to be fond of golf).
I have no hesitation in rejecting this argument, and on a number of grounds. Firstly, the statute itself does not require that the Club cater to the needs of travellers, or men, or women “as such” or “qua men (or women)”. For the Authority’s argument to succeed the Court would have to be persuaded to read into the statute the words “as such” or some equivalent and I can see no warrant for doing this.
Apart from this, I wish to draw attention to the patent absurdity of regarding any sporting or cultural activity of the sort to which clubs and voluntary societies are typically devoted, as a need of men, or of women, or of Bulgarians “as such”.
We shall see below that for many years now the term “needs” has applied to psychological and cultural as well as physical needs, although the Authority contended the contrary. A great many men play golf and no doubt for some of them the sport, and the social environment which has grown up around it will be counted amongst their “needs”. Equally, a great many women play golf and no doubt, for some of them, the same observation could be made.
Not being a golfer, I have no idea as to the proportion of men, or of women, for whom golf represents a need, an important part of their lives. But in neither case can their deep commitment to the game of golf be said to be “logically connected” to their gender. It is easy to think of many sports, pastimes and cultural pursuits which are seriously important to some persons of either sex. But it is quite impossible to say that any of these are a need of either gender “as such”. One either likes Grand Opera, or one does not. But whether one does or not is emphatically not a function of one’s gender. I would not have thought this obvious proposition worth writing down, were it not that the Authority does not appear to acknowledge its truth.
The ramifications of the view that the statute should be read as though those two words - as such - were added to sub-paragraph (a) are quite startling.
If a “need” is required to be logically connected to one of the eleven categories mentioned in the Section, it follows that it must be a need of, for example, of women “as such”, women qua women. If something is a need of women “as such” or “qua” women then it seems to follow that it is a need of all women. But this is manifestly ludicrous. However many women are devoted to golf, there must be a larger number who are quite indifferent to it. The same could be said of men. Sexual orientation is one of the grounds in which one may establish an exclusive club which would otherwise be “discriminating”. There is in fact a rugby club for gay men, Emerald Warriors, though I have no idea whether or not it is a registered club. It cannot seriously be thought that rugby is a need of gay men, or indeed straight men, “as such”. But this is precisely what the Authority says such a club would have to show to benefit from s.9.
Stereotyping.
The utterly reductive, nature of the Equality Authority’s submission can be illustrated from a consideration of the other parts of the relevant Section of the Act. If the “needs” referred to must be needs of “men as men”, then the phrase “needs” as applied to a ladies club must be the needs of “women qua women” and the needs of the members of a gay club must be the needs of gay men qua gay men, or gay men “as such”. Similarly, the needs of travellers must be the needs of “travellers as such” or “travellers qua travellers”.
At the hearing of this appeal the Equality Authority was utterly unable to suggest even one sport or game which would meet any of these formulations. Moreover, the very attempt to do so involves one in an exercise which is sexist, perhaps racist in some instances, and a crude attempt to stereotype. This is a quite extraordinary activity to be indulged in by an Equality Authority, or in the construction of a statute directed at equal status.
The fact is that the interests and activities of Irish citizens today are much more varied, and shared by a much broader section of the community, than ever before. Not long ago, it might have been thought that boxing was of interest (almost) exclusively to men: this is plainly untenable today, in light of the achievements of Irish female boxers such as Katie Taylor, who is a world Boxing champion. She may be in a minority amongst women in taking an interest in, and participating in, the sport, but that in no way disqualifies her from doing so or from being a member of a Ladies’ club formed for the purpose of boxing. Moreover, it should not disqualify such a club from becoming a registered club under the Act of 1904 as amended if it so desires. But, on the Authority’s submission, such a Club, to avail of s.9, would have to show that Boxing was a need of women qua women. And Ms. Taylor’s very existence as a world boxing champion also demonstrates that boxing is not a need of “men qua men” either. Like every other human activity, boxing is a need of some men and some women, not of all men or all women, and still less of men, women, gays, Bulgarians or travellers, “qua” men, Bulgarians etc.
The fact which the Equality Authority’s submissions ignore is that every sport game or cultural activity will be of great interest to some people, but none will be of interest to all people or even all people in a particular category. Even if one accepts that, for example, boxing is of interest to a much greater proportion of men than of women, that still leaves the irrefutable fact that it is not of interest to all men, or even to most men in any serious way. The Authority advances an interpretation which only has meaning if there is any activity that said can be a “need” of all men, women, married persons, single persons, persons with particular religion, persons of particular ethnic or national origin, or travellers. But this cannot be said because, in the real world, there is no such activity. The Authority can hardly be unaware of this basic fact. Therefore, in advancing the interpretation of the Act which it has, it is consciously attempting to empty s.9 of all meaning.
It was a remarkable feature of the argument in this case that the Authority was unable to give an example of even one existing Club which could benefit from s.9. The reason for this is clear: as the Authority interprets the Section there is no Club, anywhere, ever, that could benefit from it. Indeed, their argument is designed to emasculate the Section. I entirely agree with the observation of Mr. Justice Geoghegan in this case that:
“It seems reasonable to assume that an exempting Section such as s.9 was not dealing with purely theoretical and potentially non-existing clubs but was concerned with actual types of club which did exist within the State.”
I further agree with the same learned judge that:
“The elaborate draftsmanship of Sections 8, 9 and 10 with all their qualifications and exemptions etc. is clearly designed to avoid unconstitutionality having regard to the well established constitutionally protected right to freedom of association. I think it obvious that the Oireachtas was nervous and in my view, rightly nervous, of infringing that right.”
The same conclusion appears to follow from a consideration of what is said about the 2000 Act by the learned authors of the “Statutes annotated” commentary on it. It is not relevant to the present aspect of the case as to whether the drafter’s nervousness that the Act might otherwise be unconstitutional is justified or exaggerated, but the Section is plainly in the nature of a saver whereby certain clubs are exempted from the general fate of discriminating clubs. Against this background the Authority advanced a construction which empties the Section of all meaning: the category of clubs actually within the Section is empty, a “null set”, as one learnt that phrase in elementary mathematics.
For reasons expounded by Mr. Bennion in the work cited above, one must assume that statutory words have some meaning and make some practical sense. (Bennion, 858-866) I am therefore disinclined to adopt an interpretation of the Section which negatives both of these things. And I am certainly not prepared to read words into the Section in order to bring about this, to me, futile and thus absurd result.
Futility.
Since this latter point seems a significant one to me, as I believe it did to the learned trial judge, I will say a little more about it. Mr. Bennion, in part of the code-like series of propositions which compose his work says, at p.858 that “The Court seeks to avoid a construction that produces a futile or pointless result since this is unlikely to have been intended by parliament”. He comes to this conclusion on the basis of a scholarly consideration of the traditional cannons of interpretation such as lex nil frustra fecit, the law does nothing in vain. This maxim was affirmed as part of the common law of statutory interpretation in Halki Shipping v. Sopex Oils [1998] 2 AER 23 at 43/44. The statutory creation of a legally recognised category of entities which has not now, never had and can in practice never have, any members whatever is the very definition of acting vainly or futilely, as parliament is presumed not to do. I have no doubt that the Oireachtas is as much entitled to this presumption as the Westminster Parliament.
The foregoing conclusions are in no way central to my construction of the Section. Their importance is, they exclude the necessity to adopt a broad, purposive construction of s.9, as the Authority contends for, in the alternative. It is literally ludicrous to suppose that the Oireachtas would adopt this futile devising of a legal nonsense - a set of legal entities which could never have any member - when it could easily and be usefully have stated “it shall not be lawful to maintain a club which does not make membership available to persons of both genders”, if that was what it intended to do. I conclude that that was not what it intended to do.
A Club with no Activity
Having regard to the very considerable difficulty which the above considerations represent for the Authority’s case, they put the case in another, even odder, way said however to be a corollary of their first approach. If it is the case that there is no activity which could logically be described as a need of men, or of women, or of Bulgarians, “as such”, then, said the Authority, the effect of s.9 was that although the categories of persons mentioned in it could associate together in a discriminatory way, they could not engage in any activity at all when so associated. It was this that gave rise to their submissions in the High Court (which I regard as wholly artificial) that one could have a Club for Bulgarians but not a Bridge Club for Bulgarians.
As it appears elsewhere in this judgment I regard this interpretation as literally absurd. I have given certain examples of this absurdity. But considered purely as a legal proposition, this is the one aspect of the Authority’s case to the decision on which I think the constitutional jurisprudence may be a necessary aid. The citation above from NUR v. Sullivan makes it clear that persons may associate freely, and may do so for any purpose upon which they agree. I would gloss this only by saying that such purpose must of course be a lawful purpose.
I cannot see how a section which permits association on an exclusive basis to certain classes of persons can be read as requiring that they do not engage in any activity together once they are associated. This would nullify the right to association as it exists in Irish law: if there are no activities there will soon be no club, no matter which of the categories of persons mentioned in s.9 one is speaking of.
The Club caters for Women
The point is made that the Club in question here, Portmarnock, permits women to play golf on their premises and actually provides facilities for this. There is a suggestion that this is in some way inconsistent with their stances in excluding them from membership. This, too, is a grave misunderstanding. It is also said that this prevents the Club from claiming to cater “only” for the needs of men, and this is considered below. Indeed, for one of my colleagues this point is decisive. It is said:
“The fact that Portmarnock caters for women golfers as well as men is a relevant factor. I am satisfied that this is relevant in analysing the facts and in determining whether it is a club with a principal purpose ‘to cater only for the needs’ of men. Portmarnock caters for men and women. It caters more fully for men than for women but that is not the test set down by the Statute - which is to cater ‘only for the needs of’ men.”
For the reasons set out immediately below, and expanded upon later in this judgment, I entirely disagree with that submission. Portmarnock’s purpose, I am satisfied, is to cater for the needs of male golfers. It is necessary to distinguish between the Club’s purpose what the Club is obliged by law is to do. It is obliged by law to cater for the needs of women golfers, in as much as they are part of the general public. This is wholly irrelevant to the question of what the Club’s “principal purpose” is.
I find it difficult to see how the “purpose” of a body of persons can be defined other than by themselves. The fact that they are obliged by law to do other things as well can in no way be regarded as permitting a different purpose to that they have themselves associated for to be attributed to them. Equally, it is necessary to distinguish between “purpose” and “activity”. A club, as that term is understood in the English speaking world, is first and foremost an association of persons who typically share expenses of the maintenance of club property etc. Persons have been known to associate on the basis of various things they have in common which include, for example, nationality and religion. The vast numbers of ladies’ or womens’ clubs around the country plainly illustrate that they also associate on the basis of gender. But once associated they will naturally do something. This is true whether the Club is one for men, for women, for homosexuals, for pensioners or for primary school children. The activity which the Club elects to become involved in may be a matter of great interest for some of the members and little or none for others. Whatever it is, does not detract from the underlying purpose of the Club.
Female golfers are, of course, part of the general public. If a club, or any other sort of organisation, discriminates in its dealings with the general public, then it risks the sanctions created by s.5 of the Act. But that Section exists in the Act precisely for the purpose of regulating the Club in its relationship with the general public. The fact that the Club complies with the law laid down by the legislature in dealing with the general public in no way undermines its right to have a different arrangement in its own private and internal affairs, which is what s.9 permits. Indeed, the distinction which the Act clearly makes between dealing with the general public, and dealing with an organisation’s own private and internal affairs, to my mind considerably strengthens the case for the interpretation advanced by and on behalf of the Club. S.5 is discussed more fully below.
Doubtful penalisation.
It was agreed on both sides of the case that the suspension of a club’s certificate of registration, or still more seriously preclusion of the Club from renewing such certificate, is in the nature of a penalty. The principal effect of this is to prevent the Club from making alcoholic drink available. This, as the Equality Authority said in a press release intended to draw attention to its case against the Club in the District Court is a “significant sanction”.
A penalty or sanction is something imposed by way of example and deterrence, and indeed for pure punishment, following on a finding that a person or entity has been in breach of some rule or law. Indeed, the primary meaning of “penalty” in the Oxford English Dictionary is “a punishment imposed for breach of law, rule, or contract”. Its secondary meaning is described as “a loss, disability or disadvantage of some kind, either ordained by law to be inflicted for some offence or agreed to be undergone in case of violation of a contract.” The relevance of this definition, of course, is that the District Court finding that the club is a “discriminating club” was agreed, on the hearing of this appeal, to be a penalty.
The first oddity about this particular sanction is that it is imposed without any necessity to establish a breach of rule or law and indeed none is alleged. An ordinary licence to sell alcoholic drink can be lost for repeated breaches of the licensing law or on objection on the grounds of bad character. Nothing of the sort is alleged here nor is any irregularity whatsoever concerning the Club’s making alcoholic drinks available.
Apart from the foregoing, there is a rule of law, and a cannon of statutory interpretation, prohibiting doubtful penalisation i.e. the imposition of a penalty by language which is less than clear. This was described by O’Higgins J. in Mullins v. Harnett [1998] 2 ILRM 304 as “the principle against doubtful penalisation”.
In Broderick v. Flanagan [1979] IR 265 at 276 Henchy J. said:
“If the lawmakers wish to trench on personal liberty by extending the range of the criminal law they may do so, within constitutional limitations; but an intention to do so should not normally be imputed to them when the statute has not used clear words to that effect.”
In the first mentioned case, the learned trial judge continued:
“… whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle is correspondingly powerful.” (Emphasis added)
In the present case the penalty was described by the Authority itself as “significant”. In Mr. David Dodd’s book on “Statutory Interpretation in Ireland” it is said that the principle expresses what is at the heart of the maxim “nullam crimen sine lege, nulla poena sine lege - there must be no crime or punishment except in accordance with fixed pre-determined law.”
Moreover though this principle most often arises in the context of the criminal law O’Higgins J. in the case already cited stated “Penal statutes are not only criminal statutes, but any statutes that impose a detriment.” The Act of 2000 is certainly such a statute. This, too, is agreed.
“Only”.
The Authority placed considerable emphasis on this word. It is from it that the Authority derived its submission that there had to be a logical link between the activity of a club and the gender, sexual orientation etc. of the membership. I entirely disagree with that submission. As a purely linguistic matter, the rigid limitation of the Club’s activities to an activity which was a “need” of men, women or travellers qua men, women or travellers, and nothing else, would be inconsistent with the use of the term “principal purpose” which necessarily involves a possible plurality of purposes and activities. Secondly, it seems to me obvious as a matter of ordinary linguistic construction that “only” relates to the category of persons who may be in membership. Thus, for example, a gay club might wish to exclude persons who are not of that orientation, or a women's club might wish to exclude men.
But whether one thinks of men, women, gays or travellers, there is no warrant whatever in the word “only” or in any other word or form of words in this Section for supposing that the activity of a club has to be in need of gays etc. “qua gays” that is to say a need of all gay people. It is in my view quite sufficient, to take the example of a womens’ or ladies’ club that, membership being confined to women, it pursues activities of interest to some women. To take the opposite view involves one in hypothesising some activity which could be described as a “need” of all women and it cannot in my view be done either in the case of women, or of men, or of travellers or any of the other groups mentioned in s.9. To “cater only for the needs of women” it is in my view quite sufficient if the women being catered for themselves agree on an activity, cultural pursuit or interest which they wish to enjoy together in their club. The same applies to men, gay people, travellers, Catholics, Protestants, Jews, and every one of the groups mentioned, and their consistent sub-groups.
An exempted club, to coin that phrase, under s.8 is one whose “principal purpose” is to cater only for the needs of men, or women, or any other group mentioned in the Section. The members are the best and only possible judges of what their own "needs" are.
The word “only” seems to me to qualify the verb “cater” and the catering for the needs of the relevant group is to be the “principal” purpose, an adjective which, as we see elsewhere in this judgment, permits of and indeed assumes the existence of other purposes. It must be emphasised that, this being a Section concerned with the infliction or non-infliction of a penalty, a construction which would tend to favour the infliction of the penalty is to be avoided unless it is clear. The authorities on this question are discussed elsewhere. Thus, any tension (and I am far from holding expressly that there is any) between the terms “principal” and “only” in the same Section which might be thought to lead to unclarity or ambiguity, must inure to the benefit of the Club, and not of the Authority.
Moreover, s.9, like any Section of an Act of the Oireachtas must be construed on the basis that it permits and certainly that it does not prevent, a person or entity to whom it applies from complying with the general law of the land.
The relevance of this last observation is that it is argued by the Authority that, since the Club actually provides facilities and services to women golfers, it cannot be described as catering “only” to the needs of male golfers. Quite apart from the question of whether the adjective “principal” permits this additional purpose, there is the salient fact that for the Club not to provide services to women golfers on the same basis as it provides them to male non-members would be a breach of the law.
Section 5 of the Equal Status Act, 2000 provides, insofar as relevant:
“5(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.” (Emphasis added)
As I understand it, the Club provides facilities for non-members to play Golf on the payment of a green fee. As far as I am aware every Golf Club does this, whether with or without conditions. It cannot be denied that female golfers are a section of the “public generally”. If therefore male golfers are permitted to play golf on the club’s premises despite not being members of the Club, female golfers must also be permitted to do so. To put this in another way, the Club must, by law, cater for their needs in that regard. From the same Section it appears that the Club must also cater for the needs of women golfers in relation to facilities and supply of refreshments, to the same extent that it caters for those of male golfers.
More generally, Section 5 of the Act of 2000 deals with a person, including a club, in his dealings with the “public generally”. On the other hand, Sections 8 and 9 deal with the Club’s internal affairs, in relation to members or potential members. This distinction is mirrored in s.5(2)(b). This subparagraph is one of a number which sets out circumstances in which subsection (1) of s.5 does not apply. Subparagraph (b) provides an exclusion as follows:
“A service related to a matter provided under s.6, or a service offered to its members by a club in respect of which s.8 applies.”
Section 6 of the Act deals with the provision of accommodation and is not immediately relevant here. However, the second phrase of the above subparagraph draws precisely the distinction which I have been endeavouring to expound above: a distinction between legislation requiring non-discrimination in the provision of services to the “public generally” and a service offered by a club internally to its own members.
In my opinion it cannot be realistically said that the Club is in breach of any requirement to have as its “principal purpose” that of catering “only” to the needs of men (or women, or any other exempt group), because it complies with the law of the land in making services available to the “public generally” on a non-discriminatory basis.
Section 9 is designed expressly to permit a club to discriminate, without penalty, in the matter of who it admits to membership and otherwise. It would be a wholly improper and unlawful interpretation of that Section to hold that, in order to avail of it, the Club seeking its protection would have to breach the law in another way. I have no doubt that the legislature did not intend this effect.
(H) European law
Having regard to the incorporation of the European Convention on Human Rights into Irish law effected by the Human Rights Act, 2003, it is relevant to consider the decisions of the Court of Human Rights. Their broad similarity with the Irish decisions permits this to be done quite briefly. The matter is dealt with in Article 11 of the Convention. In Sigurjohnsson v. Iceland [1993] 16 EHRR 462 the Strasbourg Court held, quite consistently with the Irish cases cited above, that freedom of association necessarily involved the correlative negative right to refuse to associate and that therefore an Icelandic law which required taxi drivers to join an association was a violation of Article 11. It was noted that breaching the Icelandic law “was likely to bring about the revocation of the applicant’s licence”. He was thus subject to a form of compulsion “which must be considered incompatible with Article 11”. The decision of the court in Young James and Webster v. The United Kingdom [1982] 14 EHRR 38 is remarkable for its similarity to the Educational Company case cited above. A requirement on British rail employees to join a union on the threat of dismissal was regarded by the court as “a form of compulsion which strikes at the very substance of the freedom guaranteed by Article 11”. In a case with considerable echoes of Meskell, Wilson and Ors. v. The United Kingdom [2005] 35 EHRR 523 it was held that a financial benefit offered to workers who decided to cease conducting collective bargaining through a union “constituted a disincentive or restraint on the use by employees of union membership to protect their interest and accordingly the failure by the U.K. to outlaw such a position was a violation of Article 11”.
Turning for a moment to the law of the European Union, the respondents’ counsel on the present appeal emphasised Council directive 2004/113/EC which implements the principle of equal treatment between men and women in relation to the access to the supply of goods and services. Counsel emphasised the statement by the Commission that “the directive should not apply to the enjoyment of services provided by private clubs which are open to the members of only one sex”. (Emphasis added) Counsel also emphasised certain of the recitals to the directive in particular Recital 3 which stated:
“While prohibiting discrimination, it is important to respect other fundamental rights and freedoms including the protection of private and family life and transactions carried out in that context and the freedom of religion”.
Recital 13 says:
“The prohibition of discrimination should apply to persons providing goods and services, which are available to the public and which are offered outside the area of private and family life and the transactions carried out in that context. It should not apply to the content of media or advertising or to public or private education”.
Recital 16 says:
“Differences in treatment may be accepted only if they are justified by a legitimate aim. A legitimate aim may be the protection of victims of sex related violence (in the case of establishment of single shelters), reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person’s home), the promotion of gender equality or the interests of men or women (for example single sex voluntary bodies), the freedom of association (in cases of membership of single sex private clubs and the organisation of sporting activities (for example single sex sports events). Any limitation should nevertheless be appropriate and necessary in accordance with the criteria derived from the case law of the Courts of Justice of the European Communities”.
It is clear from the foregoing references that EU law protects the position of one-gender private clubs. But it is of course possible that Irish law in this regard is more restrictive than European law, whether or not such restriction would pass muster in Strasbourg or in Luxembourg.
“Needs”.
In the way in which the Equality Agency advanced its case against the club, the construction of the word “needs” takes centre stage. To come within the Section the club must be such that “its principal purpose is to cater only for the needs of persons of a particular gender” etc. It must be quite clear that having a “principal” purpose is not inconsistent with the existence of other purposes as well. Indeed, so to describe one purpose positively implies the existence of other purposes. A principal teacher, a principal partner, or the Civil Service rank of Principal Officer are more or less familiar terms: each implies that there are other teachers, partners and officers, of whom however the one designated with the adjective “principal” is in a position of primacy. Despite the form of words sometimes used by the learned trial judge, I do not think it can be said that the club’s purpose or principal purpose is to play golf: it is to provide facilities for the playing of golf by gentlemen. This does not prevent it from having other ancillary purposes, but, by reason of the deployment of the word “only” these must be linked to the playing of golf by men. I am unconvinced that the word “needs” should be interpreted as meaning absolute necessities or something of that sort: golf itself is not in that category.
There may be a tension between the words “principal”, a word implying a plurality of objects and “only”, implying singularity: but if so that is a defect in the Act and serves only to create ambiguity or obscurity, which must enure against the authority and in favour of the constitutional right to associate. More likely, “only” relates to the gender or other distinguishing feature, such as being Bulgarian, or a traveller, which permits exclusive association.
I entirely agree with the learned trial judge that the wording and basic structure of s.9(1)(a) must be given the same meaning whether it relates to persons availing of the “gender exception”, or persons availing of the “nationality” exception or any of the others, and the same meaning in relation to a men only club and a ladies only club. Similarly, the wording must be interpreted in an identical manner when one is considering, say, a “Bulgarians only club” or a “Nigerians only club”. There is no warrant for treating the words in a different manner, and to do so would itself, ironically, constitute a discrimination.
That said, I regard the interpretation proposed by the Authority, that the club can do nothing except things which are essential to permit the association in the club of Bulgarians, or whatever group is in question with one another, so that the exception does not apply to the Bulgarian Bridge Club, as wholly wrongheaded and as evidencing both a technical error and a strangely limited knowledge of human nature and of words in their current usage. If one assembles a club of Bulgarians, or persons aged between 12 and 18, or persons over the age of 65, travellers, or ladies or gentlemen, one cannot expect the members simply to sit around reflecting on whatever it is they have in common. On the contrary, whether or not the club in its title and constitution is linked to a particular activity (such as golf, bridge, snooker, or the reading and discussion of books) the group of individuals once assembled will naturally do something. They may do a variety of things. This is a fact of universal experience and arises from the nature of social interaction between human beings as observed everywhere and at all times. Many people derive great enjoyment from membership of a golf club, or a rugby club, even though they are far from proficient at the game in question and may indeed not play it at all. Their pleasure is in association with others. But this association requires some activity to coalesce around. Anyone who has ever been involved in a youth club, or a club for pensioners, knows this: if there are no activities there will shortly be no club. Section 9 of the Act preserves the right of at least twelve groups of people to associate on an exclusive basis i.e. to the exclusion of others. When people associate it is an incident of human nature that they will do something together. If one brings together a group of young children at a child’s birthday party, it is predictable that they will chase each other, shout and run about. It would be a cruel host, and it would make for an unsuccessful party, to inform the children that their license to be on the premises was limited solely to the celebration of a birthday and did not include a license to shout or run about since that was not absolutely necessary to the celebration of the birthday. But this, in effect, is what the Equality Authority is saying here.
Moreover, there are activities which are so intrinsically linked with particular groups that they are in fact part of what makes them a group. For example, what is more quintessentially Welsh than unaccompanied singing by male voices? If the Dublin Welsh Male Voice Choir were a club, it could benefit from s.9 on at least two grounds: as catering to a single gender; and as catering to persons of a particular, shared national origin. But as soon as the persons united by these two characteristics designate themselves also as a choir then, according to the argument the Authority felt compelled to make, they would lose the protection of s.9: the statute contains no exemption for singing, even singing of a distinctively and nationally characteristic form, associated throughout the world with the Valleys of Wales.
I do not believe that the Act, properly construed, compels so inhumane and so absurd a result.
(H) An Island of agreement.
If there was one thing on which the authority, the club, and the Attorney General all appeared agreed it was that the effect of s.9 is to provide exemptions for various groups from the terms of s.8. The effect of this is to permit such groups to associate on an exclusive basis, that is to the exclusion of others, without risk to their ability to make drinks available in their premises and at their meetings. The law presumes that statutory words have some effect: it presumes them not to be meaningless (see Bennion, op. cit.). That is why it is so significant that the authority were unable to point to any club, real or imaginary, which could come within the exemption undoubtedly intended to be provided by s.9, if that Section is to be interpreted as the authority wish. If that is so, then the Section is meaningless, otiose and redundant. Nor am I impressed by the argument that the Section was perhaps designed to deal with some hypothetical situation not yet either arisen or even capable of being described. That argument might be made of any manifestly redundant Section and the process of statutory interpretation must be a rational one.
On the other hand, I am in entire agreement with the learned trial judge that the arguments advanced on behalf of the Golf Club provide a consistent account of s.9 which does not deprive s.8 of efficacy and which extends protection to clubs some of which will have enjoyed the protection of the law and the Constitution for as long as the latter document has existed, and of the law for much longer.
(I) Dictionary definitions.
It is desirable at this point to set out the dictionary definitions of certain of the terms discussed above.
The word “principal” as an adjective, which it is in the Statute, connotes “first or highest in rank; most important”. The Oxford dictionary quotes as a recent use of it the phrase “the principal source of information”: it will be observed that this plainly implies that are or may be other such sources.
The term “need”, the singular of “needs”, considered as a noun, is defined “a condition of lacking or requiring some necessary thing, either physically or (now) psychologically…”. (Emphasis added)
These dictionary definitions are all taken from the shorter Oxford English Dictionary, 1993. Of particular significance is the extension of the term “need” or “needs” to include that which is psychologically, as well as physically necessary. This meaning strongly supports the view of the meaning of the term “needs” adopted by the learned trial judge, with which I respectfully agree. Air, food and drink are “needs” in the sense of things necessary to life in a way which poetry, grand opera or football can never aspire to be. But these things, and no doubt many others, are “needs” of some people in a sense which is no less real for being psychological in nature. Indeed, as we have seen, the authority itself at one point conceded that cultural and recreational needs might be included within the term as it is used in the Statute. I believe that they were right in this and are wrong in the excessively narrow construction to which they have since retreated. Furthermore, I do not believe that their interpretation reflects the meaning of the word “needs” as it is now used, as recognised by the Oxford Dictionary.
Commentary on the Statutes.
I accept what is said in the “Irish Current Law Statutes Annotated” note to the 2000 Act, that s.9 was “intended to protect rights of freedom of association, the government having been advised by the Attorney General that the previous provision does not sufficiently protect such rights.” This, indeed, has the manifest effect of cutting down the scope of the category “discriminating club” created by s.8. I also consider it necessary, for the reasons set out at pages 858-866 of Mr. Benion’s work, to ascribe some sensible meaning to the provision. The provision creates limitations on the meaning of the term “discriminating club” and it is necessary to construe the Section accordingly. The authority contended that it was unnecessary that s.9(1) should have any particular meaning which is presently ascertainable because it may, for all one knows, have been enacted to deal with some unimagined but theoretically feasible situation which one cannot even guess at. I reject this as an aid to construction as it seems to me to deprive the enactment of any significant present effect by the speculation that it may have only some presently unknown effect. That is nonsense as the extracts from the Statutes Annotated (above) makes clear.
The need to construe the Section as having some meaning is what makes it significant that the authority has been unable to give an example of any club, or any type of club, which could be within the authority’s preferred meaning of s.9(1)(a).
(K) The nub of the dispute: “needs”.
As noted above the construction of this single word lay at the centre of the dispute between the parties. Neither side contended in a serious way for any meaning other than the ordinary and natural grammatical meaning of the words of the subsection. The club said that it was a gentlemens’ golf club; a golf club for gentlemen. The Authority said that this could not be within s.9(1), although a gentlemens’ club could be: what excludes Portmarnock Golf Club from s.9(1), in the Authority’s view, was that it provided facilities for the game of golf which is not a “need” of men, or of any group mentioned in s.9. It was this very narrow construction which led to all the submissions about a club for Bulgarians as opposed to a Bridge Club for Bulgarians and such like.
In my view the ordinary natural and literal meaning of the word “needs” is that set out in the shorter Oxford English Dictionary. It is broad enough to embrace social, cultural and sporting needs, as well as more basic needs for things such as air, food and water. In my view the Authority’s construction of the term “needs” is a narrow, outdated and unnatural one. Persons “of a particular… national origin” are amongst the groups who may associate exclusively by virtue of s.9(1) the authority itself at one point conceded what is to my mind self evident, that the “needs” of such a group must clearly involve social and cultural needs, felt necessities, as well as purely physical needs. Furthermore, in the plain meaning of the statutory words the body seen as catering for the “needs” of the various groups mentioned is a “Club”. It is the ordinary experience of mankind that such a body, once assembled, will engage in activities, whether the club is one of school children or of old age pensioners. In my opinion it would take words of the plainest meaning to prohibit a club organised on any of the bases specifically mentioned in s.9(1)(a) from engaging in any ordinary and legal activity which its members might enjoy.
I would add that the extremely narrow interpretation of s.9 advanced by the Equality Authority appears to me to be inconsistent with what was said by the former Supreme Court in National Union of Railwaymen v. Sullivan [1947] IR 77. Expounding Article 40.6 of the Constitution the Court concluded that:
“Each citizen is free to associate with others of his choice for any purpose agreed upon by him and them”.
This passage appears to me to make nonsense of the contention of the Authority that, in the case of a club which is prevented from being a discriminating club by the terms of s.9 of the Act of 2000, there can be no purpose to the association of persons within one of the statutory categories, except the association itself. In Sullivan, the former Supreme Court assumed that voluntary association of persons had some purpose or activity, social, sporting, intellectual, economic or otherwise. In my view this is a sensible assumption, it is one vindicated by ordinary experience of life.
I would add that the legislature has seen fit to provide an exemption, also, in the case of clubs for persons of a particular religious belief, and clubs for persons who have no religious beliefs. It would seem extraordinary if, having decided to associate with others on the basis of shared views on religious or metaphysical topics, the members of such clubs could do absolutely nothing by way of expression of their shared views, not even shared, structured exposition of their devotional or atheistical preferences.
I would dismiss the appeal and affirm the decision of the High Court on the construction of s.9(1)(a)
(L) The constitutional issue.
In my opinion, having regard to the conclusion I have reached as to the meaning of the relevant statutory provisions, no constitutional issue arises which it is necessary or proper for this court to determine. As the learned trial judge pointed out, there is ample authority for the proposition that a court should not embark upon a constitutional issue if the dispute between the parties can be resolved otherwise. I may say that I fully understand why, nevertheless, he addressed the Constitution issue: he considered that it would be economical of time to do so in case his decision were taken further. But I cannot consider that an adequate reason for embarking, without necessity, on a constitutional “comment”.
The club’s proceedings make it quite clear that it is only in the event of their losing on the issue of the construction of the statute that they wish to agitate the constitutional questions. This is a perfectly proper attitude: they would have been open to legitimate criticism had they asked the court to decide on the constitutionality of the statute without first seeking to establish whether if, on its true meaning, they could claim the benefit of s.9.
It is further to be noted that the learned trial judge did not make an order on the constitutional issues, presumably because they are hypothetical only, and described his own statements on the constitutional topics merely as “comments”. But he made an order for the costs of the issue. It is not desirable that comments from an authoritative source on the constitutional issues should exist, as it were, in a vacuum. I would therefore set aside so much of the judgment of the learned trial judge that consists of commentary on the constitutional issues raised, and affirm the balance of the judgment, that set out up to p.22 of the approved text. I would also discharge the order for the costs of the constitutional issue.
