THE SUPREME COURT
Record Nos. 32/2016, 42/2016, 43/2016
Clarke C. J.
Garda Representative Association and Amy Bourke
Judgment of the Chief Justice delivered the 7th February 2018
The Minister for Public Expenditure and Reform
1.1 New regulations, which became effective on the 31st March 2014, had the effect of significantly altering the sick leave regime applicable for certain categories of public servants including members of An Garda Síochána. It must be emphasised at the very beginning that the Courts in general, and this Court in particular, have no role in deciding on the merits of the terms and conditions under which public servants are employed. Questions concerning whether the previous regime for sick pay was appropriate and, if change was required, the extent to which any such change might be justified are primarily questions of policy and, indeed, industrial relations. However, many aspects of the arrangements whereby public sector employees or office holders are engaged are governed or influenced either by primary legislation or Ministerial Orders made on the authority of such legislation. Furthermore, the fact that such persons are engaged by the State brings at least the possibility that other legal obligations may arise. It follows that there may be questions as to the lawfulness (as opposed to the appropriateness) of measures adopted which have an effect on the terms and conditions under which public sector personnel are engaged. The central issue raised in these proceedings concerns the extent to which the law may impose an obligation to consult before introducing measures such as those at issue on this appeal.
1.2 This case is, therefore, concerned only with whether the changes to the sick pay regime to which I have referred are lawful. The applicants/appellants (whom, for convenience, I will refer to as the “GRA”) brought judicial review proceedings in the High Court which challenged the lawfulness of the Ministerial Regulations which brought about the alteration in the sick leave regime (the Public Service Management (Sick Leave) Regulations 2014 (S.I. 124 of 2014) (“the Regulations”)). The claim failed for the reasons set out by Kearns P. in a judgment delivered on the 17th October 2014 (GRA & Anor v. Minister for Public Expenditure and Reform (2014) IEHC 457. From that result the GRA appealed to the Court of Appeal. For the reasons set out in the judgments of Finlay Geoghegan and Hogan JJ. delivered on the 2nd February 2016, the Court of Appeal (Ryan P., Finlay Geoghegan and Hogan JJ.) dismissed the appeal. (GRA & Anor v. Minister for Public Expenditure and Reform (2016) IECA 18).
1.3 Thereafter, the GRA successfully applied to this Court for leave to appeal. In accordance with a frequent practice which has developed in relation to appeals brought to this Court under the new constitutional architecture in place since the 33rd Amendment came into effect, the Court identified the issues or grounds which it considered satisfied the constitutional threshold and gave leave to appeal on that basis. However, the Court indicated that it would be a matter for the case management Judge, having heard the parties, and if it was considered appropriate, to refine those grounds in the light of the written submissions filed by the parties during the case management process. This is a practice which the Court is likely to continue in at least the vast majority of cases. I should, therefore, start by briefly setting out the reasoning behind that practice.
2. Grounds of Appeal in New Jurisdiction Cases
2.1 It is important that parties, or potential parties, to appeals to this Court under the new jurisdiction take account of the fact that the panel dealing with an application for leave to appeal will, necessarily, only have available to it relatively limited materials concerning the proceedings and the issues which the parties may wish to raise in the event that leave to appeal is granted. It is important to understand that it would defeat the purpose of the new constitutional architecture if the Court, on an application for leave, were required to go into matters in any more detail than is strictly necessary to determine that the potential appeal meets the constitutional threshold.
2.2 In that context, it is of the utmost importance that parties recognise that the primary focus of the notices required to be filed in the context of an application for leave to appeal should be on identifying in a clear manner the matters or issues which are said to meet the constitutional threshold or, where leave is being opposed, the reasons why it is said that those matters or issues do not meet that threshold. Excessively diffuse and unfocused applications for leave to appeal run the risk of putting the Court in a position where it cannot adequately identify the real issues which might arise on an appeal and assess whether those issues meet the constitutional threshold. It must, therefore, be emphasised that parties who do not approach the application for leave to appeal in such a focused way may be the authors of their own misfortune, in that leave may be refused or granted when another result to the application might have arisen had the arguments for or against been more focused and better directed towards the sole question which arises on an application for leave, being whether the constitutional threshold is met.
2.3 Having said that, it is important that I record that the criticisms just identified do not apply in this case. There is, however, an additional consequence of the fact that the materials which the Court will have to consider on an application for leave to appeal will be limited. It means that the grounds identified by the Court as justifying an appeal to this Court under the new constitutional architecture may need to be refined in the course of case management. In some determinations issued, including that in this case, the Court has made express reference to such a possibility. However, even if not expressly referred to, it will always be open to the case management Judge to seek to bring greater precision and clarity to the issues which will require to be debated at the oral hearing by refining the issues in the course of the case management process.
2.4 It should, however, be emphasised that it is important that any such questions are fully explored with the case management Judge and are not left for debate at the oral hearing. Any questions concerning the proper scope of the permitted appeal should, therefore, be fully and properly raised by any concerned party during case management. Failure to do so may well result in the Court not being prepared to entertain any objections concerning the scope of the appeal at the oral hearing.
2.5 In accordance with the practice which I have identified, the case management Judge assigned to deal with this appeal (Charleton J.) refined the grounds to be pursued at the oral hearing and specified same in the following way:-
2.6 The appeal is, therefore, directed to those issues. As already noted, and as can be seen from those issues, the central question concerns the extent to which parties who are potentially adversely affected by proposed changes in the terms and conditions of those employed in the public sector have a legal entitlement to be consulted before any such adverse measures are adopted.
“(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?
(b) Can the doctrine of legitimate expectation arise in the particular context at issue in this appeal?
(c) Where a representation is made, if, which is denied, any such was made here, which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?
(d) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?”
2.7 There was some criticism made on behalf of the respondent (“the Minister”) to the effect that the precise legal basis on which the Regulations were sought to be challenged had not been particularly clear in the proceedings to date. With that in mind it will be appropriate to turn, shortly, to the way in which the issues were addressed both by the High Court and by the Court of Appeal. However, before so doing it is necessary to address the legal measures which have, over time, governed the fixing of terms and conditions such as those at issue on this appeal and also the facts concerning such engagement as there was prior to the Regulations being promulgated by the Minister. I therefore turn to those questions.
3. The Statutory Provisions
3.1 An aspect of the background to this appeal is the prohibition on garda membership of trade unions, and their representation in lieu of trade union membership. In this regard, s. 1 of the Garda Síochána Act 1977 (“the 1977 Act”) amended the Garda Síochána Act 1924 (“the 1924 Act”) by substituting s. 13 of the 1924 Act to make provision in this context. The 1977 Act and s. 13 of the 1924 Act were repealed by the Garda Síochána Act 2005 (“the 2005 Act”), which made similar provision with regards to representative associations:
3.2 The 2005 Act provided for the making of regulations relating to certain terms and conditions of employment of members of the Gardaí. Section 122 of the 2005 Act is entitled “Regulations relating to the management of Garda Síochána”. Section 122 of the 2005 Act provides in relevant part:
“18.— (1) For the purpose of representing members of the Garda Síochána in all matters affecting their welfare and efficiency (including pay, pensions and conditions of service), there may be established, in accordance with the regulations, one or more than one association for all or any one or more of the ranks of the Garda Síochána below the rank of Assistant Garda Commissioner.
(2) An association established under subsection (1) must be independent of and not associated with any body or person outside the Garda Síochána, but it may employ persons who are not members of the Garda Síochána.
(3) A member of the Garda Síochána shall not be or become a member of any trade union or association (other than an association established under this section or section 13 of the Garda Síochána Act 1924 ) any object of which is to control or influence the pay, pensions or conditions of service of the Garda Síochána.
(4) If any question arises whether any body or association is a trade union or association referred to in subsection (3), the question shall be determined by the Minister whose determination shall be final.
(5) The Minister—
(6) An association established under this section for the purpose of representing members of the Garda Síochána holding the rank of Garda may include persons admitted, in accordance with the regulations, to training for membership in the Garda Síochána.”
3.3 Section 122(4) of the 2005 Act provides:
“(1) The Minister may, after consulting with the Garda Commissioner and with the approval of the Government, make regulations for the management of the Garda Síochána, including regulations relating to any or all of the following matters:
(g) the pay and allowances of members, including the conditions under which they are payable;
(i) the payment of pensions, allowances and gratuities to members and their spouses, children and dependents, including—
(i) the conditions under which those pensions, allowances and gratuities are payable,
(ii) the rates and scales of payment, and
(iii) the penalties for fraudulent conduct in relation to an application for a pension, allowance or gratuity;
(m) the formation of associations referred to in section 18 and matters relating to the role, status and carrying out of business within the Garda Síochána of those associations; …”
3.4 Section 122(6) of the 2005 Act provides:
3.5 The Regulations, however, did not arise by operation of the 2005 Act. However, the 2005 Act and the procedures which it put in place were not repealed. Rather, the Regulations arose by operation of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013 (“the 2013 Act”), which in essence created a parallel system for the making of regulations in relation to the sick leave remuneration of inter alia An Garda Síochána. The 2013 Act inserted Part 7A into the Public Service Management (Recruitment and Appointments) Act 2004 (“the 2004 Act”). Section 58B of Part 7A conferred on the Minister for Public Expenditure and Reform the power to make the Regulations. That section provides as follows:-
“In making regulations, the Minister shall consider the objective of promoting effectiveness, efficiency and economy in the Garda Síochána.”
whilst taking account of the desirability of there being a measure of provision, as appears to the Minister to be appropriate and just, for making payments to public servants who are unable to attend to their duties due to illness or injury.
“(1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—
(a) the whole amount of the remuneration that would otherwise accrue to the person,
(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or
(c) in respect of an initial number of hours, days or weeks of sick leave on the part of that person occurring, in a given period, the whole amount referred to in paragraph (a) and then, in respect of a number of hours, days or weeks of sick leave on that person’s part (whether they are a continuation of the initial occurrence of sick leave in that period or are a separate occurrence of such leave in that period) a percentage specified in the regulations of that whole amount.
(2) Regulations under subsection (1) shall contain a provision that no remuneration shall be paid in respect of any part of a number of hours, days or weeks of sick leave (on the relevant person’s part) that exceeds a number, specified in the regulations, of hours, days or weeks of sick leave (on that person’s part) that may occur in a given period.
(3) Each of the references in subsection (1)(c) to a number of hours, days or weeks, and each reference in subsections (1) and (2) to a given period, is a reference to a number of hours, days or weeks or, as the case may be, a period that the Minister determines and specifies in the regulations for the purpose of the particular provision concerned.
(4) In making regulations under subsection (1), the Minister shall have regard to—
(a) the need to limit the circumstances in which the public service bodies can undertake the commitment of financial resources in making payments in cases in which they are unable to receive the benefit of the services of their public servants,
(b) the resources available, for the time being, to the Exchequer to pay the remuneration of public servants,
(c) without prejudice to paragraph (b), the obligations of the State under the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on 2 March 2012,
(d) with respect to the specification of conditions for an entitlement to be paid remuneration during a period of sick leave, the desirability of having in place a satisfactory means of verifying that the public servant concerned is unable to attend to his or her duties due to illness or injury, and
(e) the need to protect the health of public servants,
3.6 Subsections (5) to (8) provide for additional or consequential matters not directly relevant to the issues which arise on this appeal. Finally, subsection (9) provides:-
3.7 Section 58A provides a definition for the term ‘public service body’ in the context of Part 7A, stating that the term includes ‘the Garda Síochána’
“(9) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”
3.8 Section 58C provides:
3.9 On foot of these statutory provisions, the Minister introduced the Regulations, which detailed the terms of a new sick leave scheme to be applied across the public service. The stated aim of the new scheme was to reduce the cost of sick leave to the State. As noted above, the scheme encompassed An Garda Síochána.
4. The Facts
4.1 On the 14th May 2012, a briefing was held at the Department of Justice and Equality regarding proposals to change sick leave provisions for the public service. Representatives of the Department of Public Expenditure and Reform (“DPER”) were present. Also invited were representatives of the GRA and other Garda representative bodies.
4.2 On the 28th June 2012, a meeting of the Conciliation Council took place. This Council formed part of a scheme designed to provide conciliation and arbitration machinery between the GRA as well as other Garda representative associations, on the one hand, and what Finlay Geoghegan J. in her decision in the Court of Appeal referred to as “official side” representatives i.e. government ministers and the Commissioner of the Garda Síochána, on the other. The issue of sick pay reform was raised at this meeting but detailed discussion was postponed until a later date.
4.3 On the 19th July 2012, the Labour Court issued a recommendation regarding sick pay reform. This arose from a dispute between DPER and the Public Services Committee of ICTU which was referred to the Court. The Labour Court’s recommendations were expected to come into effect from the 1st January 2014. It was stated that “this Recommendation should be of general application to all categories of public servants associated with this referral.” As noted above, members of An Garda Síochána are prohibited from joining trade unions, and thus were not associated with the dispute.
4.4 On the 19th November 2012, a further meeting of the Conciliation Council took place. The issue of sick pay reform was referred to a body called Partnership. This is a forum within An Garda Síochána with representatives of management and the Garda Staff Associations. In January 2013, a Partnership Working Group was established.
4.5 In May 2013, the Haddington Road Agreement was reached. This agreement provided for a review of remuneration and conditions of service of members of An Garda Síochána which was to commence by September 2013 and to conclude by June 2014.
4.6 In September 2013, a Memorandum for Government was circulated proposing the legislative basis for reform of sick pay arrangements across the public service, including An Garda Síochána.
4.7 On the 8th November 2013, the Report of the Partnership Working Group was finalised. This was sent to the Department of Justice and Equality on the 12th November 2013, and to DPER on the 22nd November 2013. The Working Group recommendation was expressed as follows:-
4.8 On the 2nd December 2013, DPER emailed the Assistant Commissioner with its response to the Working Group Report. The substance of this response was subsequently transmitted to the GRA on the 3rd December 2013 at the direction of the Assistant Commissioner, as follows:-
“The Working Group is totally opposed to the implementation of the proposed arrangements. The Working Group is recommending that a derogation from the provisions of the legislation be made for An Garda Síochána pending a full review of the current sickness absence arrangements within An Garda Síochána under the terms of the Haddington Road Agreement.”
4.9 On the 4th December 2013, internal DPER emails state that Mr. Shay Cody, the General Secretary of IMPACT trade union, had contacted DPER and stated that if the Gardaí were given a special derogation from the Regulations he would ballot his members for industrial action. At a practical level in the context of industrial relations it is easy to see the reason why that position was reached. Clearly what had been proposed on the Government side involved a diminution in some of the conditions enjoyed by those in the Public Service. In the difficult economic conditions which pertained at that time it is possible to understand how trade unionists representing members of the public sector were prepared to agree that such measures might be introduced but would be reluctant to countenance the selective exclusion of certain sections of the public sector from those general measures. The difficulties which would be likely to be encountered in persuading the membership of the unions and other representative organisations involved to accept such adverse measures in the event that they were not being imposed across the board are all too obvious.
“In relation to the submission on the application of the revised sick leave measures to members of the Garda Síochána, we have been advised by the Department of Public Expenditure and Reform that the regulations that will be drafted on foot of the enabling legislation will allow the Minister the flexibility to include any public sector organisation in the new Public Service Sick Leave Scheme. AGS will not be included in the first instance. However, any proposed amended sick leave scheme for AGS must demonstrate the potential for significant savings to be achieved in the cost of sick leave. In the absence of such potential being demonstrated the Minister will bring AGS under the terms of the new scheme by amending the regulations.
In stressing the last sentence in the previous paragraph, the Department of Public Expenditure and Reform are very firmly of the view that the proposed amended sick leave scheme for An Garda Síochána must be developed, approved and implemented as a matter of urgency and certainly by the end of the first quarter of 2014.”
4.10 In any event, on the morning of the 5th December 2013, the Minister decided that An Garda Síochána would be included in the Regulations. On the evening of the 5th December 2013, DPER emailed the Department of Justice and Equality, stating that it was the Minister’s “clear direction … that the new scheme should come into effect for all sectors of the public service”. This decision was not relayed to the GRA at this time. On the same morning, the Chief Medical Officer expressed his views on the arguments made in the Working Group Report regarding derogation from the Regulations for Gardaí, stating that he did not agree with the arguments. There was a suggestion at the time on behalf of DPER that the Report of the Chief Medical Officer played a vital role in the decision to include An Garda Síochána in the general measures concerning sick pay which were intended to be introduced. However, it is impossible to avoid the inference that the intervention of Mr. Coady was a particularly central event contributing most significantly to the decision in question.
4.11 On the 12th December 2013, the Minister made a statement in the Dáil to the effect that all areas of the public service, including An Garda Síochána, would be included by the Regulations in the first instance. A similar statement was made in the Seanad on the 18th December 2013.
4.12 On the 19th December 2013, a Department of Justice and Equality official informed Deputy Commissioner Fanning of An Garda Síochána by email that the Gardaí were to be included in the Regulations at first instance, and that they would come into operation in March/April 2014. This email was read out at the Working Group meeting held on the same date. A redacted version of the email was sent to the Garda representative associations on the 20th December 2013.
4.13 On the 23rd December 2013, a draft copy of the Regulations was sent to An Garda Síochána, indicating the inclusion of the Gardaí in the Regulations. On the 24th December 2013, the 2013 Act was enacted, empowering the Minister to make the Regulations. On the 21st and 22nd January 2014, draft regulations (dated 17th January 2014) were circulated to the Working Group. These indicated that An Garda Síochána were to be included in the Regulations. On the 30th January 2014, a letter was sent on behalf of the Garda Commissioner to the Department of Justice and Equality seeking clarification as to whether An Garda Síochána were to be included in the Regulations at first instance.
4.14 The GRA prepared a position paper dated the 4th February 2014 in relation to the figures and costs being considered by the Working Group, alleging they were inaccurate. The Working Group continued to meet throughout February. On the 19th February 2014, the GRA sought a special meeting with the Commissioner’s Consultative Council. The Commissioner undertook to raise the matter of the inclusion the Gardaí in the Regulations with the Department of Justice. On the 28th February 2014, there was a meeting between the four Garda staff associations and Department of Justice officials at the Labour Relations Commission as part of the Haddington Road Review of An Garda Síochána. On the 7th March 2014, a further meeting was held where DPER officials were present. Within minutes of the meeting beginning, a DPER official stated that the Regulations had been signed the previous day and would come into effect on the 31st March 2014.
4.15 Against the backdrop of the legislation and the facts it is necessary to turn to how the issues raised were addressed first by the High Court and then by the Court of Appeal.
5. The High Court
5.1 In the High Court, Kearns P. summarised the arguments raised by the GRA as falling under the following headings:-
5.2 With regard to the question of legitimate expectation, Kearns P. felt that it was not possible to identify any promise or representation such that it would meet the pre-requisites for a claim of legitimate expectation as set out in Glencar Explorations plc and Anor. v. The County Council of County Mayo  1 IR 84. Furthermore, Kearns P. held that even if it were possible to clearly identify such a promise or representation, the national financial background to the introduction of the Regulations was such that the expectation was liable to be disappointed in the public interest. Finally, Kearns P. noted s. 58C of Part 7A of the 2004 Act which states that that Part has effect “notwithstanding … any verbal agreement, arrangement or understanding or any expectation.”
“a) Legitimate expectation;
b) Failure to consult;
c) Taking into account an irrelevant consideration or failing to take into account a relevant consideration;
d) Was the Minister’s decision to include the applicants warranted under Section 58(B) of the Act which obliged him to have regard to the considerations enumerated therein?
e) The Regulations are themselves incoherent.”
5.3 Kearns P. then turned to the issue of fair procedures, and the Minister’s alleged obligation to consult. Kearns P. referred to Gorman v. Minister for the Environment  2 IR 414, and concluded that it is clear from that case that the exercise of legislative powers does not attract the full rigours of constitutional and natural justice and the audi alteram partem rule does not arise in the legislative context, inter alia on the grounds of practicability. Kearns P. distinguished the decisions in Burke v. Minister for Labour  I.R. 354 and in Dellway Investments Ltd. v. NAMA  4 I.R. 1, which were relied on by the GRA, from the present case on the following basis:-
5.4 Kearns P. also took into consideration the decision of the U.K. Supreme Court in Bank Mellat v. H.M. Treasury  UKSC 39. Kearns P. felt that essentially the same principle was enunciated in that case as in Gorman:-
“The decision in the latter case was not a legislative decision, but was instead a decision of NAMA made under a power conferred by the legislature. It was a case which concerned administrative decision-making and is thus altogether different from the present case which concerns the enactment of legislation. In the former case the class of persons affected was a very narrow one, and that was the basis for considering that rules of constitutional justice might arise in that case.”
5.5 Kearns P. went on to state that if a process of consultation is not mandated in the absence of a measure targeting a specific group, it can hardly be said that a particular form of consultation, such as that outlined by the United Kingdom Court of Appeal in R. v. North and East Devon Health Authority, ex parte Coughlan  2 WLR 622, is imposed by way of restraint on the Minister:-
“Thus, in the instant case, although legislation did not dispense with the notion of consultation, the fact nonetheless remains that it addressed, and was intended to address, the entire range of the public service at a time of national financial crisis. This was an over-arching consideration, as indeed is apparent from the enabling legislation. Accordingly, it is the Court’s view that the decision in Bank Mellat, whilst it might be of great value in the context of a targeted decision which affects a relatively small category of persons, cannot be taken as offering a view of legal obligations different from that enunciated by Carney J. in the Gorman case. On the contrary, the underlying basic principle elaborated in the Gorman case is expressly acknowledged in the Bank Mellat case.”
5.6 Kearns P. also rejected the contention that once a process of consultation was in place, the applicants were entitled to expect that that process would continue to a conclusion before the Minister was free to introduce the regulations in question, especially as Kearns P. felt that the GRA desired a process which would continue to a conclusion which would be satisfactory to their members. Kearns P. stated that this would be too great a fetter on the powers of the Minister.
“Were that to be the case, a Minister or government, confronted with a national financial emergency, would in effect be tied hand and foot when trying to legislate in circumstances where disparate demands from different groups within the public service were being pursued.”
5.7 Kearns P. then turned to the questions of relevant/irrelevant considerations, statutory criteria and the alleged incoherence of the regulations. As those issues are not before this Court on this appeal it is only necessary to note that the arguments put forward by the GRA under those headings were rejected.
5.8 Ultimately, the President felt that the relief sought by the GRA, which he characterised as “a limited form of procedural relief which would defer the application of the Regulations to one specific public service sector, namely An Garda Síochána, until a consultation process proceeded to a conclusion”, which conclusion would presumably be in favour of the GRA, would amount to a serious and untenable limitation on the power to legislate.
6. The Court of Appeal
6.1 The GRA appealed the decision of the High Court to the Court of Appeal, appealing in relation to each ground. Finlay Geoghegan J. noted that in the oral hearing the GRA focussed primarily on legitimate expectation and the alleged duty to consult which are, of course, the issues before this Court.
6.2 With regard to the question of legitimate expectation, both Finlay Geoghegan and Hogan JJ. agreed with the conclusions of Kearns P. in the High Court. Finlay Geoghegan J. stated:-
6.3 Hogan J. stated that, once the 2013 Act was enacted, any expectation of a process of consultation could not prevail against the enactment of the legislation. Furthermore, he stated that it appears that s. 58C(b) of the 2013 Act expressly disapplied any such expectation as may have arisen.
“In my view, Kearns P. for the reasons set out in his judgment was both correct in his legal approach to examining whether or not the applicants had established either a statement or a position adopted by the respondent which amounted to a promise or representation to GRA that there would be a consultation process of the type for which they are now contending and that on the facts herein no such promise or representation had been made out.”
6.4 Both Finlay Geoghegan and Hogan JJ. agreed with the conclusions of Kearns P. in the context of the Minister’s alleged duty to consult. Finlay Geoghegan J. undertook a review of the authorities, including Burke, Gorman and Bank Mellat, and concluded as follows:-
6.5 Similarly, Hogan J. stated:-
6.6 Finlay Geoghegan J. concluded that the power delegated to the Minister under the 2013 Act was a delegated legislative power and therefore no duty to consult arose in the exercise of this power. Hogan J. concluded:-
“52. Where, however, the actions of the legislative and executive branches involve policy formation and the approval of generally applicable rules contained in either primary legislation or in a statutory instrument, entirely different considerations apply. Not only is the nature of the decision making different – which, as I have already endeavoured to point out, is itself a reason to justify the non-application of the principles of fair procedures – but as Carney J. noted in Gorman and as Kearns P. stated in the judgment under appeal, decision making of this kind would become impracticable were the principles of fair procedures to be applied.”
6.7 The Court of Appeal also rejected the arguments put forward by the GRA under other headings not relevant to the issues which arise on this appeal.
“These are generally applicable rules which were made by the respondent Minister pursuant to the authority conferred on him by the 2013 Act. The principles of fair procedures have no application in the context of the making of generally applicable regulations of this kind.”
6.8 Accordingly, both Finlay Geoghegan and Hogan JJ. concluded that the decision of Kearns P. was correct, and that the appeal should be dismissed.
7.1 As the arrangements governing terms and conditions such as sick pay in An Garda Síochána are significantly governed by statutory provisions it is appropriate to start with a consideration of the relevant legislation. There is no doubt but that the 2005 Act, taken by itself, entitles certain Garda representative bodies to make representations before regulations under that Act concerning such terms and conditions are finalised. The text of s. 122(6) of the 2005 Act, cited earlier, is clear in its terms. The Minister (in that case the Minister for Justice and Equality) is required to consider any representations made in relation to draft regulations by associations covered by the 2005 Act itself. The GRA is, of course, such an association.
7.2 It follows that, if the 2005 Act were the only legislation relevant to the issues in this case, the starting point would be that the GRA would be entitled to make representations or observations on draft regulations and would be entitled to expect that the Minister for Justice and Equality consider those representations or observations before finalising the measures in question. It seems to me to necessarily follow from the clear statutory obligation on the Minister for Justice and Equality to consider such representations or observations that it is implied that a process must be put in place to give some reality to that obligation. It further follows that a reasonable period of time would need to be allowed between the submission of a draft to relevant associations such as the GRA so as to enable them to make representations and to allow the Minister an opportunity to consider those representations. Any other view would render meaningless the clear statutory intent of section 122.
7.3 However, it is clear that the statutory regime does not require prolonged interaction between the parties, being the Minister and the associations. Rather the statutory scheme requires the Minister to submit draft regulations to the associations, to afford the associations a reasonable opportunity to make representations and that the Minister bona fide consider those representations before coming to a final decision. What is envisaged is not a process of negotiation but rather a process involving a single opportunity to make representations on a proposal.
7.4 It is, of course, always open to a Minister, such as the Minister for Justice and Equality, to engage in more widespread discussions so as to reach a consensus before putting measures in place. There are many reasons why it may be prudent so to do. But the Courts are only concerned with identifying and enforcing the legal obligations of the Minister in a case such as this. The fact that it might, in some circumstances, be considered prudent to go beyond those legal obligations is not relevant in proceedings such as these although it may have a wider relevance in the public domain. However, at least so far as the 2005 Act is concerned, the legal obligation on the Minister is to provide a draft of any proposed regulations intended to be made under the legislation, to afford an appropriate opportunity to Garda representative associations to submit observations or representations on the draft and to consider those representations or observations before promulgating the final version of the regulations concerned.
7.5 Next, it may well be seen that the requirement for a draft and a facility to make representations, which is set out in s. 122, forms part of an overall set of arrangements as part of which members of An Garda Síochána are precluded from engaging in certain aspects of what might be termed ordinary industrial relations. Members of An Garda Síochána are precluded from going on strike. Furthermore, the only form of collective representation permitted is by means of associations recognised in accordance with the terms of the 2005 Act. Those organisations are not, in accordance with the terms of the legislation already cited, permitted to be part of wider organisations such as umbrella bodies encompassing the trade union movement.
7.6 At least some of the restrictions concerned may involve an interference with constitutionally guaranteed rights such as the right of freedom of association provided for in Article 46.3 of the Constitution.
7.7 However, doubtless, the legislature took the view that the disciplined nature of An Garda Síochána required that restrictions be placed on the exercise by members of An Garda Síochána of the kind of industrial relations action or involvement which is generally available to most other employees. But in doing so it may well have been considered appropriate to give the statutory right to make representations which is set out in section 122. A challenge to the constitutionality of the legislation restricting the freedom of members of An Garda Síochána to form or join trade unions was unsuccessful in both the High Court and this Court in Aughey v. Ireland  ILRM 201 and  ILRM 87.
7.8 However, indeed, there may well be an argument that any significant restriction on what might otherwise be considered to be the entitlement of persons to exercise normal industrial relations rights or rights of association (whether those restrictions arise by statute or constitutional requirement or convention), must comply with the principle of proportionality. Clearly, the disciplined nature of a police force such as An Garda Síochána may justify such restrictions as being required to meet a legitimate public end. However, if the principle of proportionality were to apply, the restriction would need to be confined to the minimum necessary to achieve that end and be proportionate to the aims sought to be advanced. While the matter was not argued on this appeal, it is at least possible, therefore, that the statutory entitlement to make representations may be seen as being required to ensure that the restrictions on conducting what for others would be considered ordinary industrial relations activities might be proportionate.
7.9 However, be all that as it may, the legislative framework is not, of course, confined to the 2005 Act but also is governed by the 2013 Act, which applies to all public servants as defined and which, in its terms, purports to have a degree of superiority to all other legislation. As noted earlier section 58C of the 2004 Act (which was inserted by the 2013 Act) provides that the relevant provisions have effect notwithstanding any provision made by or under any other Act. The Regulations under challenge in these proceedings were, of course, made under the relevant part of that legislation. Thus, that legislation, under which the Regulations were made, purports to operate notwithstanding, amongst other things, “any provision made by or under … any other Act” including, presumably, the provision for draft proposals followed by representations set out in s. 122 of the 2005 Act. (See section 58C).
7.10 It is a somewhat anomalous position that the result of the insertion of s. 58C into the 2004 Act by virtue of the 2013 Act created, in effect, two parallel systems whereby certain aspects of the terms and conditions of members of An Garda Síochána could be varied. The original general provision providing for variation by the Minister for Justice and Equality after a process providing for representations remained in place. However, there was now a parallel process whereby the Minister for Public Expenditure and Reform could use the new powers inserted into the 2004 Act by the 2013 Act. Thus, there was the rather strange situation that the Legislature had provided for two ways in which a particular measure might be put in place providing for different Ministers to exercise the powers concerned and providing for a different process which had to be followed prior to the exercise of the relevant statutory authority. The difficulties which can be encountered in circumstances where it might be said that a second and subsequent statutory regime had the effect of depriving a party of a process or rights which were available to that party under an earlier, and unrepealed, regime were identified and discussed in Mulcahy v. Minister of the Marine (Unreported, Keane J, High Court, 4th November 1994). It would certainly have been preferable if the 2013 Act removed the relevant aspects of the power of the Minister for Justice and Equality either generally or at least to such an extent and for such period of time as that aspect of the power concerned was to be, in effect, overridden by the power being given to the Minister for Public Expenditure and Reform.
7.11 However, in this case it is clear that the power which was actually exercised by the Minister for Public Expenditure and Reform was a power introduced in legislation designed to deal with an acute financial situation and had the potential to apply across the entire public sector. It may well be that such legislation was only constitutionally permitted because of the extraordinary circumstances concerning the public finances then pertaining. However, if a parallel regime were to be established in other circumstances without either repealing or appropriately amending the existing scheme so that two different regimes conferring different rights on affected parties were permitted by the Legislature to co-exist, the sort of difficulties of interpretation identified in Mulcahy might well arise. However, in the circumstances of this case, having regard to the purpose of the amendments introduced by the 2013 Act and the need for such measures to potentially apply even-handedly across the public sector as a whole, and also having regard to the wording of s. 58C itself, I am satisfied that the separate power conferred by the amendments introduced by the 2013 Act on the Minister for Public Expenditure and Reform legitimately co-existed with the more general power of the Minister for Justice concerning terms and conditions which pre-dated it.
7.12 It follows that the legislation itself envisages that, notwithstanding the provisions for consultation which exist in relation to An Garda Síochána under the 2005 Act, regulations affecting terms and conditions can be made under the general Public Service Provisions introduced by the 2013 Act. In those circumstances it seems to me that the following questions arise:-
7.13 I propose first to consider the question of whether, when considered purely as a matter of statute law, an entitlement to make representations could be said to exist at the relevant time. That encompasses issues (a) and (b) above.
(a) As a matter of statutory construction is there any basis for suggesting that the obligation to consult or consider representations as set out in the 2005 Act can still apply notwithstanding section 58C;
(b) If not does the power to make regulations under the measures contained in the 2013 Act itself carry with it a general obligation to consult or consider representations;
(c) If the answer to both (a) and (b) is no, is there any legal principle which would require consultation or an entitlement to make representations and have same considered before measures impacting on terms and conditions of An Garda Síochána are introduced;
(d) Is there anything in the history of events leading up to the making of the Regulations which could have created a legally binding expectation that such a process would be engaged in; and
(e) To the extent that under any one or more of the above headings some obligation may lie in law on either the Minister for Justice and Equality or the Minister for Public Expenditure and Reform to consider representations, did the process comply with any such legally binding obligation.
8. Statute Law
8.1 It seems to me that the answer to question (a) at least is clear. The provisions introduced by the 2013 Act, and in particular s. 58C, are in unequivocal terms. The Minister for Public Expenditure is given the power to make regulations of the type specified in that Act notwithstanding the provisions of any other Act.
8.2 One such other Act is, of course, the 2005 Act, which gives power to the Minister for Justice and Equality to make regulations concerning An Garda Síochána but only after provision had been made for representations by Garda representative associations. The 2013 Act was clearly designed to allow the Minister for Public Expenditure and Reform to by-pass any other scheme whether that Scheme was established by statute or otherwise. The 2013 Act creates a stand alone regulatory mechanism which covers the making of sick pay regulations of the type at issue in these proceedings. In those circumstances, it does not seem to me that it can be said that the regime provided for in the 2005 Act can still be said to be applicable in circumstances where the Minister for Public Expenditure exercises the power conferred on him as a result of the 2013 Act. Obviously, if the Minister for Justice and Equality were to make regulations under the 2005 Act, then its provisions concerning representations would continue to apply. However, provided the Minister for Public Expenditure and Reform exercises the powers conferred on him by the 2013 Act within the parameters specified in that Act, then the 2005 Act and its provision for representations, can have no application.
8.3 It must also be recalled that there was no challenge to the constitutional validity of the 2013 Act. Furthermore, that Act applied to a very wide range of public servants. It would, of course, have been possible for the Minister for Public Expenditure and Reform to have excluded An Garda Síochána from any sick pay measures introduced or to have afforded a further opportunity to the GRA to make representations concerning the applicability of a new sick pay regime for An Garda Síochána. But the 2013 Act does not make any express provision for consultation prior to the exercise by the Minister for Public Expenditure of the regulatory powers conferred on him by that Act.
8.4 However, that leads to the issue which was considered in some detail by the Court of Appeal, being as to whether, leaving aside altogether the position under the 2005 Act, the making of regulations under the 2013 Act itself required something akin to fair procedures and thus a right to make representations. It is at least possible to consider that such an obligation could arise for either or both of two legal reasons. First it might be argued that the statutory power to make regulations conferred on the Minister for Public Expenditure and Reform by the 2013 Act carried with it an implied obligation of consultation or right to make representations or observations either generally or in certain circumstances. Alternatively, and this was the issue more centrally pressed on this appeal, it might be argued that the facts of this case give rise to a legitimate expectation that such consultation or opportunity to make representations or observations would occur. Indeed it is interesting to note that one of the first Irish cases on legitimate expectation, Fakih v Minister for Justice (1993) 2 I.R. 406, arose in circumstances where the relevant minister had indicated in writing that certain procedures would be followed in relation to asylum applicants. Thus a legitimate expectation that a public authority will not resile from a procedure to which it has committed is a well recognised type of expectation which can, in appropriate cases, be enforced by the Courts.
8.5 However, I will turn first to the question of whether it might be said that there is an implied obligation under the measures introduced by the 2013 Act to provide generally for consultation before the making of orders by the Minister for Public Expenditure and Reform. It is, of course, the case that the type of delegation which can arise under statute can vary very considerably. It has long been accepted that primary legislation does not carry with it any entitlement on the part of persons, who might be affected by such legislation, to be heard in the process leading up to the enactment of the legislation concerned. The Constitution confers on the Oireachtas the sole power to make legislation. It is the democratic process itself which affords any interested parties such entitlement as they have to seek to influence the outcome of the legislative process. Persons who may be adversely affected by proposed legislation can seek, through a whole range of legitimate ways, to influence legislators prior to the proposals becoming law.
8.6 At the other end of what might reasonably be described as a spectrum, legislation may confer on a decision maker the power to make specific decisions affecting the rights and obligations of individuals. Sometimes that power is conferred on a Minister, sometimes the power is conferred on officials and sometimes the power is conferred on a statutory body. In such cases, it is clear that constitutionally fair procedures must be followed prior to any adverse decision being made.
8.7 However, it does not seem to me that the real question which arises in determining whether constitutionally fair procedures are mandated is concerned with the form in which such a decision is promulgated. The fact that an individual decision affecting individual rights and obligations might take the form of a statutory instrument could not, in and of itself, deprive the individual concerned of such entitlements in relation to fair procedures as they would enjoy if exactly the same decision were to be taken in a different form. The entitlement to fair procedures depends on the substance rather than the form of the type of decision which may be taken.
8.8 That being said, there clearly are many forms of delegation conferred by statute whereby the role conferred (most typically on a Minister or the Government) can properly be described as a secondary legislative function rather than an individual decision making function. It seems to me to be unnecessary, for the purposes of this case, to attempt to define with any precision where the line between a legitimately delegated legislative function, on the one hand, and an individual decision making function, on the other hand, may lie. The entitlement to make regulations such as those at issue in these proceedings, which potentially affect the entire public sector and where the only decisions made concern the nature of a new sick pay regime to be introduced and questions as to whether any particular broad section of public servant is to be included, fall clearly on the legislative end of the scale.
8.9 For those reasons, I am not persuaded that there is anything in the 2013 Act which would generally require that there be consultation prior to the making of regulations of the type which are at issue in these proceedings. I will shortly consider whether the position in respect of An Garda Síochána might be different.
8.10 However, having concluded that there is no express or implied general entitlement under statute to have representations concerning terms and conditions considered in the circumstances of this case it is necessary to go on to consider the further issues arising. For reasons which I hope will become clear I will, in substance, move to issue (e) as identified earlier.
9. Was there Consultation?
9.1 For the purposes of this analysis I am prepared to accept that it is arguable that persons, such as members of An Garda Síochána, who may legitimately be deprived of the full range of industrial relations machinery for reasons connected with the public good, may be entitled, so that such restrictions might be considered proportionate, to a form of process which allows for either consultation or an entitlement to make representations. I would emphasise that I do not reach a conclusion to that effect, but simply am prepared to consider this case on the basis that such an entitlement may possibly exist.
9.2 I am also prepared to accept, on the same basis, that it may be arguable that the conduct of the relevant interaction between what might loosely be called the Government side and the representative associations of An Garda Síochána was such as to give rise to an expectation that there would be some level of consultation or right to make representations before the powers conferred by the 2013 Act to make regulations of the type in issue in these proceedings was exercised. In saying that I note that both the High Court and the Court of Appeal were not persuaded that there was any sufficiently clear statement or action on the part of the Government side so as to create a legitimate expectation of any particular type of consultation or right to make representations. In my view, and for the reasons set out in the judgments below, those Courts were correct in those conclusions. This is not a case where, as happened in Fakih, there was a letter specifying with some precision the procedures which were intended to be followed. The height of any expectation which could have been enjoyed by the Garda representative associations was to a more general entitlement to make representations. Likewise the height of any entitlement to make representations, which might be said to exist in the context of same being required as part of a proportionate set of measures which restricted the industrial relations activities of persons such as members of An Garda Síochána, could only be an entitlement to a general form of consultation or right to make representations.
9.3 It is important, therefore, to emphasise that the assumption which I am prepared to make, for the purposes of the argument, is that there might be a general entitlement to consultation or a right to make representations arising under either of the two headings just discussed. However, there is nothing to suggest that, under either of those headings, there is a right to a specific form of consultation less still to any particular outcome to such discussions.
9.4 Against that backdrop it is necessary to consider the facts.
9.5 The prospect of a possible change to sick leave provisions for the public service had been under consideration from at least May 2012. Garda representative bodies had an involvement from that stage. It is, of course, the case that the Garda representative bodies were not involved in the dispute on which the Labour Court issued recommendations for the very reason that members of An Garda Síochána are prohibited from joining trade unions.
9.6 But it was certainly clear by the Autumn of 2013 that proposals were under consideration relating to a general change in the sick pay regime across the public sector and that active consideration was being given to including An Garda Síochána in such measures. The Working Group established by Partnership (involving representatives of Garda staff associations), made a case in November 2013 opposing the inclusion of An Garda Síochána in the new sick pay regime pending a full review.
9.7 It is true that there was an initial indication that members of An Garda Síochána would not be included in the measures to be adopted at least at the beginning. However, on the 12th December 2013, the Dáil was informed that An Garda Síochána would be included. The relevant legislation came into force in late December. There followed various contacts between both sides up to the 28th February 2014 when there was a meeting between the Garda staff associations (including the GRA) and officials from the Department of Justice at the Labour Relations Commission.
9.8 Against that backdrop it is difficult to see how any general entitlement to make representations was denied. The right to make representations does not involve an entitlement to be successful in ensuring that the measures ultimately adopted are acceptable to those who have the right to have their representations considered. It is an entitlement as to process rather than an entitlement as to outcome.
9.9 If there were a legally binding and operative statutory scheme or other arrangements which had the force of law (or indeed a statement giving rise to a legitimate expectation) whereby there was in place a binding and specific process of consultation or entitlement to make representations, then, of course, it would be necessary to assess whether any process actually followed complied with such binding arrangements.
9.10 If the law requires, in express terms, a particular form of engagement, then a measure adopted which failed to comply with the relevant legally binding form of engagement might itself be legally flawed. For example, in order that regulations made under the 2005 Act be valid, it would be necessary that a draft be presented to the relevant associations and an opportunity given to make representations which in turn would have to be considered. However, for the reasons which I have sought to analyse earlier, I am not satisfied that there is any express or formal measure in place which entitles the GRA to any particular form of consultation or right to make representations prior to the exercise by the Minister for Public Expenditure and Reform of the powers at issue in this case. It follows that the height of any general and non-specific entitlement which may exist is that there be an adequate opportunity to put forward one’s case and to have it considered. It is manifestly clear that the GRA had such an opportunity over a considerable period of time. It was clear that the possibility of a change to the relevant sick pay regime for An Garda Síochána was under consideration for over twenty months prior to the Regulations finally being adopted. It was also clear that the position of the GRA (and the other representative associations) was to suggest that there should be a derogation in favour of members of An Garda Síochána and that separate consideration should be given to the sick pay regime applicable to them. That case was repeatedly made through different fora over that twenty month period.
9.11 Even if, therefore, some generalised entitlement to consultation or to make representations can be said to derive from the industrial relations limitations placed on An Garda Síochána, or to arise from any alleged legitimate expectation, I am not satisfied on the facts that there could be any basis for suggesting that there was a failure to afford such entitlement to the GRA. Any such entitlement, should it exist, could only extend to a reasonable opportunity to make representations. I cannot see, on the facts, that the GRA were deprived of any such reasonable opportunity.
9.12 In those circumstances it does not seem to me that the claim of the GRA can succeed. It follows that it is unnecessary to reach a final conclusion on the question of whether any entitlement to consultation or to make representations can be said to exist for even if it does the facts do not support a conclusion that there was any breach of such an entitlement.
10.1 In summary, therefore, for the reasons set out earlier in this judgment, I have first concluded that the relevant statutory regimes do not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the 2013 Act. The Regulations were introduced under that Act. That Act is, in its terms, stated to apply notwithstanding any other legislative provision.
10.2 I have, for the purposes of the argument, been prepared to accept that it is possible that the GRA was entitled to some engagement prior to the making of such Regulations on one or other or both of two bases. The first being the possibility that the restrictions placed on the ability of An Garda Síochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted. The second is that it may again be arguable that the history of the engagement between the parties is such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded. However, I have also concluded that under neither of those headings is it arguable that there could be a right to any specific form of process. Rather the height of the argument could only extend to an entitlement to a generalised form of consultation or facility to make representations.
10.3 On that basis I have considered the facts and concluded that no breach of any such general entitlement has been established. There was a lengthy engagement between what might loosely be called the Government side and the GRA. On that basis I have come to the view that, even if any generalised right of the type which I have described could be said to arise on any of the legal bases put forward, no breach of any such entitlement has been established. For that reason I do not consider it necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached.
10.4 For those reasons I would dismiss the appeal and affirm the orders of the Courts below.