CA18 Garda Representative Association & anor -v- Minister for Public Expenditure and Reform [2016] IECA 18 (02 February 2016)

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Cite as: [2016] IECA 18

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Judgment
Title:
Garda Representative Association & anor -v- Minister for Public Expenditure and Reform
Neutral Citation:
[2016] IECA 18
Court of Appeal Record Number:
2014 29
Date of Delivery:
02/02/2016
Court:
Court of Appeal
Composition of Court:
Ryan P., Finlay Geoghegan J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
Result:
Dismiss
Judgments by
Link to Judgment
Concurring
Finlay Geoghegan J.
Ryan P., Hogan J.
Hogan J.
Ryan P.



THE COURT OF APPEAL
Appeal No. 2014/29CA & 1400

[Article 64 transfer]


Ryan P.
Finlay Geoghegan J.
Hogan J.

GARDA REPRESENTATIVE ASSOCIATION

AND

AMY BOURKE

Appellants/Applicants
- AND -

MINISTER FOR PUBLIC EXPENDITURE AND REFORM

Respondent/Respondent


JUDGMENT delivered on the 2nd day of February 2016 by Ms. Justice Finlay Geoghegan

1. This appeal is against a judgment of the High Court (Kearns P.) delivered on the 17th October, 2014 and order made pursuant thereto (save as to costs) in which he refused to grant the applicants, Garda Representative Association (“GRA”) and Ms. Amy Bourke the reliefs sought by way of judicial review.

2. GRA is the representative body for rank and file members of An Garda Síochána. Ms. Bourke is a member of the force. Initially GRA alone applied and was granted leave to apply for judicial review in which the primary relief was a declaration that the Public Service Management (Sick Leave) Regulations 2014 (S.I. 124/2014) (“the Regulations”) are ultra vires the respondent and related declarations and injunctions. An application for interlocutory relief was refused by the High Court (Peart J.) in May 2014. Subsequently Ms. Bourke was added as an applicant, by reason of locus standi concerns and leave granted to amend the statement of grounds.

3. Following the exchange of affidavits and amended statements of grounds and opposition in the High Court in the matter that came on for hearing before Kearns P. A further amendment was permitted to the statement of grounds by reason of disclosures in the discovery.

4. The primary grounds upon which the appellants challenge the validity of the Regulations are the procedure followed by the respondent in making same. It was and is contended on appeal that the respondent was oblige to consult with GRA in advance of making the Regulations and failed to do so. The submission is principally based upon an asserted legitimate expectation that it would be consulted or in the alternative that the respondent in exercising the statutory powers conferred on him to make the Regulations was obliged to consult. Whilst additional grounds were relied upon and rejected in the High Court and again pursued on appeal, the primary issue on appeal is whether or not Kearns P. was correct in dismissing the applicants’ challenge to the validity of the Regulations based upon the procedures followed was or was not correct.

Background to proceedings.
5. The factual background and legal framework in which the proceedings arise is fully set out in the judgment of the High Court. It is not necessary to repeat it in detail for the purpose of explaining the decision I have reached. I have taken into account in reaching my decision all the facts averred to and the relevant documents to which the Court was referred. In summary the background is as follows. Prior to 2012, sick leave payments for An Garda Síochána were set out in a Garda Síochána (Finance) Code Regulation or Garda code. The Minister for Justice and Equality and not the respondent had statutory responsibility for same pursuant to s. 122 of the Garda Síochána Act 2005. In 2012, the Department of Public Expenditure and Reform (DPER) initiated proposals to change sick leave provisions for the public service in general. In May 2012, there was a meeting in the Department of Justice and Equality (“DOJE”) attended by a representative of DPER and members of GRA at which there was a briefing in relation to the said proposals.

6. On the 28th June, 2012, there was a meeting of the Conciliation and Arbitration Council, a scheme in which the GRA and other representative associations of gardaí participated along with “official side” representatives. The proposed sick pay reform was raised but not pursued.

7. In the meantime the proposal for revised sick pay arrangements had been referred to the Labour Court in the context of a dispute between DPER and the Public Services Committee of ICTU. On the 19th July, 2012, the Labour Court issued a recommendation in relation to sick pay reform and recommended that it take effect on the 1st January, 2014. This recommendation (LCR 20335) contains specific recommendations on new provisions for public service sick pay. It also recommended that it “should be of general application to all categories of public servants associated with this referral”, but that in certain schools and colleges grades there should be further consultative meetings under the auspices of the Department of Education and Skills. It is common case that the gardaí were not associated with the referral. Members of An Garda Síochána (AGS) are prohibited by Statute from being a member of any trade union (s. 13(3) of the Act of 1923, as amended). Hence GRA is prohibited from joining ICTU and did not participate through it in the overall negotiations and reference to Labour Court.

8. In November 2012, at a further meeting of the Conciliation Council, the proposals for sick pay reform, including the Labour Court recommendation was referred to “Partnership”. Partnership is a forum within An Garda Síochána with representatives of management and the Garda Staff Associations. In January 2013, a working group was established within Partnership. In May 2013, the Haddington Road Agreement was reached which included a review to commence in September 2013, and conclude by June 2014, of remuneration and conditions of service of members of An Garda Síochána.

9. In September 2013, a memorandum for Government was circulated in relation to a legislative basis for reform of sick pay arrangements across the public service. The respondent was to have statutory responsibility for all. This was available to GRA through the Partnership Working Group.

10. On the 8th November 2013, the Partnership Working Group issued its report. Further reference will be made to this below, its recommendation was in the following terms:-

      “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.”
11. The Partnership Working Group report was sent to DOJE on the 12th November, 2013 and by it to DPER on the 22nd November, 2013.

12. The initial reaction from DPER was an email of the 2nd December, 2013, to DOJE, the substance of which was transmitted in turn by an Assistant Commissioner to GRA and the other representative associations by email of the 3rd December, 2013. The decision of DPER transmitted by email to GRA was in the following terms:-

      “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.”

13. However, on the 5th December, as internal emails (only discovered in the course of the proceedings and admitted into evidence) disclose as a result of an intervention by Mr. Shay Coady, General Secretary of IMPACT and Chairman of the Public Services Committee of ICTU a decision was taken by the respondent Minister on the morning of the 5th December, that the new scheme should come into effect for all sectors of the public service including An Garda Síochána on the same date. On the evening of the 5th December, by email DOJE was informed by DPER of the:
      “Minister’s clear direction . . . that the new scheme should come into effect for all sectors of the public service (other than for the education sector where as previously agreed the implementation date would coincide with the school rather than the calendar year) on the same date and has requested . . . views on whether this should be the 1st January, as planned or a somewhat later date a couple of weeks thereafter (eg. the 31st January) to allow some time for reviewing the proposed Regulations and to address misconceptions regarding the new sick leave arrangements”.
14. Notwithstanding the transmission of the decision in the email of the 2nd December, to GRA and the other representative associations on 3rd December the subsequent decision of the respondent Minister to different effect was not transmitted to GRA at that time.

15. The respondent did state in the Dáil on the 12th December and in the Seanad on the 18th December, that all areas of the public service including An Garda Síochána would be covered by the new regulations in the first instance. Mr. Stone the deponent for GRA states he was not aware of these statements.

16. On the 19th December, 2013, by email from DOJE, Assistant Commissioner Fanning of An Garda Síochána was informed “as regards timing, the original proposal had been that the regulations would come into effect from the 1st January next, but with the Garda Síochána not included at first. Now, however there will be a delay with the Regulations probably coming into being for everyone around March/April”. On the same day there was a meeting of the Working Group at which GRA were represented and at which it is recorded that the email was read out. An extract from that email was sent by email on the following day inter alia to GRA.

17. On the 23rd December, 2013, a draft regulation which clearly indicated the inclusion of An Garda Síochána was sent by DPER via DOJE to Deputy Commissioner Fanning of AGS. There was no evidence before the court that the draft regulations were furnished to GRA at this time.

18. On the 24th December, 2013, the 2013 Act was enacted giving the respondent power to make sick pay regulations for the public service including AGS.

19. On the 21st January, 2014, a Partnership Working Group meeting was held at which draft regulations indicating the inclusion of An Garda Síochána in the regulations were given inter alia to GRA. There is no evidence of any representation made directly by GRA to the respondent following receipt of the draft regulations. There was correspondence between Deputy Commissioner Fanning and DOJE in relation to the exclusion in the draft regulations of occupational injuries schemes and the “injury on duty” scheme within An Garda Síochána. On the 30th January a letter written on behalf of the Garda Commissioner to the Secretary General of DOJE sought clarification as to the exclusion of An Garda Síochána from the draft regulations by reference to the email of the 3rd December, and also made certain specific submissions in relation to the content of the draft regulations.

20. GRA prepared a position paper dated the 4th February in relation to costs being considered by the Working Group in relation to absence for sickness. During February there were further meetings attended by GRA with the Secretary General of the Department of Justice and special meeting of the Commissioner’s Consultative Council held on the 19th February. On the 28th February there was a meeting between GRA and other Garda Síochána representative associations and officials from DOJE at the labour Relations Commission chaired by Mr. Mulvey as part of the Haddington Road Review of An Garda Síochána. At that meeting it was stated that sick pay would not be included in the Haddington Road Review. Further meetings were sought with DOJE and ultimately a meeting was arranged via DOJE with officials from DPER to be attended by GRA and the other An Garda Síochána representative associations. This took place on the 7th March and at the start of the meeting, the representative associations were informed that the Regulations had been signed on the previous day by the respondent and would come into effect on the 31st March, 2014. The Regulations as made were received by GRA on the 11th March, 2014.

High Court proceedings.
21. On the 31st March, 2014 leave to apply for judicial review was sought and granted ex parte by the High Court (Peart J.). Leave was also granted to issue a motion for interim relief and following a full interlocutory hearing an application for an injunction was refused by the High Court (Peart J.) on the 7th May, 2014.

22. The primary reliefs sought by GRA were declarations and an order of certiorari of the Regulations insofar as they applied to the members of An Garda Síochána. The injunction sought both by way of ultimate relief and on an interim basis was to restrain the respondent from implementing the terms of the regulations in respect of members of An Garda Síochána.

23. A notice of opposition was filed in April, 2014 and affidavits sworn on behalf of the respondent by Ms. McGirr of DPER, Mr. Eugene Banks of DOJE and an affidavit of Inspector Michael McNamara of the Human Resource Management Department of An Garda Síochána in response to the affidavit of Mr. Stone, the General Secretary of GRA. In those initial affidavits, no reference was made to the intervention of Mr. Shay Coady in relation to the change of approach to exclusion/inclusion of An Garda Síochána in the initial regulations between the email from DPER of the 2nd December and that of the evening of the 5th December, communicating the direction from the respondent that An Garda Síochána were to be included in the initial regulations. The change was explained by reference to consultation with the Chief Medical Officer in relation to the Partnership Working Group report.

24. In June 2014, the respondent agreed to give discovery. The discovery documents were furnished in July 2014. Those disclosed the intervention of Mr. Coady and communications between officials of DPER, Mr. Coady, the special adviser of the respondent and a meeting held by the respondent with officials of DPER on the morning of the 5th December, 2014. Further affidavits were sworn on behalf of GRA and leave was granted to amend the statement of grounds.

Judgment.
25. In the judgment delivered on the 17th October, 2014, Kearns P. summarised the grounds advanced on behalf of the applicants under five headings as follows:-

      (a) Legitimate expectations.

      (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 consideration enumerated therein?

      (e) The Regulations are themselves incoherent.

26. He held against the applicants on all grounds. The appellants have appealed his decision in relation to each ground and pursued all grounds in the written submissions. At the oral hearing, the primary grounds pursued related to the first two grounds which are to some extent interconnected.

Legitimate Expectation.
27. The appellants both before the President and on appeal before this Court emphasised that the claim made based upon legitimate expectation was not of an expectation of a substantive benefit, but rather an expectation, legitimately held to a procedure whereby no change would be made by way of delegated legislation to the sick leave scheme, heretofore enjoyed by An Garda Síochána without a consultation process having been concluded with was fair in the circumstances, adequate to the task in hand and reasonable in its terms. The appellants relied upon the characteristic set out at para. d(ix)(a) to (d) of the statement of grounds indicating the essential elements of such a consultation process.

28. The trial judge in considering the claim based on a legitimate expectation relied upon the essential prerequisites for such a claim as set out by Fennelly J. in Glencar Exploration plc and Others v. County Council of County Mayo [2002] 1 IR 84 at p. 162:

      “In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to me to be necessary to establish three matters. Because of the essentially provisional nature of these remarks, I would emphasise that these propositions cannot be regarded as definitive. Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. Refinements or extensions of these propositions are obviously possible. Equally, they are qualified by considerations of the public interest including the principle that freedom to exercise properly a statutory power is to be respected. However, the propositions I have endeavoured to formulate seem to me to be preconditions for the right to invoke the doctrine.”
29. Applying the principles set out therein to the facts before him, Kearns P. firstly decided that the applicants failed to establish that the respondent had made a statement or representation expressed or implied as to consultation process which went beyond that which GRA did in fact have in the process leading to the making of the regulations.

30. The appellants do not dispute the applicability of the principles set out in Glencar, but submit that the trial judge either failed to understand the nature of the promise or representation for which they were contending or that that they failed to identify a relevant promise or representation. The appellants, in relation to a legitimate expectation rely in part upon what they contend was the legal duty of the respondent to consult and in part on the representations allegedly made by the procedures adopted particularly in relation to civil servants represented by unions forming part of ICTU.

31. 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. It is important to recall that the claim is against the Minister for Public Expenditure and Reform who is a corporation sole and a distinct person in law from the Minister for Justice and Equality. The claim based upon legitimate expectation to a consultation process with the characteristics identified in the statement of grounds to be successful would have to establish a promise or representation by word or act from the respondent Minister that such a procedure would be followed prior to making the regulations.

32. Reliance was placed upon the fact that the respondent had, through his department engaged in a consultation process with ICTU in relation to changes to sick pay for other sectors of the public service and agreed to a referral to the Labour Court and followed its recommendation. It was submitted that the respondent by following this approach gave the GRA as representative of members of AGS a representation that an analogous consultation procedure in relation to the detail of changes to the then existing sick pay entitlements of AGS would be followed prior to the making of any regulations with new sick pay conditions which applied to AGS. In particular it was submitted that there was a legitimate expectation of a consultation procedure to a conclusion in the Conciliation Council. I am not satisfied on the facts that GRA has established on the evidence put before the High Court a representation by or on behalf of the respondent that such a consultation procedure would be engaged in with GRA in the absence of the respondent being under a legal duty to engage in a consultation process with them.

33. Counsel for the appellants relied in part in his submission on legitimate expectation on what he contends was an obligation imposed by law on the respondent to consult with GRA prior to making the regulations as the regulations were intended to and did interfere with the existing conditions of employment of An Garda Síochána. Certain of the authorities relied upon do refer in considering the entitlement of a person who is to be adversely affected by a regulation or delegated legislation to consultation as being part of the doctrine of procedural legitimate expectation; see alia Sedley L.J. in R. v. Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240 at para. 43. However, that is not the sense in which the appellants made their claim based upon legitimate expectation and any expectation which they may have by reason of the obligations imposed on the respondent as a matter of law fall to be considered in the next part of their appeal.

Duty to consult and fair procedures
34. The appellants also submitted that the respondent was under a legal obligation to consult with GRA in advance of exercising the statutory powers conferred on him by s. 58B of the 2013 Act, independently of any legitimate expectation. They did so in reliance principally upon the judgment of Henchy J. in Burke v. The Minister for Labour [1979] I.R. 354 and the majority judgments in the UK Supreme Court and in particular that of Lord Sumption in Bank Mellat v. H.M. Treasury [2013] UKSC 39 and sought to distinguish the judgment of Carney J. in Gorman v. Minister of Environment [2001] 2 IR 414. They further submitted that the nature of the consultation must comply with the criteria set out by the English Court of Appeal in R. v. North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213, 2 WLR 622 at 661.

35. On behalf of the respondent it was submitted that the statutory power conferred on him by the 2013 Act was to make delegated legislation and in the particular circumstances of the Act in accordance with the judgment in Gorman he was not under an obligation to consult with the GRA.

36. The trial judge rejected the primary submission that the respondent was obliged to consult prior to making the submissions. Having referred to the relevant authorities, he summarised his reasons in the following three paragraphs:

      “78. 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.

      79. It follows a fortiori, that if a process of consultation is not mandated in the absence of that 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 [2000] 2 WLR 622, is imposed by way of restraint on the Minister.

      80. 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 - perhaps endlessly and without speedy conclusion - creating the kind of nightmare scenario which would have left the Government powerless to take the remedial action which the Government and its external masters of that time, the Troika, believed were necessary.”

37. The trial judge then continued by asking himself the question as to whether the fact that a consultation process was actually in train on the facts herein altered the situation and reached a negative conclusion.

38. Before this Court the appellants firstly submit that the trial judge was in error in determining that in accordance with the decided cases the respondent, on the facts herein, was not obliged to consult with GRA as one of four representative bodies of members of An Garda Síochána in advance of exercising the powers conferred on by the 2013 Act to change and effectively diminish the then existing entitlements of members of An Garda Síochána to sick pay. In essence their submission was that the statutory power conferred on the respondent was intended to and did enable him interfere with existing rights of members of An Garda Síochána under their terms and conditions of employment. As such it was submitted that on the authorities they fell within the principles applicable to the exercise of powers delegated by statute to a Minister or other body to adversely affect the rights of identified person and as such had an entitlement to be consulted. They further submitted that obligation imposed on the respondent had not been fulfilled. They submitted that there was no evidence that the respondent had considered the terms of the Partnership Working Group report prior to the decision taken by the Minister on the 5th December, 2013, to include An Garda Síochána in the Regulations from the outset or before the making of the Regulations.

39. The respondent in submissions seeks to uphold the decision of the High Court upon the same potentially alternative grounds as outlined above.

Discussion
40. The power to make the Regulations was conferred on the respondent by s. 58B of the 2013 Act and is contained in Part 7A of that Act. Section 58B provides:-

      “58B(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,


      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.

      (5) Regulations under subsection (1) may provide in exceptional cases (that is to say cases defined in the regulations by reference to the serious nature of an illness or injury that has occasioned a relevant person’s being on sick leave (which may extend, if the Minister considers appropriate, to the circumstances involving a period of the person’s rehabilitation following an illness or injury of that nature)) and notwithstanding the provision otherwise made by the regulations, for all or any of the following:


        (a) that there may be paid to the person remuneration, in respect of the time of his or her sick leave, for a period longer than would otherwise be the case under the regulations;

        (b) that there may be paid to the person remuneration, in respect of a particular period of the time of his or her sick leave, of an amount that is greater than the percentage (of the whole amount referred to in subsection (1)(a)) specified in the regulations under subsection (1)(b) or (c);

        (c) that the provisions of the regulations shall operate subject to such other modifications as the Minister determines and specifies in the regulations, which may include provision -

            (i) limiting the total period in respect of which, in a foregoing case, remuneration may be paid to a relevant person, or

            (ii) conferring a power on a person specified in the regulations to determine, in a foregoing case, that after the lapse of a particular period of the time of a relevant person’s sick leave, no further remuneration shall be paid in respect thereof.

      (6) Regulations under this section -

        (a) may contain such incidental, supplementary or consequential provisions as the Minister considers appropriate, including provisions delegating to the public service body concerned the determination of any matter in respect of which the regulations provide that a determination shall be made, in particular a determination -
            (i) as to whether an illness or injury is of a serious nature,

            (ii) as to what is an appropriate period of rehabilitation in the circumstances concerned, and

            (iii) as to what is satisfactory certification, in writing, by a medical practitioner of any relevant matter; and

      (b) may -
            (i) if the regulations apply in respect of more than one class of public servant, make different provision for the different classes of public servant to which the regulations apply, and

            (ii) otherwise make different provision for different classes of case.

      (7) Where, before the commencement of section 7 of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013, a period of sick leave, on a relevant person’s part, has begun and continues after the commencement of that section, the arrangements that were in existence before the commencement of that section in respect of the payment of remuneration to that person during his or her sick leave shall continue to apply in respect of so much of that period of sick leave as falls after that commencement and regulations under this section shall not apply to that person until such time as he or she is able again to attend to his or her duties.

      (8) For the avoidance of doubt, nothing in this section prejudices the operation of the Social Welfare Acts or instruments made thereunder.

      (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.”

41. “A relevant person” is defined in s. 58A as a “public servant falling within a class of public servants specified in the regulations concerned”. A public servant includes a holder of a position in An Garda Síochána.

42. As appears the respondent is given certain directions by subs. (1) as to the remuneration to be provided in the Regulations by subs. (1) and further directions in subs. (2) and (3). The respondent was obliged in making the Regulations to have regard to the matters set out in subs. (4)(a) to (e) inclusive “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”. Further, the respondent was expressly given a discretion pursuant to subs. (6)(b) if the Regulations were to apply in respect of more than one class of public servant to "make different provision for the different classes of public servant to which the Regulations apply, and" also to, "make different provision for different classes of case”.

43. In considering the relevant statutory provisions it is necessary also to have regard to s. 58C which provides:-

      “58C. This Part has effect notwithstanding -

        (a) any provision made by or under -
            (i) any other Act,

            (ii) any statute or other document to like effect of a university or other third level institution,

            (iii) any circular or instrument or other document,

            (iv) any written agreement or contractual arrangement,

        Or

        (b) any verbal agreement, arrangement or understanding or any expectation.”

44. Section 58C was relied upon by the respondent in relation to the claim based upon legitimate expectation, but is also relevant to a consideration of the powers being conferred by the Oireachtas on the respondent pursuant to section 58B. The powers being conferred were intended to and did give the Minister power by regulation to impose new terms and conditions in relation to payment during periods of absence due to sickness for public servants notwithstanding, inter alia, any contractual arrangement or any other arrangement understanding or expectation. This section evidences an awareness by the Oireachtas that any regulation to be made by the respondent may interfere with existing conditions of employment pursuant to one or other of the matters cited in section 58C.

45. What then are the obligations imposed on the Minister in exercising the powers delegated to him by s. 58B? A good starting point the well known and oft cited passage from the judgment of the Supreme Court delivered by Walsh J. in East Donegal Cooperative Limited v. Attorney General [1970] I.R. 317 at 341:-

      “. . . the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
46. The respondent must exercise his power to make the regulations, which included discretions, in accordance with constitutional justice and within the framework of the terms and objects of the 2013 Act. That is not in dispute. The real question is whether that requires the respondent to consult with persons likely to be adversely affected by any proposed regulations prior to making same. In so contending the appellants rely upon Burke v. The Minister for Labour [1979] I.R. 354, where the Supreme Court were considering an appeal from the High Court dismissing the plaintiff’s claim that an Order of 1978 made by the Labour Court following a procedure initiated by a joint Labour Committee was invalid and ultra vires the Labour Court as the procedure pursuant to which it was made lacked a fairness. Henchy J. who delivered the lead judgment with which the other members of the court agreed having observed the extensive nature of the delegated power vested in the Committee (before whom the unfairness was alleged to have occurred) stated at p. 361:-
      “Where Parliament has delegated functions of that nature, it is to be necessarily inferred as part of the legislative intention that the body which makes the orders will exercise its functions, not only with constitutional propriety and due regard to natural justice, but also within the framework of the terms and objects of the relevant Act and with basic fairness, reasonableness and good faith. The absoluteness of the delegation is susceptible of unjust and tyrannous abuse unless its operation is thus confined; so it is entirely proper to ascribe to the Oireachtas (being the Parliament of a State which is constitutionally bound to protect, by its laws, its citizens from unjust attack) an intention that the delegated functions must be exercised within those limitations.”
47. It is important to note that what is said relates to “delegated functions of that nature” i.e. those conferred on the Committee. Those functions were effectively to propose to the Labour Court (who could only refer back but not change) orders fixing minimum wages in different sectors. Both employees and employers were represented on the Committee. The relevant order was proposed and made without a consideration of material which the employers wanted considered and which the Court considered was crucially relevant to the question of minimum rates of remuneration.

48. Counsel for the respondent did not dispute that where what is delegated by an Act of the Oireachtas is in substance an administrative decision (as in the case of the grant or removal of licences) or the power to make an order, albeit in the form of statutory instrument, which is intended to affect a targeted individual or group of individuals such as in the case of Bank Mellat or Burke that the principles of constitutional justice may include, depending on all the circumstances of the case a right to be informed of the proposal and given an opportunity to make submissions and in effect be heard in advance of a decision being taken. However, she submits that the respondent in making the regulations at issue in these proceedings was not taking an administrative decision in relation to specified persons but rather was making delegated legislation which applies generally albeit to identified classes of persons and required policy decisions to which the principles identified by Carney J. in Gorman apply.

49. Counsel for the appellants in turn does not dispute that if the power conferred on the respondent by s. 58B of the 2013 Act, is truly a power to make delegated legislation which is of general application that the applicable principles of constitutional justice do not impose an obligation to consult with persons who may be adversely affected by the delegated legislation. The decision of O'Sullivan J. in the High Court in Cross River Ferries Limited v. Port of Cork Company (Unreported, High Court, 6th May, 1999) is said to be one such example. He also submits that the finding as to the general effect of the regulations in Gorman was at the heart of the judgment of Carney J. in that case and seeks to distinguish the present regulations as being ones which are not of general application but rather targeted at specified groups of individuals with whom it was feasible to consult.

50. In Gorman at issue were the Road Traffic (Public Service Vehicles) (Amendment) (No. 3) Regulations 2000 (S.I. No. 367/2000). The regulations in substance provided for deregulation of the former taxi licensing regime and the revocation of earlier regulations including regulations which had been declared invalid by the High Court and were under appeal to the Supreme Court. It was not in dispute that the probable effect of the regulations was to reduce the value of the licences already held. The applicants were thus potentially adversely affected by the regulations. Carney J. concluded that the powers being exercised by the Minister under the Act of 1961 were legislative in nature; that in making regulations to deregulate the taxi industry the Minister was engaged in a legislative process albeit delegated legislation. The Regulation had general application and although the interests of the taxi drivers were significant the category of interested persons was unlimited. In such circumstances he held that the imposition of a duty to consult would make the legislative process unworkable and that there was no obligation to consult holders of taxi licences or their representative body prior to making the regulations.

51. Carney J. in the course of his decision considered the English decisions in Bates v. Lord Hailsham [1972] 1 WLR 1373, which in turn referred to Reg. v. Liverpool Corporation ex parte Taxi Fleet [1972] 2 QB 299, which support the proposition that an obligation to consult does not arise (absent a legitimate expectation) where what is being exercised pursuant to statute is a legislative function as distinct from an administrative or executive function.

52. Whist some caution must be exercised in considering the English authorities by reason of the absence of obligations imposed in accordance with constitutional principles nevertheless they are of assistance to identifying the circumstances in which a duty to consult prior to exercising a power delegated by legislation will or will not be imposed. The judgments in the English Supreme Court in Bank Mellat relied upon by the appellants are of assistance and in particular the analysis of Lord Sumption JSC.

53. In considering the judgments in both jurisdictions it appears to me whether one is considering the constraints of what has been referred to in the UK as “modern public law” derived from common law principles or the obligations in this jurisdiction derived from the constitutional presumptions in relation to the manner in which the Oireachtas intend statutory powers to be exercised, the following principles may be derived. Where the challenged decision is in the form of a statutory instrument “what is important is not its form but its nature”. As is clear from Irish cases such as East Donegal and Burke where the power delegated is essentially administrative, intended to be exercised in relation to identified individuals the principles of constitutional justice may include fair procedures and a right to be consulted or heard prior to the decision being made. However where the power given is a delegated legislative power no such duty to consult or give persons an opportunity to be heard may arise. In an English context Lord Sumption explained the distinction succinctly in Bank Mellat in the following terms at para. 46:

      “There is a difference between the sovereign’s legislation and his commands. The one speaks generally and impersonally, the other specifically and to nominate persons."
On the facts of that case he then stated:
      “The Treasury direction in this case [designating Bank Mellat under Schedule 7 to the Counter-Terrorism Act 2008] was a command. The relevant legislation and the whole legislative policy on which it was based, was contained in the Act itself. The direction, although made by statutory instrument, involved the application of a discretionary legislative power to Bank Mellat and IRISL and nothing else. It was as good an example as one could find of a measure targeted against identifiable individuals.”
In those circumstances Lord Sumption and the majority in the UK Supreme Court concluded that procedural fairness required Bank Mellat to be notified in advance of the proposed direction and given an opportunity to be heard.

54. Accordingly, where what is delegated by an Act of the Oireachtas to be implemented by the making of a regulation or statutory instrument is in truth part of the legislative process albeit a delegated legislative power and involves a minister or other delegated body making regulations intended to be of general application then there is not a duty to consult. If it were otherwise it would fetter the entitlement of the executive to implement policies determined by the Oireachtas and insofar as Article 15.2 permits the ability of a minister to make implementing policy decisions and exercise discretions conferred by the legislation.

55. However at the other end of the scale where what is conferred is in substance statutory power to take administrative decisions pursuant to the exercise of a discretion conferred by statute in relation to identified individuals the same constraints do not apply and an obligation to consult or afford an identified party a hearing may well form part of the principles of constitutional justice according to which the delegated power may be exercised. The extent of the obligation will depend on the individual facts and circumstances.

56. The difficult question on the facts of this appeal is on which side of the line does the power conferred on the respondent by s. 58B of the 2013 Act fall. It is a power to make regulations which involves taking policy decisions; the regulations potentially apply to broad but specified categories of persons and are intended to alter existing conditions of employment.

Conclusion on duty to consult.
57. I have concluded from a consideration of the provisions of s. 58B of the 2013 Act, and the nature of the power delegated to the respondent thereunder that in making the regulations he was exercising what is truly a delegated legislative power. In reaching this conclusion, I accept the submission made on behalf of the appellants that the power delegated by s. 58B could only be exercised in relation to certain classes of persons namely, public servants as defined. However, public servants as defined include very broad categories and numerous persons.

58. I have also taken into account that the Oireachtas clearly envisaged in the power given to the Minister (by reason of s. 58C) that regulations to be made thereunder would alter and (consistent with the purpose of the Act and the matters to which he had to have regard pursuant to s. 58B(4)) are intended to diminish the then current entitlement of public servants to sick pay.

59. However, the decisions delegated to the respondent by sub-ss. (1), (2), (5) and (6) of s. 58B and the matters to which he must have regard in subs. (4) require the respondent to make decisions which are essentially policy decisions. He is of course bound by the general policy of the 2013 Act. Nevertheless s.58B requires the respondent to balance the financial situation and constraints on the State referred to in sub-s(4)(a),(b),and (c) with the need to protect the health of public servants (e) and the desirability of there being a measure of provision, for making payments to public servants who are unable to attend to their duties due to illness or injury. The decision as to how to balance these competing matters primarily involves policy considerations. It is also relevant that the Regulations alone do not determine the actual sick pay to be made to any individual. They do of course determine by what criteria the individual administrative decisions are to be reached by the relevant public service body. However subs. (5) and (6) authorise the respondent to leave certain decisions to the relevant public service body.

60. Finally there is the question, also addressed by the trial judge as to whether the fact that the respondent consulted with and pursued a negotiation process to an outcome determined by the Labour Court in respect of those public servants represented by ICTU affects the obligation to consult with GRA as representative of members of An Garda Síochána who are prohibited by statute from participating in that process. Absent a legitimate expectation it does not seem to me that it can do so. The court is only concerned with the obligations imposed by law on the respondent to consult. He had of course other considerations, including industrial relations issues, which he properly took into account.

61. It is perhaps understandable that GRA feel aggrieved at what they perceive as an unfair and different process which applied to them. However, as noted by the trial judge, they were clearly on notice since 2012 of an intention to introduce public service wide sick pay reforms; they were informed of the recommendation of the Labour Court and specifically of a recommendation that regulations be introduced from January 2014, across the public service generally. There was the undoubted complication that GRA were operating within procedures established by DOJE and not DPER until the end of 2013. The failure, following the communication on 5th December to expressly and immediately communicate the change of intention to include AGS in the initial regulations to GRA in the light of the earlier communications is difficult to understand in a context of good industrial relations. Notwithstanding, the Working Group report had been sent to DPER. At the latest in January 2014, draft regulations expressly including An Garda Síochána were given to GRA. There is no evidence of submissions made by it to the respondent in the months of January or February in relation to such draft regulations and their impact on An Garda Síochána. The regulations were not made until 6th March 2014.

62. Accordingly, I have concluded the trial judge was correct in dismissing the claims made by the appellants that the Regulations were ultra vires the Minister by reason either of a breach of their legitimate expectation to a further consultation process or by reason of a failure in a duty to consult imposed by law prior to the making of the Regulations.

Relevant/irrelevant considerations.
63. I am of the view that the trial judge was correct in his determination of these issues. I share his view that no criticism can be made of Mr. Coady for making the intervention he did. It was an intervention prior to the coming into effect of the 2013 Act. In my view the trial judge was correct in refusing the relief sought that the Regulations were invalid by reason of such intervention. It follows, from the conclusion which I have reached that the respondent Minister in making the Regulations was exercising a delegated legislative power that he is not prohibited from receiving and taking into account submissions from an interested party. Such submissions form part of the political legislative process. Whilst s. 58B(4) imposed obligations on the Minister in relation to what he must have regard to prior to making the regulations that in my view, did not preclude the Minister from having regard to other matters which may objectively be considered relevant to the regulations which he was proposing to make. The acceptability or otherwise of the terms of the proposed regulations to a significant sector of the public service represented by Mr Coady could not be considered an irrelevant consideration.

Section 58B(4).
64. The trial judge considered in some detail the alleged failure of the Minister to have regard to the need to protect the health of members of An Garda Síochána pursuant to his obligations under section 58B(4)(e). I am of the view that he was correct for the reasons he sets out that the appellants did not establish any failure by the Minister in relation to such obligations such as to render the making of the regulations with the inclusion of An Garda Síochána ultra vires the Minister.

Articles 9 and 10 of the Regulations.
65. The appellants submit that the provisions of Regulations 9 and 10 of the 2010 Regulations are legally incoherent, internally inconsistent and incapable for rational application. It is not in dispute that the terms of these two provisions lack some clarity. For the reasons identified by the trial judge, the individual applicant Ms. Bourke has not made any claim for relief in her particular circumstances based upon any lack of clarity or alleged incoherence in the terms of these provisions.

66. The GRA in submission on appeal contend that they are entitled to clarity and to be able to advise their members as to the meaning of the provisions and indicated that they are seeking a declaration to that effect. I do not consider that a lack of clarity, which I accept, in these provisions is a ground upon which the court should declare the regulations in their entirety invalid or ultra vires the respondent or make any declaration as to the entitlement of GRA to clarity in relation to the regulations. The lack of clarity may ground a claim by an individual prejudiced thereby and this judgment would not preclude any such claim.

Decision on Appeal
67. Accordingly, I would dismiss the appeal.

Cross appeal.
68. I would also dismiss the cross appeal in relation to the decision of the trial judge on the costs of the application. Notwithstanding that the applicants failed in their application before the High Court, costs were awarded in their favour. He did so by reason of the failure of the respondent at the outset of the judicial review proceedings to put before the court all factual matters relevant to the issues in the proceedings. In the initial replying affidavit no reference was made to the intervention of Mr. Coady or to the emails exchanged within DPER on the 4th and 5th December. Those facts only came to light late in the day on the production of discovery. Kearns P. took the view that those matters were relevant to the issues in the proceedings and in particular to the decision taken by the respondent on the 5th December, to include An Garda Síochána in the initial regulations. The trial judge was on the facts entitled to exercise his discretion in the manner he did. The respondent was obliged to give to the Court a complete picture of any relevant factual matter. No explanation has been sought or given for the initial failure to disclose. Nevertheless objectively in my view it was open to the trial judge to exercise his discretion on costs in the manner he did for the reasons he gave.


JUDGMENT of Mr. Justice Gerard Hogan delivered on the 2nd day of February 2016

1. Where a Minister promulgates generally applicable rules by way of statutory instrument is he or she obliged to consult in advance with the representative association of the group of individuals directly affected thereby? This is essentially the issue which arises in the present appeal from the decision of Kearns P. in the High Court: Garda Representative Association and Bourke v. Minister for Public Expenditure and Reform [2014] IEHC 457. It arises in the following way.

2. The first applicant Garda Representative Association (“GRA”) is the representative body for the rank and file members of An Garda Síochána and the second applicant is a member of the Force. In these proceedings the applicants seek to challenge the validity of the Public Service Management (Sick Leave) Regulations 2014 (S.I. No. 124 of 2014) (“the 2014 Regulations”) on several grounds which are principally related to the manner in which the 2014 Regulations were adopted. It is not disputed that the 2014 Regulations significantly curtail the pre-existing entitlements of Garda members to sick pay remuneration. The cost of sick pay provision within the public service has been a matter of concern to the Government for some time. These concerns have become especially acute within the last number of years given the very difficult economic circumstances and the range of many unpopular and painful measures which the Government and the Oireachtas have felt obliged to adopt in order to bring the public finances back into a state of equilibrium. The Government had estimated that the sick pay costs within the wider public service were in the order of some €500m., of which some €27m. relates to sick pay within An Garda Síochána. The Government considered that measures were urgently required to reduce these costs. It is only fair to record that these estimates have been disputed, not least by the GRA. It also complained that the Government’s concerns failed to have sufficient regard to the unique nature of police work, as distinct from other sectors of the public service. The GRA also pointed out that this estimated figure includes payments in relation to occupational injuries, which in the nature of things are likely to be higher for members of An Garda Síochána.

3. A formal review of the costs of sick pay within the public service was initiated by the Government in May 2012. This was obviously a matter of concern to the first applicant, the Garda Representative Association (“the GRA”) which is the representative body for the rank and file members of An Garda Siochána. It is clear that any changes to this sick pay regime would have implication for the terms and conditions of members of the Force and it is a matter in which the GRA could appropriately take a keen interest.

4. The GRA was, of course, fully aware of the nature of the review that was being undertaken at that time, but it was precluded by the terms of the Garda Siochána Acts from participating in that review. There were, however, detailed negotiations with the Irish Congress of Trade Unions which had involved two references to the Labour Court.

5. So far as An Garda Siochána were considered, a briefing was held at the Department of Justice and Equality on 14th May 2012 with representatives of the first named applicant, the respondent, and the other Garda staff associations (namely the Association of Garda Sergeants and Inspectors, the Association of Garda Superintendents and the Association of Garda Chief Superintendents) in attendance. This meeting was said to be part of a consultative process with all staff associations in the public service in relation to proposals to change sick leave arrangements in the public sector.

6. The General Secretary of the GRA, Mr. Stone, stated that Mr. Eugene Banks, an officer in the Department of Justice and Equality assigned to the Garda Human Relations division, said at that meeting that this encounter was simply the start of the negotiation process with the Garda organisation and that the matter would likely be dealt with through the ‘Conciliation and Arbitration Scheme’. This formal non-statutory scheme was established on the 30th March, 2004 for the determination of claims and proposals relating to conditions of service of members of all ranks of An Garda Síochána. Part II of the scheme allows for the establishment of a Conciliation Council and sets out the matters appropriate for discussion by it. Mr. Banks accepts in his affidavit that he stated at the 14th May meeting that this was but the start of the negotiation process, but he also insisted that he made clear to all the Associations that the proposed changes would apply across the public sector generally. A senior official in the respondent Minister’s Department, Ms. McGirr, also stated in her evidence that it was made clear at this meeting that any derogation for a particular sector would have to be justified by objective reasons and that it was ultimately a decision for the respondent Minister.

7. The cost of the Garda sick pay scheme was made the subject of a Working Group which had been established by the Minister for Justice and Equality in July 2012. Following a series of elaborate consultations and meetings, matters came to a head in November and December 2013.

8. By November 2013 the enabling legislation, the Public Service Management (Recruitment and Appointments) (Amendment) Bill, 2013, was going through the legislative stages in Dáil Éireann. The Conciliation Council met again on the 7th November, 2013 and was informed that a report from the Working Group of An Garda Síochána in relation to the proposed alteration to sick leave arrangements was due to be finalised the following day, the 8th November, 2013. Mr. Banks states that at this meeting on the 7th November he stated that the Minister for Justice and Equality had no difficulty in supporting a request for a derogation from the new arrangements for An Garda Síochána, but that he also made clear that it was ultimately a decision for the respondent. The Working Group report was subsequently finalised and sent to the Minister for Justice and Equality by Assistant Commissioner Fanning, with the Commissioner’s approval, on the 11th November, 2013. This report made a number of submissions as to why it was believed that An Garda Síochána should receive a derogation from the proposed arrangements. The concluding recommendation of the report was 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.” (The Haddington Road Agreement is an agreement between the Government and the public sector trade unions whereby, in broad outline, existing pay and conditions of service will be maintained in return for industrial peace and labour flexibilities and efficiencies.)

9. The Working Group report also referred to what was described as the “dangerous and unpredictable nature of the daily duties engaged in by all members of An Garda Síochána” and highlighted that in the period 2010 to the date of the report some “648 members were forced into sickness absence due to the violent and confrontational nature of the policing duties performed”.

10. On the 3rd December, 2013 an email was sent to the applicant and the other Garda Staff Associations by Sergeant Shane O’Carroll of Garda Human Relations. The email indicated that the respondent Minister had decided that An Garda Síochána would not be included in the first instance in the new sick leave regulations. The information from the respondent Minister had been forwarded to Garda Management by the Department of Justice and Equality. The email continued thus:-

      “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 [An Garda Siochána] 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.” [Emphasis in original]

11. Mr. Banks maintained that An Garda Síochána were initially excluded on the strict condition that they, as a matter of urgency, develop their own new sick leave scheme with potential for significant savings. It is nevertheless common case that by early December 2013 the respondent Minister had agreed to the exclusion of the Gardaí from the terms of the 2013 Bill in the expectation that further discussions would take place in the early part of 2014. It was anticipated that the GRA would be given the opportunity to advance fresh cost saving proposals which would take account - as the GRA saw it - of the special position of the members of An Garda Siochána with regard to sick pay. In effect, the GRA took the view that Gardai were exposed to occupational hazards in the course of their employment which made them a special case from a sick pay point of view.

12. It is not now in dispute but that on 3rd December 2013 the respondent Minister suddenly changed his mind and decided that both the new legislation and the regulations to be made there under would apply to the Gardai with immediate effect. While the GRA were unaware of this at the time, it subsequently emerged from the discovery documentation furnished by the respondent Minister in these proceedings that the real reason for this volte face was that the General Secretary of the public sector trade union IMPACT, Mr. Shay Cody, rang the respondent Minister’s office on 3rd December 2013 in order to make it clear that the public sector trade unions could not accept a special exemption or derogation for the Gardai and that if such arrangement were to persist, he would have to consider balloting his members for industrial action. It is clear - and not disputed for the purposes of this appeal - that from that point onwards the die was cast and the respondent Minister had determined that the 2014 Regulations would apply from the outset to An Garda Siochána as well as to other members of the public sector.

13. On the 12th December 2013 the respondent Minister participated in a public debate on the regulations in Dáil Éireann and stated that An Garda Síochána would be included. On the 18th December similar remarks were made by the respondent when addressing Seanad Éireann. All public sector departments, including Department of Justice, were advised by email dated the 17th December that the scheme would not commence as planned on the 1st January, 2014 but would likely commence in early March, 2014.

14. It is not clear when exactly the GRA were ever told in terms of this Ministerial change of heart, although An Garda Síochána were informed of this by letter from the respondent Minister on 19th December 2013 and it seems that the Working Group (on which the GRA were represented) were informed of this on the following day, 20th December 2013 It seems obvious, however, that they were not informed of the real reason for this volte face until that emerged from the discovery document furnished by the respondent Minister in the course of these proceedings.

15. Ms. McGirr states that a number of emails in January and February 2014 from the respondent Minister to the Department of Justice indicated that the draft regulations which had been circulated to all public sector departments were well advanced and that An Garda Síochána would be included. She says that this position was “crystal clear” when the applicant met with the Consultative Council in February 2014.

16. For his part Mr. Stone stated that the Working Group continued to meet throughout January 2014 and the GRA itself prepared a position paper dated the 4th February, 2014 highlighting a number of inaccuracies and peculiarities in relation to the position of sick leave for Gardaí vis-à-vis other public service workers. The Working Group continued to meet and to correspond with the Garda Commissioner in relation to concerns that the Gardaí would be included in the new Regulations. All of this took place in circumstances where the participants were apparently unaware of the decision which had had been taken or, for that matter, the Minister’s comments in both the Dáil and Seanad just a few weeks earlier.

17. It appears that the 28th February, 2014 a meeting chaired by Mr. Kieran Mulvey, the Chairman of the Labour Relations Commission, between the Garda Associations and Department of Justice officials took place at the Labour Relations Commission as part of the Haddington Road review. After this meeting the Garda Associations sought a meeting with officials in the Department of Justice in relation to the new public service regulations and the inappropriateness of An Garda Síochána being included in these Regulations. A meeting was subsequently arranged for the 7th March, 2014 with officials from the respondent Minister’s office also being present. Mr. Stone says that moments after this meeting commenced an official from the respondent Minister’s office informed those present that the respondent Minister had already signed the 2014 Regulations and An Garda Síochána had been included within their scope. He maintained that this development came as a great surprise to the GRA. The present proceedings were commenced shortly thereafter.

Legislative Framework
18. The 2014 Regulations came into force on the 31st March, 2014. They were made by the respondent Minister in the exercise of the powers conferred on him by the Public Service Management (Recruitment and Appointments) Act 2004 (“the 2004 Act”) as inserted by s. 7 of the 2013 Act.

19. Part 7 of the 2013 Act deals with sick leave remuneration and inserts sections 58A, 58B and 58C into the 2004 Act. Section 58A defines the term “public service body” as including, inter alia, the Civil Service, the Health Service Executive, and An Garda Síochána. Section 58B confers a power on the Minister to make regulations in relation to sick pay.

20. Section 58B (4) sets out the matters the Minister shall have regard to in making regulations as follows:

      "(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, 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.”

21. Section 58B (7) provides for transitional arrangements as follows -
      “Where, before the commencement of section 7 of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013, a period of sick leave, on a relevant person’s part, has begun and continues after the commencement of that section, the arrangements that were in existence before the commencement of that section in respect of the payment of remuneration to that person during his or her sick leave shall continue to apply in respect of so much of that period of sick leave as falls after that commencement and regulations under this section shall not apply to that person until such time as he or she is able again to attend to his or her duties.”
22. Section 58C also provides:
      “This Part has effect notwithstanding:-

        (a) any provision made by or under:-
            (i) any other Act,

            (ii) any statute or other document to like effect of a university or other third level institution,

            (iii) any circular or instrument or other document,

            (iv) any written agreement or contractual arrangement,

        or

        (b) any verbal agreement, arrangement or understanding or any expectation.”

23. Part 3 of the 2014 Regulations includes Articles 7-10 and deals with “Sick Leave Remuneration Generally”. Article 9 sets out the amounts and rates of sick leave remuneration and provides as follows-
        "9(1) This Regulation is subject to Regulation 10.
            (2) Sick leave remuneration at the full rate may be paid in a given instance if, in the 12 months preceding the first day of the relevant person’s current period of sick leave (the “12 month reference period”), the period of sick leave, remunerated at the full rate, has not exceeded 92 days.

            (3) Subject to paragraph (4), sick leave remuneration at the half rate may be paid in respect of any period of sick leave, in the 12 month reference period, following on, or occurring after, the period of 92 days sick leave referred to in paragraph (2).

            (4) Payment of sick leave remuneration at the half rate shall be limited to 91 days of sick leave.

            (5) Save as provided in the preceding paragraphs (and unless a decision to grant temporary rehabilitation remuneration is made or Part 4 or 6 applies), no sick leave remuneration shall be paid in the 12 month reference period.”

24. Article 10 sets out the maximum period of paid sick leave with a four year “look back” period:
      "10. Notwithstanding anything in Regulation 9, but subject to Parts 4, 5 and 6, if, in the period of 4 years preceding the first day of the relevant person’s current period of sick leave, there has occurred a period of sick leave that is in excess of 183 days (being a period of 183 days in respect of which remuneration at the full rate or the half rate has been paid) no sick leave remuneration shall be paid in respect of that part of that sick leave that exceeds 183 days.”
25. At the heart of the GRA’s case is that the 2014 Regulations were ultra vires the respondent Minister insofar as he made the decision to include An Garda Siochána in the new sick pay regime while the promised consultations were still outstanding. It is perhaps important to record that no challenge to the constitutionality of the Regulations or, for that matter, to the 2013 Act was raised.

26. In the High Court Kearns P. rejected all the arguments which had been advanced by the applicants. Dealing with the issue of legitimate expectations, Kearns P. found that no formal promise of consultation had been made to the applicants either expressly or by reference to a sequence of events:-

      “The applicants were informed as far back as May 2012 of the respondent’s intentions to adopt a sick pay scheme across the public sector which would include members of An Garda Síochána. I am satisfied that the email of the 3rd December, 2013 at most gave an indication that there might be some postponement in relation to the reform of An Garda Síochána sick pay until the end of March. However, within two days the Minister had confirmed his intention to include An Garda Síochána in any reform and that such reform would take effect by the end of March. This was communicated to the Garda Commissioner on the 19th December, 2013 and also in statements made in the Dáil and Seanad by the Minister at that time when it was specifically indicated that An Garda Síochána would be included in the application of the Regulations. The communication of December 19th was subsequently read out at a meeting of the Working Group, the report of which, it should be noted, lodged as it was with the respondent on the 22nd November, 2013, contained no reference to any representation that An Garda Síochána would be excluded from the Regulations. Thereafter the Regulations were circulated to all the Garda associations in January 2014, so that, apart from the single email of the 3rd December, 2013 the applicant’s contentions are singularly lacking in support from the narrative of contemporaneous events. Still less can the applicants point to any documentation or meeting where a particular form of consultation was promised by or on behalf of the respondent. Nor can the applicants point to any detriment suffered by them or any action taken by them on foot of some supposed representation.”
27. Kearns P. further considered that even if he was wrong on point, he concluded nonetheless that “any expectation harboured by the applicants was liable to be disappointed in the public interest in view of the financial circumstances of the State, a backdrop against which all of these negotiations were taking place.” He also noted that, in any event, any expectation which the applicants may have had was expressly excluded by Part 7A of the Act of 2013 whereby s.58C expressly provides that that part of the Act: “… has effect notwithstanding … any verbal agreement, arrangement or understanding or any expectation.”

28. So far as the fair procedures argument was concerned, Kearns P. stressed that the legislation was perfectly general in its terms. The consultation obligations which might well apply to “in the context of a targeted decision which affects a relatively small category of persons” did not apply in the case of generally applicable legislation:-

      “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 - perhaps endlessly and without speedy conclusion - creating the kind of nightmare scenario which would have left the Government powerless to take the remedial action which the Government and its external masters of that time, the Troika, believed were necessary.”
29. Nor did Kearns P. consider that the situation was altered by the fact that a consultation process was already in train at the time the decision was taken:-
      “Nonetheless, does the fact that a consultation process was actually in train alter the situation in this case? The case advanced on behalf of the applicants has shifted and has now resolved itself into a contention that, once there was a process in being, as undoubtedly was the situation in the instant case, the applicants were entitled to expect that that process would continue to a conclusion, presumably one satisfactory to their members, before the Minister was free to introduce the regulations in question. I cannot accept this proposition when the views of the applicants had been articulated through various mediation and conciliation mechanisms from the summer of 2012 onwards and when the report of the Working Group dealing with the issue had been submitted to the respondent at the end of November, 2013. As already indicated, the report in itself was a means of consultation and communication and the evidence before the Court is that the Minister was briefed on its contents. If the applicants’ submissions were to be correct, a process of consultation, which might have had the effect of unravelling the process across the entire public service, should have continued until the demands of the applicants, either to be altogether excluded from the process, or to receive special differentiated treatment, were realised. Such a fetter on the power of the Minister in the particular context and circumstances cannot, in the Court’s view, be justified. Any such conclusion would be tantamount to fettering the Minister’s power and duty to legislate in particularly difficult circumstances and could further be seen as a breach of the principles of separation of powers enumerated in Article 6 of the Constitution”
30. The President also rejected the argument that the Minister acted on the basis of irrelevant considerations by having regard to the intervention made by Mr. Shay Cody who made it clear to the Minister that the entire process of negotiating the sick pay scheme across the public sector would “unravel” if An Garda Síochána were treated as a special case. Kearns P. noted that:-
      “The Court is satisfied that in any democracy it is to be expected that a person such as Mr. Cody, charged as he is with obligations to represent the interests of his members, will communicate his concerns at a political level and the respondent is certainly entitled to take them into account, particularly if one consequence of treating An Garda Síochána differently would have been to unravel the entire process. Even if that was the most significant element going to the Minister’s decision, the Court would still be of the view that any derogation or ‘special treatment plan’ which could have collapsed the negotiation process across the public unions was a very relevant and proper matter for the Minister to take into account. One can readily imagine the consequences if he had ignored these communications and ploughed on regardless when other public service groups were seeking similar preferential treatment.”
31. The President further rejected arguments based on the supposed incoherence of the Regulations. The applicants have now appealed to this Court against the entirety of the President’s judgment and order (save for the order as to costs)

The basis for the GRA’s objections
32. In its own way this appeal brings into sharp focus the difference between the judicial function and that the rather different roles performed by the two branches of government which are democratically accountable, namely, the Oireachtas and the Government. The GRA’s case rests in large part on the fact that the Minister had given the impression that An Garda Síochána would not be initially included within the new sick pay regime which was about to be applied to other members of the public service. While these negotiations were on-going, the Minister’s office was contacted by Mr. Shay Cody, the General Secretary of the IMPACT trade union who informed the Minister’s advisers that his members would not be prepared to accept an adverse change in their sick pay entitlements if a special exemption was granted - even on a temporary basis - to An Garda Síochána. The prospect of industrial action loomed.

33. Faced with what he must have regarded as this unappealing prospect, the Minister unilaterally resiled from the tacit commitment he had given to the GRA in particular and to the members of An Garda Siochána in general that the new sick pay regime would not initially apply to members of the Force. The Oireachtas enacted the 2013 Act which came into force on 24th December 2013 and the Minister subsequently promulgated the 2014 Regulations on 7th March 2014. The effect of the 2014 Regulations was that the new sick pay regime did, after all, apply to An Garda Síochána.

34. In this appeal the applicant Association has emphasised the Minister’s obligation to consult with them prior to bringing about major changes in their conditions of employment. It has also drawn attention to the fact that the Minister was plainly influenced by the intervention of Mr. Cody, so that it was said that the Minister had taken irrelevant considerations into account in deciding to break off negotiations and effecting a volte face on the application to the new sick pay regime to the Gardaí.

35. If the Minister had been discharging an administrative or quasi-judicial function when making these Regulations then it would have to be admitted that the GRA’s objections would have been pretty well unanswerable. The Minister had, after all, given at least a tacit commitment that there would be further negotiations and the failure to honour that commitment by a person performing quasi-judicial functions would have amounted to a clear breach of fair procedures. One might likewise say that it would have been inappropriate for such a decision-maker (i.e. on this hypothesis, a person performing administrative or quasi-judicial functions) to have had any regard to the intervention and objections of a third party such as Mr. Cody, not least given that that third party might not have been fully informed as to the rationale for exclusion of An Garda Síochána in the first place or to the potential political and industrial relations consequences which might have come about had Mr. Cody’s warnings had not been heeded.

36. Like Kearns P. in the High Court, I consider, however, that this entire argument rests upon a subtle fallacy which obscures the real differences between the judicial role on the one hand and that performed by the two branches of government which are democratically accountable, namely, the Oireachtas and the Government, on the other. The judicial branch brings with it independence, detachment, an ability to determine facts in a systematic and rigorous fashion, the legal training to apply a large corpus of existing law and a solemn commitment on the part of each judge to uphold the Constitution and the law. Our institutional weakness is that, in Hamilton’s famous words, as “the weakest branch of government”, we lack “both the sword and the purse”.

37. The judicial branch quite obviously lacks the institutional competence, capacity and, most of all, democratic legitimacy to pursue policy matters of the kind - such as reform of the public service sick pay regime - at issue in the present appeal. Article 34.1 of the Constitution instead requires the judicial branch to administer justice, thus typically requiring the judge to apply conventional legal materials - such as rules of statutory interpretation, precedent and reasoning by analogy - in a detached and principled fashion, regardless of the consequences. The fallacy of which I speak rests on the assumption that the other branches of government should or, indeed, must act in a similar fashion to the judicial branch when formulating matters of policy such as is necessarily involved in the enactment of legislation or the promulgation of generally applicable rules which are contained in a statutory instrument such as the 2014 Regulations.

38. The other branches of government bring with them the strength of democratic accountability and the constitutionally assigned role of policy making. When enacting legislation the Oireachtas does not have to reason from principle or to justify its actions by reference to conventional legal norms. It does not matter, for example, that the Oireachtas (and, by extension, the Minister) may have been influenced by wholly pragmatic considerations - such as the need to accommodate the objections of the other public sector trade unions - in deciding that An Garda Síochána should have been included within the scope of the 2013 Act from the outset of that legislation. Provided, however, that it respects the Constitution and, at a wider level, remains within the parameters of EU law and the European Convention of Human Rights, the Oireachtas may legislate as it wishes.

39. The Government brings with it the policy insights of its members and the wider civil service. It can give a lead as to what is likely to be effective in practical policy terms and it is likewise dispensed from the necessity to rationalise its actions by reference to conventional legal principles.

40. The reason for this different approach is, of course, is that, generally speaking, the other branches of government are engaged in the business of policy formulation as distinct from the administration of justice. In contrast to judicial decision-making, the policy makers of the legislative and executive branches are not required to be consistent or to have regard to established precedent or to proceed from legal principle or to give detailed reasons in writing for their decisions. Nor are they required to be detached and impartial in the same manner as would be expected and required of the judiciary. Critically, however, the other branches of government are democratically accountable in a way that the judiciary are not.

41. This democratic accountability has the important consequence that the electorate expect their politicians to achieve practical results. Politicians who are perceived by the electorate as having failed to deliver such results will potentially suffer the electoral consequences. For these reasons, these politicians must have regard to the practical consequences of their decisions - and the wishes of the electorate - in a manner which would not be appropriate to judicial decision-making.

42. In the present case the Minister was engaged in the practical politics of policy formation by piloting the 2013 Act through the Oireachtas and by subsequently promulgating the detailed and generally applicable rules contained in the 2014 Regulations which gave effect to that legislation. It is true that the GRA might legitimately consider that they had been let down by the manner in which that decision was arrived. The GRA are also entitled to feel disappointed given that the critical intervention of Mr. Cody was not disclosed to them at the time and this only came to light subsequently in the course of the discovery process after these proceedings had been commenced. Yet, from the Minister’s perspective, the greater prize of securing the reform of a very expensive feature of public service pay and conditions while avoiding the threat of industrial action from other public sector unions made it imperative in the circumstances that a snap decision of this kind (i.e., to include An Garda Siochána in the new regime) be taken immediately, regardless of any assurances in relation to consultation which the Minister might previously have given to the GRA.

43. This conclusion finds expression in the case-law which has consistently rejected the suggestion that legislative, or quasi-legislative decisions, attracts the principles of fair procedures, even though such generally applicable rules might have significant implications for the livelihood, well-being and general welfare of those affected by such decisions. In Cassidy v. Minister for Industry and Commerce [1978] I.R. 297 McMahon J. held that the Minister was not required to consult with local vintners’ associations before promulgating a statutory instrument fixing maximum prices for the sale of alcohol in the Dundalk. (It is true that the associations succeeded on appeal in the Supreme Court, but on different grounds). Likewise, in Gorman v. Minister for Environment [2001] 2 IR 414 Carney J. held that there was no duty to consult taxi-drivers prior to making a statutory instrument effectively de-regulating the industry by abolishing a quota licensing system, despite the capital loss in the value of their licences which would necessarily ensue as a result. As Carney J. put it ([2001] 2 IR 414, 419):

      “Whilst there can be no doubt as to the existence of a constitutionally protected right under Article 40.3 to fair procedures in decision-making, it has been recognised in the case-law that the principles of constitutional justice do not apply with equal force to every situation and, indeed, in some circumstances where decisions are taken by public bodies, such as a decision to enact a particular piece of legislation by the Oireachtas, the audi alteram partem or the duty to consult and hear submissions does not arise at all. The citizen is not consulted in relation to increased taxation in the budget. There may, of course, be various practices in place to consult interested bodies or persons before legislative decisions, but this is undertaken as a matter of practice, not of law.”
44. In Gorman, Carney J. stressed the practical difficulties which any other conclusion would necessarily entail. It must be borne in mind that many legislative enactments and statutory instruments have implications for persons affected thereby. In recent years the Oireachtas has found itself obliged by reason of acute fiscal necessity to enact a swathe of legislation imposing new taxes and charges, reducing social assistance payments and reforming matters such as pension and sick pay entitlements of public service employees. While none of these measures have been welcomed with any enthusiasm by those affected by these increased taxes and charges or reduced social assistance payments, it has never been suggested that these measures were rendered somehow unconstitutional or invalid for want of formal consultation with the representatives of those likely to be affected thereby. As Kearns P. pointed out in his judgment, the practical business of the other branches of government would effectively come to a halt if there was a legal obligation to consult with even the representative bodies of the persons affected by the enactment of these generally applicable rules.

The decision in Burke v. Minister for Labour
45. It is true that there have been cases where a duty to consult has been found to exist, even in the case of a statutory instrument. Yet such cases have been exceptional and, upon closer examination, may be thought to present examples of where what in reality was an administrative decision (or, to use the words of Kearns P., a “targeted decision”), even if in form the decision in question had been taken by way of statutory instrument. The best example in this context is perhaps supplied by the Supreme Court’s decision in Burke v. Minister for Labour [1979] I.R. 354. In that case a Joint Labour Committee fixed minimum wages for persons working in the hotel industry by means of an order made under the Industrial Relations Act 1946. Employers were required by the 1946 Act to comply with the terms of the order. The representatives of the hotel industry wished to adduce evidence as to the real costs to them of supply board and lodging to employees, but the Committee fixed minimum wages for such employees without having regard to such evidence.

46. The Supreme Court held that the statutory instrument made by the Committee was invalid by reason of a failure to permit such evidence to be adduced. But the decision in Burke cannot realistically be regarded as an authority for the wider proposition that persons affected by the making of a statutory instrument are entitled to be heard prior to its adoption. On the contrary, it appears that the Joint Labour Committee in that case essentially made an administrative decision to which effect was then given by a statutory instrument without any further ministerial involvement or parliamentary control: see [1979] I.R. 354, 358-359, per Henchy J. It may also be significant that the Supreme Court subsequently held that the legislation at issue in Burke was unconstitutional, precisely because it allowed the delegation of law making functions to an entity which was not even a direct delegate of the Oireachtas, so that the 1946 Act contravened Article 15.2.1 of the Constitution: see McGowan v. Labour Court [2013] IESC 21, [2013] 3 I.R. 718. As O’Donnell J. stressed in McGowan, the remarkable extent to which these powers had been delegated was clearly a factor which had influenced the reasoning of the Supreme Court in Burke.

47. Viewed thus, the circumstances of Burke must be regarded as exceptional and special. The decision making at issue in that case in substance involved a targeted administrative decision. It was, however, quasi-legislative in form, as effect was subsequently given by statutory instrument to the actual decision made by the Joint Labour Committee.

48. I agree with Kearns P. that this is also the true explanation for the decision of the UK Supreme Court in Bank Mellat v. HM Treasury (No.2) [2013] UK SC 39, [2014] 1 AC 700. In that case the appellant successfully challenged a decision of the UK Treasury made by way of statutory instrument to exclude a major Iranian commercial bank from the UK financial sector on the ground of its alleged connections with a covert Iranian nuclear weapons programme. A majority of the Court held that the Treasury should have given the Bank an opportunity to make representations.

49. As Lord Sumption JSC observed ([2014] 1 AC 700, 776):

      “In my opinion, unless the Act expressly or impliedly excluded any relevant duty of consultation, it is obvious that fairness in this case required that Bank Mellat should have had an opportunity to make representations before the direction was made. In the first place, although in point of form directed to other financial institutions in the United Kingdom, this was in fact a targeted measure directed at two specific companies, Bank Mellat and IRISL. It deprived Bank Mellat of the effective use of the goodwill of their English business and of the free disposal of substantial deposits in London. It had, and was intended to have, a serious effect on their business, which might well be irreversible at any rate for a considerable period of time. Secondly, it came into effect almost immediately. The direction was made on a Friday and came into force at 10.30 a.m. on the following Monday. It had effect for up to 28 days before being approved by Parliament. Third, for the reasons which I have given, there were no practical difficulties in the way of an effective consultation exercise. While the courts will not usually require decision-makers to consult substantial categories of people liable to be affected by a proposed measure, the number of people to be consulted in this case was just one, Bank Mellat, and possibly also IRISL depending on the circumstances of their case. I cannot agree with the view of Maurice Kay LJ that it might have been difficult to deny the same advance consultation to the generality of financial institutions in the United Kingdom, who were required to cease dealings with Bank Mellat. They were the addressees of the direction, but not its targets. Their interests were not engaged in the same way or to the same extent as Bank Mellat's. Fourth, the direction was not based on general policy considerations, but on specific factual allegations of a kind plainly capable of being refuted, being for the most part within the special knowledge of the Bank. For these reasons, I think that consultation was required as a matter of fairness. But the principle which required it is more than a principle of fairness. It is also a principle of good administration. The Treasury made some significant factual mistakes in the course of deciding whether to make the direction, and subsequently in justifying it to Parliament. They believed that Bank Mellat was controlled by the Iranian state, which it was not. They were aware of a number of cases in which Bank Mellat had provided banking services to entities involved in the Iranian weapons programmes, but did not know the circumstances, which became apparent only when the Bank began these proceedings and served their evidence. The quality of the decision-making processes at every stage would have been higher if the Treasury had had the opportunity before making the direction to consider the facts which Mitting J ultimately found.” (emphasis supplied)
50. It is perfectly clear from this passage - and perhaps especially the words I have taken the liberty of highlighting - that the sanctions order was in reality an administrative decision taken under the guise of a statutory instrument. As Lord Sumption made clear, this Treasury direction was not taken on “general policy considerations”, but rather on the basis of specific factual allegations - namely, complicity in supplying banking services to a covert nuclear weapons programme - of a kind which were “plainly capable of being refuted.”

51. Of course, this is not at all to suggest that the principles of fair procedures and legitimate expectations do not apply to ministerial decisions or even to decisions taken by the Government. It is clear from the Supreme Court’s decision in East Donegal (East Donegal Co-Operative Ltd. v. Attorney General [1970] I.R. 317) that these principles apply to governmental and ministerial decisions affecting individuals or discrete groups of individuals which are essentially administrative in character and which do not involve the promulgation of generally applicable policies or legislative rules. Thus, for example, the rules of fair procedures apply to decisions concerning the grant of a licence (see, e.g., the decision in East Donegal itself) or an occupational pension (see, e.g. Kiely v. Minister for Social Welfare [1977] I.R. 287) or the dismissal from employment (see, e.g., Garvey v. Ireland [1981] I.R. 75). Numerous other examples could be given along similar lines.

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.

53. Insofar as the GRA seek to rely on a legitimate expectation of the promise of consultation independently of the principle of fair procedures, it is perhaps sufficient to say that any expectation of that kind could not prevail against the subsequent enactment of the 2013 Act. As Keane J. said in Pesca Valentia Ltd. v. Minister for Fisheries (No.2) [1990] 2 I.R. 305, no estoppel “could conceivably operate so as to prevent the Oireachtas from legislating or the Executive from implementing the legislation when enacted.”

54. In any event, as Kearns P. pointed out, s. 58C(b) of the 2013 Act expressly disapplies in the context of the operation of Part 7 (from whence the power to make the 2014 Regulations derives) any “verbal agreement, arrangement or understanding or any expectation”. The constitutionality of this sub-section has not been challenged or questioned and the plain language of these provisions is sufficient to extinguish any legitimate expectation which might otherwise have existed.

The rationality of Article 9 and Article 10 of the 2014 Regulations
55. It remains to consider the rationality of Article 9 and Article 10 of the 2014 Regulations. Counsel for the GRA, Mr. McDonagh S.C., submitted that these provisions were so opaque that it was simply impossible to ascertain their true meaning. No case is made by either applicant that they are immediately prejudiced by the operation of these provisions, save that Mr. McDonagh S.C. submits that his clients are entitled to know what they might mean. It is true these provisions defy easy analysis and, with respect, they would be unlikely to be held out as a model of simple or elegant drafting.

56. The fact remains, however, that it would be premature for this Court to conduct, as it were, an Article 26-style abstract review of the 2014 Regulations which was entirely divorced from the concrete and factual circumstances of an individual case where these provisions fell to be applied: see, e.g., by analogy the comments of the Supreme Court to this effect in Collooney Pharmacies Ltd. v. North Western Health Board [2005] IESC 44, [2005] 4 I.R. 142. Nor would it be appropriate for this Court to give what might amount to an advisory opinion on the possible meaning and interpretation of these admittedly complex and somewhat convoluted provisions. The determination of these issues will have to await a specific and concrete case involving an individual specifically affected by the operation of these Regulations: see, e.g., by analogy the comments of Henchy J. in Cahill v. Sutton [1980] I.R. 269, 283-284.

Conclusions
57. For the reasons stated, therefore, I consider that while the GRA are understandably aggrieved by both the manner of the Minister’s sudden volte face and the reasons for it, this does not give the applicants any legal ground of objection to the manner in which the 2014 Regulations were promulgated. 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.

58. Insofar as the applicants rely on a principle of legitimate expectations that they were be consulted on the question of whether the Regulations should apply to An Garda Siochána from the outset, it is sufficient to say that any such expectation could not prevail in view of the subsequent enactment of the 2013 Act and the making of the 2014 Regulations. In any event, s. 58C(b) of the 2013 Act expressly disapplied any such expectation.

59. Nor would it be appropriate at this juncture for this Court to consider the possible application and interpretation of Article 9 and Article 10 of the 2014 Regulations, as this should more appropriately await a specific case where these provisions fell to be interpreted and applied by the Minister in the first instance.

60. It is for these reasons that I consider that the decision of Kearns P. was correct and that the appeal should be dismissed.





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