|Stokes -v- Christian Brothers High School Clonmel & anor|
| IESC 13|
Supreme Court Record Number:
High Court Record Number:
|2011 15 CAT|
Date of Delivery:
Composition of Court:
|Murray J., Hardiman J., O'Donnell Donal J., McKechnie J., Clarke J.|
Link to Judgment
Murray J., O'Donnell Donal J.
THE SUPREME COURT
[Appeal No: 184/2012]
In the Matter of section 28 of the Equal Status Acts, 2000-2008
Christian Brothers High School Clonmel
Circuit Court Appellants/Respondents to the Appeal
Mary Stokes (on behalf of John Stokes a minor)
Circuit Court Respondents/Appellants on the Appeal
The Equality Authority
Judgment of Mr. Justice Clarke delivered the 24th February, 2015.
1.1 How scarce places in popular schools are to be allocated has been a matter of controversy for many years. That controversy has operated at a policy level and also, in certain cases, at a legal level. This case concerns the application of a rule in respect of admissions to a secondary school which, it is said, indirectly affects children from the travelling community. The rule in question gives preference to children whose parent (father, in fact, because it is a boys only school) had previously attended the school in question. At its most simple, the argument is that such a rule significantly impacts in a discriminatory way against members of the Travelling Community because of the limited number of members of that community who are of an age to have children wishing to go to secondary school, who had themselves the benefit of secondary schooling.
1.2 In that sense, the issue is simply put. The appellant on this appeal ("John Stokes") has brought these proceedings through his mother. It will be necessary to refer to the procedural history in due course. However, the case which John Stokes sought to make was successful at the level of the Equality Tribunal. Thereafter, the respondent to this appeal ("Clonmel High School") brought a statutory appeal to the Circuit Court. That appeal was successful, and the finding of discrimination reversed. Thereafter, an appeal was brought to the High Court by John Stokes. That appeal was unsuccessful, as a result of which a further appeal is sought to be advanced on his behalf to this Court.
1.3 It must immediately be noted that there is an important legal question as to whether any right of appeal exists to this Court in those circumstances. That is one of the issues with which this Court is concerned. In addition, there are certain other issues arising, assuming that an appeal does in fact lie, to which I now turn.
2. The Issues
2.1 Assuming that there is an appeal, an understanding of the other issues requires a brief statement of the legal framework, within which there can be a finding of indirect discrimination. The relevant statute is the Equal Status Act 2000, ("the 2000 Act") as amended by Part 3 of the Equality Act 2004 ("the 2004 Act") and by Part 14 of the Civil Law (Miscellaneous Provisions) Act 2008. It should first be noted that it is not disputed that Clonmel High School is an educational establishment within the meaning of s. 7 of the 2000 Act and that, therefore, in accordance with subs. (2) of that section, there is a prohibition on discrimination in respect of the admission or the terms or conditions of admission of a person as a student to such an establishment. While there are three principal forms of discrimination which have been rendered unlawful under the relevant legislation, the only form contended to exist on the facts of this case is what is often described as indirect discrimination. The other forms of discrimination, which do not arise here, are direct discrimination and discrimination by association.
2.2 At the heart of the law concerning indirect discrimination is s. 3(1)(c) of the 2000 Act, as substituted by s. 48 of the 2004 Act, which provides that there will be discrimination where:-
2.3 It will immediately be seen that there are a number of features to that section. The measure which is alleged to discriminate may be apparently neutral, but it must be established that the person making a complaint of discrimination is placed "at a particular disadvantage" as a result of the impugned provision. If such disadvantage is established, then discrimination will be found to exist unless the provision is objectively justified by a legitimate aim and such aim is sought to be achieved in an appropriate and necessary manner.
"… an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".
2.4 It must also be noted that the discrimination must be in relation to a person in a category specified in s. 3(2). Members of the Travelling Community are in such a category being specified in s. 3(2)(i). It follows that, in the context of this case, in order for indirect discrimination to be established, it must be shown that the challenged provision places John Stokes, as a member of the travelling community, at a "particular disadvantage" vis-a-vis persons who are not members of the travelling community. If that fact cannot be established, then that is the end of the case. However, if "particular disadvantage" can be established, then a second question arises as to whether the provision can nonetheless be justified by reference to a legitimate aim and as an appropriate and necessary means of achieving that aim.
2.5 A number of issues in respect of both legs of the test have been in contention from the very beginning of this process. In addition, an issue as to whether the claim brought on behalf of John Stokes was out of time has been in contention since the Circuit Court stage. Subject to an appeal lying to this Court, the issues in respect of both legs of the test and in respect of the time question remain alive on this appeal.
2.6 In order properly to understand the precise issues which arise, it is appropriate to start by tracing the history of these proceedings from the beginning.
3. History of the case up to and including the Equality Tribunal proceedings
3.1 In November 2009, an application was made on behalf of John Stokes for admission to Clonmel High School for the following academic year. The school’s admissions policy gave preferential access to applicants who met each of the following three criteria:
John Stokes is the eldest child in his family, and his father had not attended secondary school. Thus, John Stokes did not meet the second of the three criteria, as he was neither a sibling of a present or past pupil, a child whose father had attended the school, or someone with close family ties to the school.
“- whose parents are seeking to submit their son to a Roman Catholic education in accordance with the mission statement and Christian ethos of the school;
- who already has a brother who attended or is in attendance at the school, or is the child of a past pupil, or has close family ties with the school;
- who attended for his primary school education at one of the schools listed in Schedule Two, being a school within the locality or demographic area of the school.”
3.2 The school was oversubscribed in terms of applications in that year and, in accordance with the school’s own admissions policy, a lottery was carried out to allocate places to those who did not meet the above three criteria. Of those who did meet all three criteria, 57 were allocated places on the sibling ground, and a further 36 on the parental ground. Once those places had been allocated, 47 places remained available for the remaining 84 applicants, of which John Stokes was one.
3.3 John Stokes was informed in January 2010 that he had been refused a place on the basis of the results of the lottery, but was placed fourth on the waiting list. The school’s admissions policy also provides for an internal appeal against such a refusal. That appeal was heard on the 8th February, 2010, but was also unsuccessful. Under s. 29 of the Education Act 1998, there is also an appeal to the Secretary General of the Department of Education and Science against a refusal to enrol. A process of facilitation in relation to such appeals also exists. Both were attempted, but each was unsuccessful. The facilitation was deemed unsuccessful on the 31st March, 2010, and the refusal of the appeal was communicated on the 13th May, 2010. The Appeals Committee, to which the matter had been referred by the Secretary General, explained:
However, the Committee did recommend that the exceptional circumstances clause in the school’s admissions policy should be reviewed “in order to make it more inclusive.”
“The Board of Management of Clonmel High School were fair and reasonable in the application of the school’s admission policy in a situation where the numbers of applicants greatly exceeded the places available.”
3.4 A complaint was then referred to the Director of the Equality Tribunal (“the Director”) in July 2010, to the effect that both Clonmel High School and the Department of Education had indirectly discriminated against John Stokes on the basis that, as a member of the Travelling Community, it was much less likely that his father would have attended secondary school, and thus he was disproportionately disadvantaged by the relevant admissions policy. No issue as to the jurisdiction of the Director was raised by the school.
3.5 Following a request for further information by the Director, an oral hearing, under s. 25(1) of the 2000 Act, was held on the 9th November, 2010, with representatives of Clonmel High School and John Stokes's mother in attendance. Further information, which had been sought by the Director at the hearing, was furnished on the 10th November, 2010. A decision was issued on the 7th December, 2010.
3.6 The Director commenced by ruling that he did not have jurisdiction to consider the element of the claim made against the Department of Education. The remainder of his decision focused on the allegation of indirect discrimination against Clonmel High School. After explaining the relevant legislative provisions, the Director turned to the facts of the case and to the statistics concerning the Traveller Community. He concluded, based on the statistical evidence before him, that giving priority to brothers of either existing or former pupils was not liable to put Travellers “at a particular disadvantage compared with non-Travellers.”
3.7 However, on the “parental rule”, the Director, taking into account the evidence in relation to attendance at secondary school of members of the Traveller Community in John Stokes’ father’s generation, concluded that the operation of the policy disadvantaged Travellers more than non-Travellers. The Director then compared the chances of John Stokes getting a place under the present policy to what it would have been if the parental rule was not applied. He found that John Stokes' probability of getting a place in the latter scenario would have been 70%, an increase of 15% from what it actually was under the present policy. Therefore, he found that John Stokes was at a particular disadvantage compared to non-Travellers as a result of the preferential treatment afforded to children of past pupils. Finally, the Director considered whether the policy, although creating a particular disadvantage, was proportionate and could be objectively justified. The school’s argument that the scheme fostered family loyalty to the school was rejected for three reasons:
3.8 As the 2010-2011 academic year had started by the time of the Director’s decision, he found that it would be impossible to re-run the lottery in accordance with revised criteria. As redress, he ordered that John Stokes immediately be offered a place in the school, and that the school review its admissions policy to ensure compliance with equality legislation.
“1. The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases therefore, the means would not achieve the aim.
2. There are other ways of achieving this aim which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association etc.
3. The impact on Travellers is disproportionate to the benefit of the policy.”
4. The Circuit Court proceedings
4.1 An appeal by way of rehearing lies from the decision of the Director to the Circuit Court under s. 28(1) of the 2000 Act. The appeal by Clonmel High School came before His Honour Judge Teehan. On the first day of the hearing, the 9th June, 2011, an application was made by Clonmel High School to have the appeal dismissed on the basis that the Director did not have jurisdiction to hear the appeal as the time requirement for bringing such an appeal had not been complied with. Under s. 21(2) of the 2000 Act, as amended by s. 54 of the 2004 Act, a complainant must notify an alleged wrongdoer of the nature of the allegation and the fact of an intention to seek relief within two months of the last date of prohibited conduct. That date is fixed as the date on which the relevant notification is sent (s.21(2A)). The Director does have discretion to enlarge the time under s. 21(3). However, no such extension of time was sought or granted in this case. As noted above, this matter was not in issue before the Director, nor was it expressly pleaded in the Circuit Court Notice of Appeal. After hearing submissions from both sides, Judge Teehan dismissed the application on the basis that the notification was within time, in his view, as time only began to run in May, 2010, when the s. 29 appeal concluded. In addition, it was held that Clonmel High School had acquiesced throughout the Equality Tribunal proceedings.
4.2 Judge Teehan delivered his judgment on the substantive issue on the 26th July, 2011. At para. 12 of his judgment, the following issues for determination were identified:
Again, having examined the historic evidence of Traveller participation in secondary education, the trial judge concluded that the “parental rule” was discriminatory against Travellers to the extent that members of that community, such as John Stokes, were at a particular disadvantage. The Circuit judge held that the onus then shifted to the school:
4.3 With regard to point (A), the trial judge was satisfied that the “parental rule” was entirely in keeping with the school’s stated aim of “supporting the family ethos within education” and the “characteristic spirit of the school”, and was thus objectively justified as being wholly legitimate. Then, under point (B), the trial judge reviewed the appropriateness of the lottery system for those who did not fall into the preferred category. An examination of the history of how the school had admitted students in the past showed that a variety of methods had been used, including an entrance examination in some years, and a lottery in respect of all applicants in others. The present policy, which was reviewed on an annual basis, was found to strike an appropriate balance. Finally, in relation to point (C), the trial judge concluded that the continuing benefits provided by the link between past pupils and the school (whether in fundraising or other school activities) meant that “the inclusion of the ‘parental rule’ was a necessary step in creating an admissions policy which is proportionate and balanced.” The Circuit Court, therefore, upheld the appeal, and set aside the decision of the Director. However, it was noted that it might be appropriate for the Oireachtas to examine whether equality legislation should go further and provide for positive discrimination in schools’ admissions policies.
“[I]s [Clonmel High School] in breach of its duty to [Mary Stokes] and her son under the provisions of the Equal Status legislation; and, if so, is the difference between a 55% chance and a 70% chance of such little materiality that that (sic) it is governed by the maxim ‘de minimus non curat lex’?”
5. The High Court proceedings
5.1 An appeal also exists under s. 28(1) of the 2000 Act, as amended, to the High Court from the decision of the Circuit Court on a point of law. John Stokes appealed against the decision of the Circuit Court, and a cross-appeal was lodged by Clonmel High School on the preliminary issue as to whether the application to the Equality Tribunal had been made within time. The Equality Authority was granted leave to appear as an amicus curiae on the 7th September, 2011. The High Court judgment of McCarthy J. was delivered on the 3rd February, 2012 (Unreported, High Court, 3rd February, 2012).
5.2 On the preliminary issue of time, McCarthy J. rejected the contention that the last date of the prohibited conduct was the date of the conclusion of the appeal to the Secretary General of the Department of Education or that the prohibited conduct was continuing. Rather, he accepted that the refusal of admission in January 2010 was the single instance of alleged prohibited conduct, and that time began to run on the date that the internal appeals process against that refusal concluded on the 12th February, 2010. On that basis, the application was almost five months out of time. McCarthy J. further held that the Director had not adverted to or exercised the powers available to him to extend the time for the bringing of an appeal. On this point, McCarthy J. observed, at para. 13:
5.3 The judge then turned to the relevant provisions on indirect discrimination and in particular to the term “particular disadvantage”. Having cited the various definitions contained in the Oxford English Dictionary (2nd Ed.), McCarthy J. stated at paras. 25 and 26:
“The school would have succeeded before the Director on the time point. Judicial review would, prima facie, have been granted of the Director’s decision on the basis that he had no jurisdiction ab initio to enter into the merits but no such application is before me.”
As McCarthy J. concluded that there was no particular disadvantage, the subsequent question of objective justification did not arise. The appeal was, therefore, dismissed. It is from this decision that an appeal is sought to be advanced to this Court. The Equality Authority also appeared before this Court as amicus curiae. I now turn to the question of whether an appeal is permitted.
“25. I do not believe that the disadvantage suffered by travellers (in common with all other applicants who were not the sons of past pupils) pertains or relates to ‘a single definite person...or persons as distinguished from others’ or ‘distinguished in some way among others of the kind: more than ordinary; worth notice, marked; special’. This disadvantage relates to persons in addition to travellers and is not peculiar or restricted to travellers, and does not distinguish them among others of the kind (i.e. applicants for admission) and cannot be said to be ‘more than ordinary’, ‘worth notice’, ‘marked’, and ‘special’ because, of course, there are others in the same position as they are.
26. If one takes as the comparison all other applicants (173) everyone who is not the son of a past pupil is at a disadvantage by virtue of the rule. There is no distinction between the extent of the disadvantage suffered by travellers and others. If one makes the comparison with those who are the sons of past pupils the disadvantage suffered is the same as all applicants who were not such sons and have no priority. If one were to further break down the total number into class and make the comparison with persons other than those enjoying priority entry as sons, similarly, the applicant would be in the same position as all of those persons. Or if the persons chosen for comparison were only those admitted because their siblings were present or past pupil no discrimination is alleged and if, finally, one were to chose persons of the class in the lottery (as an actual fact) there would similarly be the same disadvantage. If one were to posit the existence of a hypothetical class, namely, a class comprising of those given priority entry and those who, as a fact, were in the lottery alone, a similar conclusion would follow.”
6. Does an Appeal Lie?
6.1 It is important to note the provisions of the legislation on which reliance is placed by Clonmel High School for the proposition that no appeal lies to this Court. The appeals process from a decision of the Director on the merits of a case is dealt with in s. 28 of the 2000 Act in the following terms:-
6.2 It is only appropriate for this Court to address the issues of substance which potentially arise on this appeal in the event that there is jurisdiction to entertain an appeal in the first place. Therefore, I turn to the question of whether such a jurisdiction exists.
“28.—(1) Not later than 42 days from the date of a decision of the Director under section 25, the complainant or respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.
(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).
(3) No further appeal lies, other than an appeal to the High Court on a point of law.”
6.3 The starting point has to be to consider the constitutional jurisprudence of this Court on the question of legislative provisions which have the effect of excluding or limiting a right of appeal from the High Court to this Court. It is first necessary to note the provisions of Article 34.4.3 of the Constitution which states:
6.4 It follows that the right of appeal from a decision of the High Court to this Court has a constitutional status, but one which is not absolute, for it is possible that such right of appeal can be restricted or excluded by legislation. However, in the light of the constitutional status of the right of appeal, this Court has consistently expressed the view that the wording of any statute which is said to restrict that constitutional right of appeal must be very clear.
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
6.5 The effect of Article 34.4.3 has been considered by this Court on a number of occasions. In The People (Attorney General) v. Conmey  I.R. 341, at p. 360, Walsh J. stated:
Similarly, in The People (Director of Public Prosecutions) v. O’Shea  I.R. 384, at pp. 403-404,O’Higgins C.J. stated that any legislative fetter on the Supreme Court’s appellate jurisdiction must be express:
"Before turning to deal specifically with these provisions I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action."
More recently, in Clinton v. An Bord Pleanála  1 I.R. 272, Fennelly J. quoted from the judgments of Keane C.J. and Geoghegan J. (with whom Denham, McGuinness, and Fennelly JJ. agreed) in A.B. v. Minister for Justice, Equality and Law Reform  1 I.R. 296 on this issue. In A.B., Keane C.J. stated at p.303:
“A law which regulates by subtraction from the Supreme Court’s appellate jurisdiction must do so expressly and must, in particular, conform to the stipulation contained in Article 34, s.4, sub-s.4, that it shall not extend to cases involving questions of constitutional validity.”
Geoghegan J. also observed at p. 316 of A.B:
“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in this case, there is the additional factor that the right of appeal to this court provided for in Article 34.4.3° may only be removed or abridged by a statutory provision which is clear and unambiguous.”
On the basis of these authorities, Fennelly J. concluded at p. 293 of Clinton:
“It would seem to be clear from the authorities, however, that an exclusion or regulation of the right to appeal to the Supreme Court need not be expressed. It is a matter of construction of the relevant statutory provision in each case, but there must not be any lack of clarity or ambiguity.”
6.6 Therefore, the real question under this heading is, whether the wording with which this Court is now concerned is sufficiently clear and unambiguous to meet that test.
“It emerges from the foregoing that any legislative attempt to limit either the right or the scope of the constitutionally conferred right of litigants to appeal decisions of the High Court must be expressed in clear and unambiguous terms.”
6.7 It is first necessary to note that the form of appeal provided from a decision of the Director to the Circuit Court is broad. However, it is the question of the extent of any right of appeal thereafter that is really at issue. The relevant provision is s. 28(3) of the 2000 Act, which is brief in its terms, and provides that "[n]o further appeal lies, other than an appeal to the High Court on a point of law". The reference to no further appeal seems to me to relate to an appeal beyond the broad appeal to the Circuit Court already provided for earlier in the same section.
6.8 The argument in favour of the proposition that no appeal lies to this Court is that an appeal from the High Court to this Court might be said to be a "further appeal" and might, thus, be taken to have been excluded by the provisions of subsection (3).
6.9 The argument against such a construction, which was put forward on behalf of John Stokes, drew attention to the type of wording which has most commonly been used in legislation to exclude an appeal from the High Court to this Court. As an example, counsel cited s. 39 of the Courts of Justice Act 1936, which provides that an appeal to the High Court shall be “final and conclusive and not appealable”. Another example of the use of less ambiguous phraseology is s. 123(4) of the Residential Tenancies Act 2004, which provides “The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive”.
6.10 It is true, of course, that the Constitution does not require the use of any particular formula or form of words to give rise to what is described in Article 34.4.3 as an "exception" to the appellate jurisdiction of this Court. It must, inevitably, be a matter of construction of the words used in each case. Therefore, the fact that the form of words used in this case does not conform to that used in the majority of legislative provisions by which an appeal to this Court is excepted is not, of itself, sufficient to establish that an appeal lies.
6.11 On the other hand, there are important features of s. 28(3) of the 2000 Act which need to be considered. The first is that it is clear that the subsection is intended to permit only a limited form of appeal. The appeal is one "on a point of law". That is terminology which has been used to limit many forms of statutory appeal to, and within, the courts. For instance, s. 42(1) of the Freedom of Information Act 1997 provides for an appeal on a point of law to the High Court by a person affected by a decision of the Information Commissioner following a review under s. 34 of the 1997 Act; and s. 123(3) of the Residential Tenancies Act 2004 provides for an appeal on a point of law to the High Court by any of the parties in respect of a determination of a Tribunal of the Private Residential Tenancies Board. The principles applicable to the scope of such appeals have been summarised by McKechnie J. in John Deely v. The Information Commissioner  3 I.R. 439, which concerned an appeal under s. 42 of the Freedom of Information Act, 1997, where he said at p. 452:
6.12 Thus, at least part of the purpose of subsection (3) must be designed to define the type of appeal which can be pursued to the High Court. In that context, it might be argued that the phrase "no further appeal" is simply designed to limit the scope of appeal to the High Court rather than to preclude what would otherwise be a constitutionally conferred right of appeal to this Court.
“There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision…”
6.13 If this were simply a matter of straightforward construction of the relevant statute, then I might well have come to the conclusion that the proper interpretation of subsection (3) was such as would have excluded a right of appeal to this Court. However, as is clear from the authorities to which I have referred, the constitutional status of the right of appeal to this Court is such that an exception to that right requires clear and unambiguous wording. On balance, I have come to the view that the wording of subsection (3) is insufficient to meet that high constitutional test. It is not free from ambiguity.
6.14 For those reasons, I am not satisfied that the language used is sufficient to exclude an appeal to this Court and, on that basis, it is appropriate to proceed to consider the merits of the appeal. However, it seems to also follow that the appeal permitted to this Court is limited in the same way as the appeal from the Circuit Court to the High Court. In other words, the appeal to this Court can only be "on a point of law" in accordance with the well established jurisprudence as to the scope of such appeals. An appeal from the High Court to this Court must be based on an assertion that the High Court judgment and order was wrong in some respect. The only basis on which the High Court is permitted, when itself conducting an appeal "on a point of law", either from a statutory body or from the Circuit Court, to overturn the first instance decision is if a sufficient error of law is identified. The only issues which can properly arise on an appeal to this Court concern whether the High Court has correctly decided that such an error of law exists. Thus, the jurisdiction of this Court is limited in precisely the same way as the jurisdiction of the High Court.
6.15 I would make one final observation on the question of appeals generally. There may very well be sound reasons of policy why parties should ordinarily be confined to one hearing on the merits and one appeal. But there are also sound reasons why important legal issues should be capable of being brought to the highest court.
6.16 Having concluded that an appeal lies, the first issue which logically arises is the question of whether the claim brought on behalf of John Stokes before the Director of the Equality Agency was out of time. Therefore, I will address that question first.
7. Is the Claim out of time?
7.1 As noted earlier, no question concerning the issue of whether the claim was out of time was raised on behalf of Clonmel High School when the matter was before the Director. The issue was raised for the first time before the Circuit Judge, who concluded that the case was not out of time. McCarthy J. came to a different conclusion.
7.2 There are, potentially, two separate issues. The first is as to when time began to run. Is it, as was argued on behalf of John Stokes and as was accepted by the Circuit Judge, when the s. 29 appeal was concluded in early May 2010? Or is it, as McCarthy J. held, when Clonmel High School’s internal appeals process concluded on the 12th February, 2010?
7.3 However, there is a second, and perhaps logically anterior, issue as to whether it is now open to Clonmel High School to rely on the time issue. In that context, it is important to note that s. 21(3) of the 2000 Act provides an express authority to the Director to extend time in an appropriate case. It seems to me that, in the light of the fact that additional procedures, in the form of a s. 29 appeal to the Department of Education, were being pursued, a cogent case could have been made on behalf of John Stokes to seek to persuade the Director to extend time if the point had been taken by Clonmel High School at that stage.
7.4 It seems to me that a party cannot be deprived of the opportunity to seek an extension of time by reason of the fact that its opponent does not raise the time issue at all before the body, in this case the Director, on whom the power to extend time is conferred. It is clear that the time bar in this case is not an absolute one, because it is capable of being extended by the Director. It is not, therefore, a barrier which goes to jurisdiction as such. Rather, it is a measure which may, in the absence of a successful application to extend time, lead to a claim not being able to proceed on the merits.
7.5 However, it seems to me to follow that it is incumbent on a respondent to a claim before the Director to make any point concerning time which may be open to them so as to put the claimant on notice that there is a time issue, and to afford the claimant an opportunity to seek to persuade the Director to extend time. Against that background, it seems to me that a failure to raise the time question before the Director may lead to a legitimate conclusion that a respondent is, thereby, precluded from raising the point thereafter. It must be acknowledged, however, that there may be cases where a failure to raise a time point might not be decisive. For example, there might be cases where a respondent would be able to argue that it was, through no fault of its own, unaware of aspects of the factual matrix against which the question of possible reliance on a time bar would have to be considered. However, no such circumstances appear to have arisen on the facts of this case. To now rule that Clonmel High School is entitled to rely on a time bar, and thus to deprive John Stokes of the opportunity to persuade the Director to extend time would, in my view, be to countenance a manifest injustice. In those circumstances, it seems to me that Clonmel High School is precluded from raising the time bar issue. It follows that it is unnecessary, therefore, to consider any other aspect of that issue, or to determine when time began to run on the facts of this case.
7.6 On that basis, it is appropriate to turn to the substantive matters on the merits of the case, which arise on this appeal. As already noted, there are, in substance, two legs to the question of whether indirect discrimination has been established. The second leg, which is concerned with justification, only arises in the event that the first leg, as to whether particular disadvantage has been established, is made out. Therefore, it follows that it is necessary to first consider the question of "particular disadvantage", for if the appeal against the decision of the trial judge in respect of that aspect of the case is not successful, then the question of justification does not arise.
8. Particular Disadvantage
8.1 Under this heading, it is important to start by recalling that both the Director and the Circuit Judge found themselves satisfied that particular disadvantage had been made out. It was McCarthy J. who, for the reasons already cited, came to a different conclusion. Therefore, the starting point has to be to consider whether the view expressed by McCarthy J. as to the meaning of the term "particular disadvantage" is correct. The reasoning of McCarthy J. was that the potential discrimination which John Stokes might suffer as a member of the Travelling Community was no different from the disadvantage which any other person, not a member of the Travelling Community, who could not qualify for an automatic place, would likewise suffer. Thus, McCarthy J. saw no distinction between John Stokes and another non-Traveller applicant who, for example, did not have a father who attended secondary school.
8.2 I have come to the conclusion that McCarthy J. was mistaken in that approach. The starting point of any analysis must be to note that indirect discrimination only arises where disadvantage can be said to occur in respect of persons by reference to one of the categories specified in s. 3(2) of the 2004 Act. The fact that a provision or measure may place persons generally at a disadvantage vis-à-vis others, does not, of itself, give rise to a sustainable finding of "particular disadvantage" within the meaning of the legislation. The fact that persons generally who did not have a father who went to secondary school would be at a disadvantage in seeking to obtain a place in a school which applied a preferential rule for children whose parents attended the school is neither here nor there. Discrimination between children whose parents went to secondary school and those whose parents did not is not, of itself, discrimination covered by the 2000 Act, for such categories of children are not specified as being protected as a result of the categorisation of protected groups by reference to s. 3(2). The choice of the categories which have the benefit of such protection was, of course, a matter for the Oireachtas. The Oireachtas has chosen to include indirect discrimination against members of the Travelling Community as a type of discrimination which is not permitted. The fact that similar discrimination, or disadvantageous treatment, might also apply to others in an unprotected category does not affect the question of whether that same treatment, applying to members of the Travelling Community, might not, after proper analysis, be properly regarded as giving rise to a finding of indirect discrimination.
8.3 For those reasons, I am not satisfied that the approach of McCarthy J. was correct. However, that is far from an end to the matter. As pointed out earlier, the appeal which lies to the High Court is one on a point of law. It follows that the appeal to this Court can be no broader, for this Court can only consider whether the High Court was right or wrong. The scope of the appeal to this Court must, likewise, be confined to the question of whether the Circuit Court determination was wrong on a point of law. Unless the High Court correctly determined that the Circuit Court was wrong on a point of law, then it follows that the decision of the Circuit Court judge must stand. Given that I have concluded that the basis on which McCarthy J. came to the view that the Circuit Judge was wrong in his determination on "particular disadvantage" was incorrect, it follows that I must now examine any other basis put forward for suggesting that the determination of the Circuit Judge on that point was incorrect in law. In order to approach that question, it is necessary to consider how it is appropriate, as a matter of law, to consider and determine questions of "particular disadvantage".
8.4 Counsel for the amicus curiae put forward a simple example which, in my view, is helpful in understanding the concept of indirect discrimination and the question of particular disadvantage. She posited a rule which imposed a qualification requirement for a particular employment of a certain minimum height. As we all know men, on average, are taller than women. In respect of a particular height chosen as a minimum qualifying height, there may well be many more men than women who meet the standard. That is not to say that there would not be some tall women who qualified anyway and some short men who failed anyway. However, the chances of qualifying may be much greater for a man than for a woman. It seems to me that such a rule undoubtedly places women at a disadvantage. Obviously, in respect of any single individual, the question is clear. A woman, just like a man, either is or is not above the requisite height. She either qualifies or she does not. However, s. 3 is concerned with categories of people. It involves, for example, women and men, Travellers and non-Travellers, those of different religious beliefs and those of different sexual orientations. The provision or measure which may fall foul of the indirect discrimination prohibition contained in s. 3 is, by definition, apparently neutral. It makes, therefore, no specific reference to the category of person who might be indirectly affected by it. The postulated height rule, to which I have referred, makes no mention of men or women. It affects some, but not all men, and some, but not all women. Any individual (be they man or woman) either qualifies or they do not. However, it places women at a disadvantage because women are, as a potentially protected category under s. 3(2), placed at a disadvantage vis-à-vis men, as an alternative category. The section operates, in my view, at the level of category rather than at the level of the individual.
8.5 Obviously, in order for a particular individual to have standing to mount a claim, that individual must be affected by the rule in question. In the example given, a woman who happened to be tall enough to meet the height requirement could not bring a claim, for the rule would not have impacted upon her. But that would not mean that the rule would nonetheless not be discriminatory against women generally. It would simply mean that any case seeking to challenge the rule would, as a matter of standing, have to be brought by a woman who was below the relevant height requirement, and thus, a person on whom the rule had an adverse impact.
8.6 I am mindful of the fact that s. 3 requires that "particular disadvantage" be established. It will be necessary to consider what the word "particular" adds to that requirement in due course. However, the starting point has to be that there must be, at least, a disadvantage in the first place. That disadvantage must be considered by comparing the differential effect of the relevant measure on the competing categories of persons. In order for a protected category of persons to be said to be at a disadvantage in comparison to an alternative category (in this case members of the Travelling Community and non-Travellers), then it seems to me that it is necessary to attempt to analyse the effect of the measure on both of those categories respectively. Such an exercise necessarily carries with it some degree of statistical analysis. How, as a matter of law, such analysis is to be properly conducted is a matter to which I will shortly return. However, first it is necessary to consider the meaning of the word "particular".
9. The meaning of "particular"
9.1 Counsel on behalf of John Stokes accepts the definition of the word “particular” as set out in the Oxford English Dictionary (2nd ed.) and as cited by McCarthy J. in his judgment. However, it is contended that, in interpreting the meaning of the word “particular”, a court must look “to the totality of the definition of indirect discrimination” and not to the meaning of “particular” in isolation. It is said that the High Court erred in interpreting the dictionary definition of “particular” as requiring an “exclusive effect”, rather than a “measurable difference”. Counsel also adopted the submissions of the amicus that a 15% reduction in the chance of getting a place amounted to a disadvantage significant enough to constitute to a “particular disadvantage”. In support of this proposition, the amicus relied on the decision in R. v. Secretary of State for Employment, ex parte Seymour Smith  1 W.L.R. 435, where a smaller differential in the treatment of men and women was found to be in breach of the relevant UK disadvantage requirement. Clonmel High School submits that “particular” “requires a level of disadvantage which is specific and marked” or means “marked, considerable or appreciable”, and that a 15% loss in opportunity does not meet that high threshold.
9.2 I am satisfied that the use of the term "particular" brings with it a requirement, as a matter of law, that it must be established that the extent of any disadvantage is significant or appreciable. It does not seem to me to be simply a question, as the Circuit Judge put it, of applying a rule such as de minimis non curat lex, and thus excluding minimal or trivial distinctions. It must be recalled that the measure under consideration must ostensibly be neutral. Many measures will have some degree of differential impact between one group and another. It will, in many cases, be possible to produce some analysis which suggests that one protected category or another may be slightly disadvantaged by a measure. However, if it had been intended that such slight disadvantage could give rise to a finding of indirect discrimination, then it does not seem to me that the words "particular" would have been included in the section. A requirement of a finding of disadvantage alone would have sufficed.
9.3 The Oireachtas has not chosen to adopt any quantifiable measure of the extent of the disadvantage which must be established in order that it can be properly said, as a matter of law, to be a "particular disadvantage". That is left to the judgment of either the Director or, on appeal, of the courts. However, a starting point must, necessarily, be to conduct an appropriate analysis of the extent of any disadvantage. In passing, it should be noted that such an analysis is required for two purposes. Firstly, the scale of any disadvantage must be known in order to determine whether, in all the circumstances, it can be said to place the relevant protected group at a "particular disadvantage". Secondly, the scale of any disadvantage may well be relevant in assessing whether any objective justification meets the "appropriateness" test. A provision or measure, which places a protected group at a highly significant level of disadvantage, and which only contributes in a very marginal way to a legitimate aim, might very well fail the appropriateness test. On the other hand, a measure which creates a much lesser degree of disadvantage (although just about sufficient to meet the particular disadvantage test), but which contributes to a very great extent to an important, legitimate objective, might meet the appropriateness test. An analysis of the degree of disadvantage may, therefore, be necessary not only to determine whether the level of disadvantage is sufficient to be properly described as a "particular disadvantage" but also to form an important component in the analysis of whether justification has been made out.
9.4 Therefore, it follows that, as a matter of law, the Director, or a court considering whether particular disadvantage has been established, must carry out a proper analysis of the extent of any disadvantage at which a protected group has been placed by reason of the ostensibly neutral measure in order, to determine whether that level of disadvantage is sufficient to meet the particular disadvantage test. As noted earlier, such analysis necessarily requires some statistical consideration. I, therefore, turn to the question of the proper approach to the analysis of disadvantage.
10. The Analysis of Disadvantage
10.1 There is, of course, a material extent to which an assessment of the degree of disadvantage is a matter of fact to be determined either by the Director or by the Circuit Judge in the event of an appeal. To an extent, such matters do not involve any point of law, but rather are an assessment of the facts on the evidence. There is, therefore, a limitation on the extent to which such matters can be revisited in a form of appeal which is, as already noted, one limited to an appeal on a point of law. However, the proper overall approach to the assessment of the degree of any disadvantage is, in my view, a matter of law, even though the application of that approach to the facts of an individual case may not be. It is in that context that it is necessary to analyse what the proper approach should be, and to determine whether it was applied by the Circuit Judge in this case.
10.2 Obviously, the manner in which it is necessary to approach the question of disadvantage will, at least to a material extent, be dependent on the nature of the measure or provision which is said to be discriminatory, and on the category of persons said to be discriminated against. In the course of this judgment, I will use the term "qualifying", or cognate words, to refer to persons who may not be adversely affected by a measure. Obviously, such terminology is entirely appropriate in a case such as this where the issue is as to whether pupils qualify for automatic places or not. Other language may, of course, be more appropriate in different circumstances. However, the broad principles are likely to remain the same.
10.3 I propose to start by addressing some specific issues, which arose on this appeal concerning the proper approach to the analysis of the facts of this case. Some of those issues are peculiar to the issues, although some are potentially of much greater general application. I propose to address those points in turn.
10.4 The first concerns the question of whether it was appropriate to consider solely the figures for one year's set of applicants to Clonmel High School, as both the Director and the Circuit Court judge did. It must be recalled that the basis for analysing whether there is disadvantage must be to compare the relevant protected group with its counterpart. Whether it is sufficient to analyse the consequences for those to whom a particular provision or measure might be applied over a narrow timeframe, in order to provide an adequate analysis of the true extent (if any) of disadvantage, will depend on all the circumstances of the case. Not all measures or provisions apply in such a discreet way as those which govern entrance to a school. Such entrance is, almost always, conducted on a once off annual basis. Other types of measures may apply continuously, for persons may be affected by them at all times, and not merely when some form of recruitment or entrance process is conducted on a one off or periodic basis. If, for example, large numbers of persons were continuously affected by a challenged provision or measure, then it might well be enough to analyse the differential effect of that measure on the protected and the alternative group over a relatively short period of time, provided there was no reason to believe that the conclusions reached by so doing would distort the overall analysis. If, for example, there was no special reason to believe that the figures would come out much differently taking one three month period with another, then a sufficient analysis of the differential effect of the challenged measure on those affected by it in a three month period might well be enough.
10.5 But it is important to emphasise that statistical analysis is notoriously capable of giving rise to inaccurate indications when very small numbers are involved. To give an example, if, out of 50 persons who might potentially be affected by a measure, one only examines the extent to which it adversely affects two or three, then the risk of those two or three being unrepresentative of the group as a whole is extremely high. To take an extreme example, a measure, such as the one under consideration in this case, even if one looks at it from the narrow perspective of the parental rule alone, is a measure which either affects someone adversely or it does not. If only one individual from a particular group is looked at, then that person will either be affected or they will not. However, knowing whether that one person was adversely affected or not does not really tell one anything about the extent to which the measure affects the category as a whole.
10.6 The important point to emphasise is that a proper analysis of disadvantage will normally require sufficient numbers to make that analysis meaningful. Any one individual either qualifies or does not qualify. Looking at the position of a single individual does not really add very much to the analysis of disadvantage. It is necessary, in that context, to identify the group to whom it can reasonably be said that the challenged provision or measure applies, and to conduct an analysis of a sufficiently large number of persons to form a realistic view as to whether the protected group is truly at a measurable disadvantage by reference to its counterpart. Whether looking solely at the intake for the relevant academic year for a comparison between the effect of the rule on, members of the Travelling Community and non-Travellers respectively was sufficient to meet the requirement of sufficient analysis is a question to which I will return.
10.7 A second, specific point which arose in the course of argument was the extent to which it is appropriate to look at the parent rule in isolation, or whether it is necessary to look at the cumulative effect of the overall admission policy of Clonmel High School. In argument, counsel for the amicus curiae suggested that a discriminatory measure cannot be justified by reference to the fact that there may be some other measure which, to a greater or lesser extent, ameliorates the effect of the discriminatory measure. At the level of principle, it is possible that there may well be some merit in that argument.
10.8 However, it seems to me that there is an anterior question. What is "the provision" which can be said to give rise to disadvantage? At the level of principle, where a number of alternative means are provided for complying with a qualifying measure, and where it is only necessary to qualify under one heading, then "the provision" must mean the totality of the alternative measures available. Where there are alternative means of qualification, then it does not seem that one can sever one possible means of qualification without having regard to all of the others. This is apparent for at least two reasons. First, it is in the nature of a provision, which may give rise to a disadvantage, that an assessment of that disadvantage must have regard to any alternative means of qualifying within the same provision. Second, and perhaps of equal importance, it is, for the reasons already analysed, necessary to have regard to the extent of any disadvantage in order to determine whether it can be said to be a particular disadvantage within the meaning of the legislation. It is impossible to measure the extent of any disadvantage without also having regard to any alternative means of qualifying. I should emphasise that these comments are concerned solely with measures which involve alternative means of meeting whatever criteria may be established. Where cumulative requirements, as opposed to alternative requirements, are imposed, then it is appropriate to look at each one individually. Here, the second aspect of the qualification criteria can be met where either the applicant pupil has a sibling who attended or is in attendance at the school, or where the parental rule is met, or where the applicant has close family ties with the school. Any one of those criteria allows the second leg of the test to be met. Therefore, it seems to me that the second leg of the test, as a whole, is the "provision" which must be considered. The proper basis of analysis should, therefore, have been to consider whether, and if so to what extent, that second leg as a whole placed persons from the Travelling Community at a disadvantage.
10.9 The next point which requires some comment concerns the argument put forward on behalf of Clonmel High School concerning a difficulty in providing accurate information about Traveller applicants or potential applicants. The point made was that the question of whether a person is in fact a member of the Travelling Community is not necessarily one which would be known to school authorities unless the applicant or a parent of an applicant declares that fact. As counsel suggested, many of the other protected categories are fairly obvious. At least in the vast majority of cases, it is fairly clear that persons are either male or female.
10.10 I do not doubt that some level of difficulty might well have arisen for the production of accurate figures as a result of the problem which counsel identified. That does not, however, mean that an attempt could not have been made. It is clear that the onus of establishing particular disadvantage rests on the person claiming indirect discrimination. The Director is, of course, entitled to seek such information as might be considered relevant and necessary to a proper determination of the question. Any difficulties in compiling relevant information would need to be properly taken into account, and would need to be assessed by the Director in order to determine whether the onus of proof had been met. Like considerations would clearly apply in the case of an appeal to the Circuit Court. There is no requirement that any figures relied on are unimpeachable. Any analysis is open to difficulty in compiling figures. The fact that the figures may not be perfect does not prevent either the Director or a Circuit Judge on appeal from nonetheless being satisfied that the onus of proof has been met. However, that does not mean that there can be any diminution in the obligation to ask the right question. The fact that the information available to allow that question to be answered may not be perfect is another matter altogether. The information may, in some cases, be so imperfect that the onus of proof may not be met. However, the information may, in the judgment of either the Director or a Circuit Judge, be sufficient to allow an appropriate conclusion to be reached despite its imperfections. Subject to a test of irrationality on O'Keeffe principles, those are matters for the fact finder, be it the Director or the Circuit Judge. However, whether the correct question was asked in the correct way is a matter of law capable of being reviewed on appeal to either the High Court or to this Court. The fact that the information, which might have been produced had the correct question been asked, could have fallen short of complete, for reasons such as those advanced by counsel, would, of course, have been a matter which the decision maker could have to have taken into account in assessing whether the onus of proof had been met. But it is not a reason for not asking the right question in the first place.
10.11 Finally, there is the question of identifying the relevant group of persons, from a geographical perspective, for the purposes of assessing any differential effect on members of the Travelling Community, on the one hand, and non-Travellers, on the other, so as to assess whether, and to what extent, disadvantage has been established. In my view, a realistic assessment of those who might potentially be affected by any provision sought to be challenged must be engaged in. It is, prima facie, a matter for the decision maker, whether Director or Circuit Judge, to form a view as to the appropriate group to be assessed. The High Court (or this Court) considering an appeal on a point of law, must accord significant deference to an assessment made by the decision maker as to the respective groups to be assessed. In this case, one might look at only those who sought a place in Clonmel High School, or those who are within a geographical area where it might be expected that they might wish to apply. It is always necessary to consider, in cases which involve persons making an application in order to qualify, that one of the effects of a potentially discriminatory measure might be that people do not even apply in the first place, thus distorting any figures generated by reference solely to those who apply. However, within the bounds or rationality, it is prima facie a matter for the decision maker to be satisfied that those who are assessed for the purposes of conducting a comparative analysis of the effect of the challenged provision on the protected group and its counterpart are realistic. There may not necessarily be only one appropriate answer to the question of the precise definition of those groups. Provided that the decision maker identifies a set of sustainable, comparative groups, neither the High Court nor this Court should interfere.
10.12 But it is important to recall that school admission is, at least to a very large extent, a local phenomenon. With the exception of boarding schools, the vast majority of secondary school students come from a reasonably identifiable catchment area.
10.13 Some types of measures may, of course, involve the entire country. Recruitment, for example, to An Garda Síochána or the Defence Forces, is open to persons from all areas. An analysis of an allegedly indirectly discriminatory measure in the context of such recruitment would require an analysis on a country-wide basis. Just how deep that analysis would need to be would, prima facie and within the bounds of rationality, be a matter solely for the decision maker. A regional sample, for example, where there was no particular reason to believe that it was unrepresentative, might well be sufficient. However, here the Court is concerned with what is undoubtedly a local phenomenon. However the precise boundaries of the catchment group might be described, it is clearly a group based in or around Clonmel.
10.14 In that context, it must be emphasised that it does not necessarily follow that a measure applicable to an educational institution in one area of the country necessarily has the same effect as an identical rule in another part of the country. If, for example, a point in time was reached where it was clear that, in a particular catchment area, children of the Travelling Community were every bit as likely to have a parent who attended a particular school as non-Traveller children within the same area, then indirect discrimination against members of the Travelling Community on the basis asserted in this case could not be established. The fact that a different situation might exist in a different part of the country could quite legitimately lead to a conclusion that an identical measure could give rise to indirect discrimination somewhere else. Where the effect of the challenged provision or measure is necessarily confined and local, it remains open to the possibility that an identical measure may place a protected group at a particular disadvantage in one part of the country, but not in another. This may be so simply because the effect of the measure on the group in question may itself vary from one part of the country to another owing to relevant characteristics of the group not being identical in those different parts.
10.15 Based on that analysis, it seems to me that it is appropriate to address the issue of the proper question which should be asked in order to determine whether there is a disadvantage, in a case such as this, between a protected group and its counterpart, and for the measurement of the extent of that disadvantage.
11. The Proper Question
11.1 It is important to start by emphasising that the issue of the proper question which a decision maker (be it, on the facts of this case, either the Director or a Circuit Judge) should ask, is a question of law. Therefore, if it can be shown that the decision maker did not ask the right question, the decision cannot stand.
11.2 In that context, it is important to distinguish, at least to some extent, between the overall question which the relevant law requires the decision maker to ask in order to reach a final conclusion, and subsidiary or intermediate questions which may need to be addressed for the purposes of reaching such an overall conclusion. The overall question is a matter of law. Whether the decision maker asked the proper overall question must be reviewed on the basis of correctness. However, depending on the facts of any individual case, it may well be that some reasonable discretion must be left to a decision maker as to the intermediate or subsidiary questions which need to be asked in order to reach a proper overall conclusion. In reviewing that aspect of the decision making process, it will be necessary, before overturning a decision, to be satisfied that the subsidiary or intermediate questions asked were outside of the bounds of those which might reasonably lead to a proper answer to the overall question.
11.3 In the context of the issues which arise in this case, being whether, and if so to what extent, disadvantage has been demonstrated, the overall question seems to me to be clear: Has it been shown that a member of the Travelling Community is at a disadvantage compared with a non-Traveller as a result of the measure under challenge? For the reasons which I have already sought to analyse, I am satisfied that the measure or "provision", the effect of which must be assessed, is that containing the various components of the second leg of the rule adopted by Clonmel High School, for each of those components are alternatives. Thus, the cumulative effect of those alternative qualifying requirements on a potential applicant for a place in Clonmel High School must be assessed. It is clear that no analysis of that question was, in fact, carried out. Insofar as any analysis was conducted, it was primarily of the effect of the parent rule alone, with the only exception being that the Director also examined the sibling rule, but did so on an alternative rather than on a cumulative basis.
11.4 The result which an analysis of the "sibling or parent or close connection" rule would have delivered is something on which one can only speculate. It was suggested in evidence before the Circuit Court, on behalf of Clonmel High School, that a policy of inclusiveness in relation to members of the Travelling Community had been pursued in the past. The possibility, therefore, that the sibling element of the rule might have positively affected the overall extent to which potential applicants for places in the school who came from the Travelling Community might have been disadvantaged is by no means fanciful.
11.5 There were reasonably good figures for the effect of the sibling or parent rule (the close connection aspect of the rule does not appear to have had a significant effect) on the population of the Clonmel catchment area taken as a whole. The number of those who met either the parent or sibling requirement, and the number of those who did not, was capable of fairly ready calculation. However, there was no real calculation of the likelihood of a member of the Travelling Community satisfying the second leg of the test by qualifying under either the sibling or parental aspects of the rule. In order to attempt such a calculation, it would have been necessary to at least seek to obtain information about the number of members of the Travelling Community who met either of those criteria. In order for the results of any such analysis to be meaningful, it would have been necessary to look at figures over a sufficient number of years to be able to reach a reasonable conclusion on the extent of the effect of the rule as a whole (involving both its sibling and parental components) on relevant members of the Travelling Community. It would also have been necessary to determine whether, and if so to what extent, its effect was more severe on members of the Travelling Community than on non-Travellers. In that context, it should be recorded that a reasonable degree of discretion would necessarily have to be allowed to a decision maker as to what scale of numbers would need to be considered in order to provide any meaningful analysis.
11.6 The one thing that seems clear is that simply analysing the effect on members of the Travelling Community by identifying that John Stokes, as the sole applicant member of that community affected in the year in question, did not qualify under the parental rule alone, fell a long way short of complying with the necessary analysis. Likewise, in assessing the extent to which the measure might have an effect on respectively members of the Travelling Community and non-Travellers, a decision would have to be made as to the appropriate overall group to be considered. While it might have been preferable to attempt to extend the group beyond those who applied for a place in Clonmel High School (for the reasons already analysed as to the potential discouragement created by potentially discriminatory measures), nonetheless a reasonable level of discretion must be left to a decision maker as to the group to be considered, provided that there was a reasonable basis for taking the view that the group assessed gave an accurate picture of those potentially affected by the rule under challenge. In all the circumstances, it seems to me that selecting as such a group those who applied for a place in Clonmel High School was within the range of groupings which a decision maker was entitled to select. I make that latter point subject to one caveat, which is to the effect that if the number of members of the Travelling Community assessed was, as a result of choosing both the catchment group and the time period at which that group was to be looked at, too small to warrant an appropriate inference on disadvantage, then it might have been necessary to extend the scope of the matters examined under one or both criteria so as to provide meaningful statistics.
11.7 In addition, it is important to say something about the statistics, for Traveller participation in secondary education in the country as a whole, on which some reliance was placed both by the Director and the Circuit Judge. There may, of course, be circumstances in which it is both possible and appropriate to draw an inference from national figures for the effect of a measure on a protected category in a local area. There may be no reason to believe that there would be any significant variation from one part of the country to another. Unless, returning to the previous example, there was some reason to believe that there was a significant difference in the respective heights of men and women in different parts of the country, then it would be appropriate to infer that a height requirement, which applied to a local measure, affected men and women respectively in exactly the same way in that area as it would in the country as a whole.
11.8 The figures produced clearly demonstrated that the likelihood of a typical potential secondary school pupil from the Travelling Community nationwide having a parent who attended any secondary school was very substantially less than that applicable to a non-Traveller. It seems to me that extrapolating from those figures, without further analysis, that such a situation applied in the context of Clonmel High School, was an inappropriate inference. The correct question is not whether a typical member of the Travelling Community as a whole is less likely to have a parent who went to secondary school than a typical non-Traveller. Even if the appropriate analysis was to be applied to the parental rule alone, this would not be an appropriate means of analysis. In addition, therefore, to adding in to the analysis a consideration of the effect of the sibling rule, it was also necessary that some attempt should have been made to apply the national figures to the context of Clonmel, and in particular to the context of Clonmel High School and its history of previous Traveller pupils.
11.9 In summary, therefore, I am not satisfied that either the Director or the Circuit Judge asked the correct question or carried out an appropriate analysis to answer that question. The appropriate starting point was to determine the differential effect of the combination of the sibling and parental rules on potential Traveller applicants to Clonmel High School and potential non-Traveller applicants respectively. That question was not addressed at all because of the failure to have regard to the alternative means of qualification by virtue of having, or having had, a sibling in the school. Entirely apart from that, and allowing for some reasonable discretion as to the definition of the group to which the analysis should be applied and the period of time over which the phenomenon should be examined, the analysis did not really address the question of the effect of the rule on a typical applicant or potential applicant for Clonmel High School. The analysis of the effect on potential non-Traveller applicants was, in my judgment, adequate. The analysis of the effect on potential Traveller applicants, confined as it was, in substance, to the one case of John Stokes, fell a long way short of being adequate. There was simply no evidence or material on which any realistic assessment could have been made as to the question of the chances of a typical potential Traveller applicant for a place in Clonmel High School meeting even the parental rule by itself, let alone meeting the combination of the sibling and parental elements of the overall rule.
11.10 That analysis seems to me to be sufficient to lead to the conclusion that it was not open to the trial judge in the Circuit Court to conclude that any disadvantage, let alone a particular disadvantage had been established. That is not to say that the answer to the question of whether there is a particular disadvantage potentially present in respect of a combined sibling and parental rule, so far as Travellers are concerned might not be answered in the affirmative. The difficulty is that the evidence and materials to allow such a conclusion to be reached on the facts of this case were just not present.
11.11 In the light of that finding I am satisfied, although for very different reasons, that McCarthy J. was correct to overturn on point of law the decision of the Circuit Judge on the question of particular disadvantage. Lest this matter arise again, there is one further point which arose in argument on which I think I should comment. That is the question of the effect of failing to qualify under the sibling or parental rule. It is, of course, the case that applicants were not excluded from the school simply because they did not so qualify. Rather, they went into a draw for places. The effect of the measure was, therefore, that qualification meant that one certainly got a place, but lack of qualification meant that one had only a chance of getting a place. Counsel for Clonmel High School argued that such a risk of not obtaining a place was not the sort of measure which could give rise to indirect discrimination. I turn to that question.
12. Is risk relevant in indirect discrimination?
12.1 As I understood it, the argument put forward on behalf of Clonmel High School at the appeal before this Court centred on the concept of the creation of a risk of disadvantage rather than an actual disadvantage. On the basis of that argument, it was said that, at least so far as indirect discrimination is concerned, a risk of disadvantage was not sufficient because the legislation requires that a party be at "a particular disadvantage" and not at a risk of such disadvantage.
12.2 I am not satisfied that that argument is well founded. There is a very real sense in which the type of disadvantage which is spoken of in the legislation is all about risk. A measure which impacts disadvantageously on a protected category, in comparison with its alternate does not necessarily affect all of the members of the protected group adversely, just as it does not necessarily affect the entire alternate group positively. The disadvantage is, at least in many cases, all about the probability of the measure impacting on the respective groups and the disparity between those respective probabilities. A measure which has the effect of significantly reducing the chances of a person from a protected group of qualifying in some way (or, to put it another way, increases the chances of such a person not qualifying) places that person at an actual disadvantage. If the level of that disadvantage is sufficiently large or appreciable, then the person will have been placed at a particular disadvantage and thus will meet the statutory test.
12.3 Indeed, on the facts of this case, it seems to me to be important to emphasise one aspect of the proper analysis of the question of disadvantage. Once a member of the Travelling Community went into the draw for one of the remaining places (on the basis of not having qualified for an automatic place), then the chances of that member of the Travelling Community getting a place was exactly the same as any other person in that draw. There was no doubt about that fact. The area where potential disadvantage arose in the context of a member of the Travelling Community was in relation to qualification for an automatic place (because such members might have had a lower chance of so qualifying) rather than arising from the random selection of those who did not automatically qualify.
12.4 An overall analysis of the level of disadvantage suffered by a member of the Travelling Community would have required two matters to be calculated. First, it would have been necessary to determine the chances of a member of the Travelling Community of qualifying under the parent or sibling rule for automatic enrolment entitlement. For the reasons which I have already analysed, I am not satisfied that there was sufficient information before either the Director or the Circuit Court to enable any proper analysis or approximation of that probability to have been calculated. Second, it would have been necessary to calculate the chances of a member of the non-Travelling Community so qualifying. There was sufficient information to allow that calculation to be done, and it was, in fact, done correctly within the bounds of the entitlement of the respective decision makers to define the parameters of their enquiry.
12.5 In addition, however, it would have been necessary to calculate the extent of the disadvantage caused by failing to obtain automatic qualification, and to factor that into an overall assessment of the degree of disadvantage. The fact that there was no certainty about not getting a place even if one did not qualify for an automatic enrolment required to be taken into account.
12.6 An overall assessment of the disadvantage, which may have been suffered by members of the Travelling Community by the operation of the parent or sibling rule, would require taking into account both of those factors. In order to fail to gain a place it was necessary that one non-qualification for an automatic place and losing out in the process of random application of the remaining places. The overall calculation of the likelihood of a member of the Travelling Community obtaining a place requires both of those factors to be brought into account because the overall chance of obtaining a place is the addition of the chance of obtaining an automatic place and the chance of obtaining a randomly selected place. Likewise, the overall calculation of the likelihood of a child from a non-Traveller background obtaining a place requires both factors to be properly taken into account. If those calculations were properly carried out in respect of both Traveller and non-Traveller children, then it would have been possible to compare the overall chances, respectively, of a child from the Travelling Community and a of child from a non-Traveller background, obtaining a place. It follows that any difference between those probabilities or chances should be readily apparent on foot of that type of analysis and could be assessed as to whether it demonstrates a particular disadvantage as that term is used in the legislation.
12.7 However, for the reasons set out earlier in this judgment, I am not satisfied that any sustainable calculation of that type was conducted, or was capable of being conducted, on the evidence and materials before both the Director and the Circuit Court.
12.8 I should emphasise that there is, of course, no reason in principle why particular disadvantage cannot be established by statistical analysis. Indeed, in many cases it may well require statistical analysis to assess whether a provision gives rise to a particular disadvantage in respect of a protected group. The very fact that the provision which may be found to give rise to indirect discrimination is ostensibly neutral makes this likely. However, the fact that indirect discrimination can be established by proper statistical analysis emphasises the need that such analysis be sufficiently robust to sustain a determination of the extent of disadvantage which the impugned provision creates.
12.9 As the onus of proof lay on John Stokes it follows that the absence of sufficiently robust statistical materials or analysis in this case means that the decision of the Circuit Judge to find that there was particular disadvantage was wrong in law due to an absence of sufficient evidence as well as by virtue of the Circuit Judge having failed to identify the "provision" correctly.
12.10 Having concluded that this case should have failed before the Circuit Court on the question of particular disadvantage by reason of the absence of adequate evidence to allow a proper analysis to be carried out, it follows that it is unnecessary, and in my view inappropriate, in all the circumstances of this case, to go on to consider whether the provision might be considered to be objectively justified. I come to that conclusion not least because of the view expressed earlier that the extent of any disadvantage suffered may be relevant in considering whether a provision, sought to be justified as achieving a legitimate aim, is "appropriate and necessary". In the absence of a sustainable finding concerning the degree of disadvantage, the exercise of attempting to assess appropriateness or necessity would be fraught with danger.
13.1 It follows that, in my view, McCarthy J. was incorrect in his approach to the question of the meaning of the term "particular disadvantage".
13.2 However, for the reasons which I have sought to analyse in some detail, I am not satisfied that there was sufficient evidence and materials either before the Director or the Circuit Court to enable a proper assessment to be carried out as to whether there was, in fact, particular disadvantage. The existence of such evidence and materials, and the approach adopted to their analysis, are essential matters to enable a sustainable decision of particular disadvantage to be made. The absence of sufficient evidence, materials and analysis gives rise to an error of law, which requires the decision of the Circuit Judge on particular disadvantage to be overturned. Asking the right question and going about seeking to answer that question in the right way is, in substance, a matter of law. A failure so to do, therefore, requires that a decision made as a result of such a process be overturned in an appeal on a point of law.
13.3 I would, therefore, but for very different reasons, agree with McCarthy J. that the decision of the Circuit Judge in this case on the question of the establishment of particular disadvantage must be overturned. I would add that, as I have pointed out earlier, it by no means necessarily follows that a conclusion to the effect that there was particular disadvantage, in the case of the application of a sibling or parental rule of the type under consideration in this case, could not be properly and sustainably made after proper analysis.
13.4 Having concluded that the decision of the Circuit Judge to the effect that particular disadvantage had been established must be overturned, it does not seem to me that it is either necessary or, in the circumstances of this case, appropriate to go on to consider, in the abstract, whether the Circuit Judge was correct to conclude that the impugned provision was nonetheless justified notwithstanding that it created a particular disadvantage. As to the overall result of this appeal it is clear that I ultimately agree, although as pointed out for very different reasons, with McCarthy J. that the final result determined on by the Circuit Judge, being to dismiss the claim, was correct. In those circumstances I would dismiss this appeal.