Gaeilge

Title:	Doherty & anor. -v- South Dublin County Council & ors.
Neutral Citation:	[2006] IESC 57
Supreme Court Record Number:	223/06
High Court Record Number:	2006 131 JR
Date of Delivery:	10/31/2006
Court:	Supreme Court
Composition of Court:	Murray C.J., Denham J., McGuinness J., Fennelly J., Macken J.
Judgment by:	Fennelly J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Fennelly J. Link Murray C.J., Denham J., McGuinness J. Macken J. Link

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Murray C.J.
Denham J.
McGuinness J.
Fennelly J.
Macken J.BETWEEN
JUDGMENT of MR JUSTICE FENNELLY delivered on the 31st day of October, 2006.

1. This is an appeal against an order of Quirke J in the High Court granting liberty to the Equality Authority (hereinafter “the Authority”) to act as an amicus curiae in the above-mentioned judicial review proceedings.

2. The applicants are a married couple in their seventies. They are members of the travelling community living at an emergency halting site at Clondalkin, County Dublin. They have secured leave to bring these judicial review proceedings. They allege that the first-named respondent, as housing authority, has failed to provide them with appropriate accommodation in the form of a centrally heated, insulated and internally plumbed caravan. They say that they are denied the comforts which members of the settled community would have in a house. This failure, it is claimed, is contrary to:

· The Housing Acts 1966-2004 as interpreted in the light of the European Convention on Human Rights Act, 2003;

· Section 3 of the European Convention on Human Rights Act, 2003;

· Articles 40.1, 40.3 and 41 of the Constitution;

· The Equal Status Acts 2000-2004, and in particular section 6 of the Equal Status Act, 2000, as amended;

· Council Directive 2000/43/EC of 29th June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (hereinafter “the Race Directive”).

3. For present purposes, the allegation of most relevance is that this failure of the first-named respondent constitutes discrimination, either directly or indirectly, against members of the travelling community in relation to social advantages and the provision of services, including housing.

4. It is also pleaded that the second-named respondent is under various duties pursuant respectively to the European Convention on Human Rights and the Race Directive and that the state has failed properly to transpose the directive.

5. The solicitors for the applicants notified the Authority of the existence of the proceedings and suggested that the Authority might consider applying to be joined in the proceedings. The Authority applied by notice of motion to the High Court for an “order pursuant to the inherent jurisdiction of the ……court giving to the Equality Authority liberty to appear as amicus curiae” in the proceedings. The affidavit of the applicants’ solicitor grounding the application stated, inter alia:

· “…… it is the function of the Equality Authority, inter alia, to promote equal treatment of all persons without discrimination on the grounds of racial or ethnic origin;

· the issues raised in the proceedings …, and in particular the purported discrimination suffered by the plaintiffs in relation to the allocation of housing concern questions of equal treatment and discrimination and are therefore issues which come within the direct remit of the Equality Authority ……;

· the importance of these issues clearly transcends the facts of this particular case and has implications for the entire Travelling Community……."

6. The affidavit proceeded to state:

"13. It would appear from the pleadings already filed by the Plaintiffs herein that it is likely that questions of the proper interpretation of the Race Directive and its inter-relationship with domestic legislation will arise in these proceedings. The Equality Authority considers that it has an interest in these matters and may be of assistance to the Court, in particular in regard to the question of the proper interpretation of the provisions of the Equal Status Acts, 2000 - 2004, Race Directive and its interaction with the provisions of the Equal Status Acts, 2000 - 2004. The issue of reasonable accommodation in the provision of accommodation services to persons with a disability also arises by reason that the facts of the case raise an important issue of law as to how section 6 falls to be interpreted in the light of section 4 of the Equal Status Acts, 2000 - 2004 where the applicants for accommodation have a disability.

14. I say and believe that, if granted the right to appear, the Equality Authority would be in a position to make oral and written submissions in relation to those issues that would be of assistance to this Honourable Court."

7. The application was opposed by the second, third and fourth-name respondents, effectively by the State. For brevity I will refer to them as the appellants. The grounds for that opposition have been replicated on this appeal. In substance, it is contended that the Authority is a creature of statute and has no power to become an amicus curiae in general court proceedings.

8. Quirke J, in an ex tempore judgment of 22nd May 2006, held that the Authority had a bona fide interest in the proceedings, citing the judgment of this Court in H.I. v Minister for Justice, Equality and Law Reform [2003] 3 I.R. 197. He said, in the course of his ruling:

"I am satisfied that were the court to appoint the Equality Authority by way of amicus curiae, it has developed a body of experience and expertise in relation to the issues within its statutory remit, particularly avoidance of discrimination as against members of ethnic groups and I note that the issues in these proceedings concern, amongst other things, allegations in relation to the discriminatory legislative treatment with regard to the provision of accommodation for the applicants who are members of the Travelling Community. As I say, if the Equality Authority is to be appointed by way of amicus curiae, it follows that the normal rules in relation thereto will apply. That is to say that … the participation of the Equality Authority in the hearing were it to be so appointed would be at the direction of the Trial Judge and it would be in a position to furnish assistance to the court in the event that the court required assistance and in a manner directed by the court. As I say I am satisfied that the Equality Authority has a bona fide issue [sic] in that regard."

9. The learned judge went on to examine the argument about statutory powers and held that the proposal was “incidental or consequential upon the Authority’s express statutory powers.” He referred particularly to the long title and to section 39 of the Equal Status Act, 2000. He stated that he derived assistance from the decision of the House of Lords in Re Northern Ireland Human Rights Commission [2002] NI 236.

10. Quirke J also dealt with an argument concerning the interpretation of the relevant equality legislation in the light of the Race Directive. The Authority contended before the High Court, as it has before this Court, that the provisions of the Equal Status Act, 2000 and of the Equality Act, 2004 should be interpreted in the light of certain provisions of the Race Directive. This is what the Court of Justice calls the principle of “conforming interpretation.” As I have said in other judgments, this is a poor rendering of the French expression “interprétation conforme.” The most material provisions of the Race Directive are Articles 7.2 and 13.Quirke J agreed with the contentions of the Authority. For reasons which will emerge later in this judgment, I do not consider it necessary to quote these provisions. It suffices to say that the learned High Court judge held that they appeared to confer on the State an onus of establishing bodies such as the Authority and that such bodies would be envisaged as playing a role in proceedings covered by the subject-matter of that Directive.

11. I turn then to the appeal. The appellants challenge the decision of the High Court on both grounds. They state that the Authority has no statutory power to act as amicus curiae and that nothing in the Race Directive or the principle of conforming interpretation requires the Court to interpret the legislation so as to confer such a power. It is logical to consider the first of these points first. If the legislation, read in accordance with normal interpretative principles, includes the relevant power, there is no need to consider the Directive.

12. Mr Anthony Collins, Senior Counsel, based what he described as his principal argument on behalf of the appellants on the fact that the legislation contains no express power for the Authority to act as amicus curiae in court proceedings. On the other hand, the Authority may intervene in proceedings in a number of particular cases. According to Mr Collins, applying the principle expression unius est exclusio alterius, it is clear that the Oireachtas did not intend to confer such a power. Statutory bodies enjoy only such powers as are conferred on them expressly or by necessary implication. Mr Collins added that the Authority had unsuccessfully made a submission to the Minister that the legislation should be amended. He also added that the almost exactly contemporaneous legislation, the Human Rights Commission Act, 2000, by way of contrast did confer such an express power on the Commission established by that Act.

13. In short, the essence of the appellants’ case is that the express instances of the Authority’s power to intervene in court proceedings are implicitly exhaustive of the powers of the Authority in this respect.

14. In responding to these submissions, it is appropriate to refer to the more general provisions of the legislation concerning the Authority.

15. The Authority was originally established by the Employment Equality Act, 1977 under the name Employment Equality Agency. Section 38 of the Employment Equality Act, 1998 changed its name to the Equality Authority. Up to and including the Act of 1998, its functions related exclusively or almost exclusively to employment matters. The Equal Status Act, 2000 expanded the scope of the activities of the Authority. That Act is described as follows in its long title:

AN ACT TO PROMOTE EQUALITY AND PROHIBIT TYPES OF DISCRIMINATION, HARASSMENT AND RELATED BEHAVIOUR IN CONNECTION WITH THE PROVISION OF SERVICES, PROPERTY AND OTHER OPPORTUNITIES TO WHICH THE PUBLIC GENERALLY OR A SECTION OF THE PUBLIC HAS ACCESS, TO PROVIDE FOR INVESTIGATING AND REMEDYING CERTAIN DISCRIMINATION AND OTHER UNLAWFUL ACTIVITIES, TO PROVIDE FOR THE ADMINISTRATION BY THE EQUALITY AUTHORITY OF VARIOUS MATTERS PERTAINING TO THIS ACT, TO AMEND THE EMPLOYMENT EQUALITY ACT, 1998, IN RELATION THERETO AND IN CERTAIN OTHER RESPECTS AND TO PROVIDE FOR RELATED MATTERS

16. The extended definition of “discrimination” in section 3 provides that it may be a discriminatory ground between any two persons:

“that one is a member of the Traveller Community and the other is not (the "Traveller community ground")…”

17. Section 6 provides, inter alia, that a person shall not discriminate in: “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”

Section 39 provides:

"The Authority shall have, in addition to the functions assigned to it by any other provision of this Act or by any other Act, the following general functions:

(a) to work towards the elimination of prohibited conduct;

(b) to promote equality of opportunity in relation to the matters to which this Act applies; and

(c) to provide information to the public on and to keep under review the working of this Act and, whenever the Authority thinks it necessary, to make proposals to the Minister for its amendment;"

18. Mr Collins accepted in the course of argument---or, at least did not dispute—that these provisions, taken on their own, were capable of including a power for the Authority to play the role of amicus curiae in proceedings such as the present.

19. His entire argument was based on implicit exclusion by certain other provisions of the Act. He cited sections 65, 67, 72 and 85 of the Act of 1998 as examples of powers of the Authority to take part in proceedings. However, since that Act is concerned only with employment matters, I do not think they are relevant to resolution of the present issue. Mr Collins relied especially on two sections of the Act of 2000. Section 8(3), dealing with what is called a “discriminating club” provides:

“Any person, including the Authority (in this section referred to as "the applicant"), may, on application to the District Court,…… request that the Court make a determination as to whether a club is a discriminating club.”

20. Section 23 confers on the Authority power to refer to the Director of Equality Investigations appointed under section 75(1) of the Employment Equality Act, 1998 certain matters including “prohibited conduct.” Section 23(3) provides as follows:

“Where, on application to the High Court or the Circuit Court, the Authority satisfies the Court that the Director, pursuant to section 25(4), has decided that a person has—

(a) engaged in prohibited conduct, or

(b) contravened section 12(1) or 19 or regulations made under section 17 or 18,

and that there is a likelihood of a further occurrence of the prohibited conduct or a further contravention by the person, the Court may grant an injunction or such other relief as the Court deems necessary to prevent the further occurrence or contravention.”

21. These are obviously very specific provisions. It is not suggested that they even implicitly authorise the Authority to act as amicus curiae in a cases such as the present. That authority is to be found, if at all, in the general wording of the 2000 Act, in effect in section 39.

22. However, the appellants, both in their written and oral submissions attached especial importance to the fact that the expression, “proceedings,” is defined in section 3 of the Equality Act, 2004 as follows:

(a) "proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and

(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,

but does not include proceedings for an offence under this Act …"

23. This definition replaces a definition of the same term contained in the Acts of 1998 and 2000. In each of those cases the term was defined as “including” the proceedings mentioned, whereas the Act of 2004 uses the word “means.”

24. Mr Collins submitted that the authority of the Authority is limited to participation in proceedings as so defined. He accepted, however, that there is no section which so provides in express terms. The definition of “proceedings” is of no assistance whatever in determining the powers of the Authority for present purposes. That term is used throughout the Acts of 2000 and 2004 in many different contexts, none of them concerned with the power of the Authority to commence or take part in legal proceedings, in the general sense. When invited by the Court to do so, counsel was unable to refer to any functional purpose within the Acts of the definition of “proceedings,” other than to refer to sections 8 and 23 of the Act of 2000, quoted above. However, each of those sections refers to an “application.” Neither refers either to a “request or reference,” the expression used in the definition of “proceedings” in section 3 of the Act of 2004.

25. The appellants have failed, in my view, to show that either the definition of “proceedings” or the express terms of sections 8(3) or 23 of the Act of 2004 necessarily exclude the power of the Authority to act as amicus curiae.

26. It remains to consider whether that power is included within the scope of the general powers of the Authority. As I have indicated above, section 39(a) is the most relevant power. The Authority is authorised to “to work towards the elimination of prohibited conduct…” Mr Collins did not seek to place limits on the scope of the power conferred by that provision.

27. The courts have developed principles of interpretation of the powers of statutory bodies over a period of more than a century. The leading modern decision of this Court is that in Keane and others v An Bórd Pleanála and others [1997] 1 I.R. 184. Members of the Court disagreed, in that case, on the precise and rather technical point of whether the Commissioners of Irish Lights had power, within the ambit of their powers, to erect “beacons” to install the modern system of navigation known as “Loran-C.” However, all members of the Court adopted the same approach to the applicable principles of interpretation.

28. The following appears in the judgment of Hamilton C.J., speaking for the majority:

“The Commissioners are a corporation created by statute and as stated in Halsbury's Laws of England, (4th ed.) vol. 9, para. 133 in the following passage which was quoted by the learned trial judge:--

"The powers of a corporation created by a statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of incorporation or may be fairly regarded as incidental to or consequential upon those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited."

As stated by Costello J. as he then was, in the course of his judgment in Howard v. Commissioners of Public Works [1994] 1 I.R. 101 at p. 112:--

"It has long been established as a general principle of the construction of the powers of statutory corporations that whatever may be regarded as incidental to, or consequential upon those things which the legislature has authorised, ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires ( Attorney General v. Great Eastern Railway Company (1880) 5 A.C. 473 at 478)."

The powers of the Commissioners, being a body created by statute, are limited by the statute which created it and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of incorporation or may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised.”

29. Denham J, in dissent, cited the identical authority to the same effect. Given the clarity of these principles, it does not appear to me to be necessary to consider in the detail in which it was addressed in argument the decision of the House of Lords in the case concerning the Northern Ireland Human Rights Commission. The House applied very similar, if not identical, principles. Nonetheless, the Court of Appeal in Northern Ireland and the House of Lords differed in their interpretation of the relevant legislation. A majority of the former court, with Kerr J, as he then was, in dissent, considered that the Northern Ireland Human Rights Commission had no power to act as amicus curiae. The House of Lords reached the opposite conclusion, with Lord Hobhouse of Woodborough in dissent.

30. It is preferable to seek to apply the general principles laid down in Keane v An Bórd Pleanála to the legislation before the Court. It must be emphasised that the only issue raised by the appellants is that the Authority has no statutory power to act as amicus curiae. It is not suggested that, assuming the power to exist, the learned High Court judge exercised his discretion incorrectly. Clearly, that is an issue which will arise in all future cases. It is clear that, to use the language of Keane C.J., it is a power to be exercised sparingly. Such cases will be exceptional.

31. However, I am satisfied that, in the present case, the Authority has the statutory authority to apply to act and, if permitted by the court, to act as amicus curiae. In my opinion, that power falls well within the scope of the general power of the Authority. It is not merely ancillary or incidental. It is, however, a power of comparatively modest proportions compared with the broad and general powers of the Authority. It is a power to intervene in court proceedings in circumstances where the Authority considers that it can assist the court in reaching a conclusion. Quirke J accepted that the Authority was in a position to assist the court.

32. That conclusion is sufficient to sustain the power of the Authority to apply to act and, if given leave by the court, to act as amicus curiae in proceedings which relate to its statutory functions. It is, therefore, unnecessary to consider whether the same conclusion could be reached by interpreting the legislation in the light of the Race Directive.

33. I would dismiss the appeal and affirm the order of the learned High Court judge.