THE SUPREME COURT DETERMINATION
BETWEEN/ Seamus Mallon
APPLICANT AND
The Minister for Justice
FIRST RESPONDENT AND Ireland
SECOND RESPONDENT AND
The Attorney General
Neutral Citation: [2023] IESCDET 28
Supreme Court Record No: S:AP:IE:2022:000140
High Court Record No: 2021 No 665 JR
Date of Determination: Friday, 24 February 2023
Composition of Court: Charleton J, Woulfe J, Collins J
Status: Approved
THIRD RESPONDENT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The court grants leave to the applicant to appeal to this court from the High Court.
ORDER SOUGHT TO BE APPEALED
COURT: High Court
DATE OF JUDGMENT OR RULING: 6 October 2022
DATE OF ORDER: 8 November 2022
DATE OF PERFECTION OF ORDER: 25 November 2022
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 20 December 2022 AND WAS NOT IN TIME.
REASONS GIVEN:
1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this court in BS v Director of Public Prosecutions [2017] IESCDET 134, and in a unanimous judgment of a full Court in Price Waterhouse Coopers v Quinn Insurance Ltd [2017] IESC 73. The additional criteria required to be met in order that an appeal direct from the High Court to this Court can be permitted were addressed by a full panel of this Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115.
2. It should be noted that any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the court. The application and the reply are appended. There is no need to refer to these by way of repetition.
3. This application arises from a judicial review challenge to the mandatory retirement age of 70 imposed on sheriffs in Ireland pursuant to s 12(6)(b) of the Court Officers Act 1945. Seamus Mallon was appointed to the statutory office of sheriff on the 28 January 1987 for Cavan and Monaghan.
4. Section 12(6) of the 1945 Act provides:
The following provisions shall have effect in relation to the office of sheriff:
(a) the office of sheriff shall be non-pensionable and shall be held at the will and pleasure of the Government;
(b) the age of retirement from the office of sheriff shall be seventy years;
(c) every person appointed to the office of sheriff shall give security to such amount and in such manner as the Minister shall direct (either generally or in any particular case) for the due performance of his duties;
(d) every sheriff shall furnish to the Minister such annual or other returns and such accounts as the Minister shall from time to time direct, either generally or in any particular case;
(e) any officer of the Minister authorised in that behalf by the Minister shall be entitled at all reasonable times to enter the offices of any sheriff and thereupon to inspect the offices, to inquire into the work done therein, to examine the accounts of the sheriff, and to be furnished by the sheriff with any information in regard to such offices, work, or accounts which he may require;
(f) the same person may be appointed to be sheriff for a county borough and one or more adjoining counties;
(g) the conditions of employment of every sheriff shall, subject to the foregoing provisions of this section, be such as the Minister for Finance, after consultation with the Minister, shall from time to time determine.
5. Seamus Mallon turned 70 in May 2022 and was obliged to retire from office in accordance with the 1945 Act. Reliance in the judicial review proceedings commenced before the High Court was placed by the applicant on a decision by the Minister for Justice not to review the statutory retirement age. This consideration arose following a formal submission on the part of the Sheriff’s Association, an organisation of which Seamus Mallon is a member, in July 2020 to the Minster for Justice seeking an
amendment to the retirement age. A response dated 20 April 2021 was made by email on the part of the Minister:
The Department of Public Expenditure and Reform has explained that the standard compulsory retirement age in the public service was consolidated following the enactment of the Public Service Superannuation (Age of Retirement) Act, 2018, to the greatest extent possible, at the age of 70. This position represents current Government policy, and is a position which that Department seeks to implement in a consistent manner in order to protect the integrity of the policy.
6. The judicial review proceedings challenging this commenced in July 2021. These sought to quash the decision of the respondent to not review the age of retirement for sheriffs and also sought a declaration of the incompatibility of the legislation with European Union law, specifically Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, as transposed into Irish law by the Employment Equality Act 1998 (as amended)
7. The recitals to the Directive state that “any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community” (at recital 12). Article 6(1), however, states that “Member States may provide differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim”. It was asserted by Seamus Mallon in the High Court and in the application to this Court that there is no such objective or reasonable justification for the retirement age set out in the 1945 Act, thereby contravening EU law.
8. Phelan J, refusing the order sought by Seamus Mallon. She highlighted at [17] of her judgment ([2022] IEHC 546) that the Public Service Superannuation (Age of Retirement) Act 2018 introduced a mandatory retirement age of 70 for all public servants subject to the Act. In the result, she concluded that this retirement age for sheriffs was in line with other public servants. In considering the compatibility with such a retirement requirement with the Framework Directive, Phelan J, reasoned thus:
85. From the evidence, the justification relied upon for the mandatory retirement age is that it enables planning (for retirement, for recruitment and for promotion), it makes way for younger people, personal and professional dignity, allows an age balance and intergenerational fairness and consistency. In particular, I accept that the aims sought to be achieved by the adoption of a standard retirement age of 70 were to allow for planning at the level of the individual and at the level of the organisation, the creation of an age balance in the workforce, personal and professional dignity, intergenerational fairness and standardising retirement age in the public service.
9. The judgment proceeded to hold that, though the mandatory retirement age was discriminatory, this discrimination was justified on the basis of a number of legitimate objectives that were analysed and set out in the judgment:
92. On the basis of the CJEU authorities I am satisfied that the aims of the mandatory retirement measure identified by the Respondent in evidence as including forward planning (for retirement, for recruitment and for promotion), making way for younger people, personal and professional dignity, achieving an age balance, intergenerational fairness and consistency are policy aims which fall within the broad discretion of the State and are legitimate aims within the meaning of Article 6(1) of the Framework Directive. These aims have already been endorsed by the CJEU in a number of cases.
10. Application for leave to appeal was made out of time, with no reasons indicated on this application for the delay.
11. Counsel for Seamus Mallon submit that the compulsory retirement age for sheriffs is incompatible with EU law, as is the alleged failure on the part of the respondent to review this age. Such discrimination, it is contended, is contrary to the 2000 Directive, and that the historical setting of the age of retirement at 70 supports this proposition, as it was established in 1945, prior to the introduction of Directive 2000/78/EC. It is also asserted that a clarification as to the validity of such retirement ages would impact other similarly-situated office-holders, though the Minister submits that this is not the case, and that the matter in fact impacts only on a very small number of public servants – sheriffs exclusively.
12. It is also contended on behalf of Seamus Mallon that it is in the interests of justice to ensure that the requirements of EU law in relation to mandatory statutory retirement ages are clear and applied appropriately. The applicant seeks an order of certiorari quashing the decision of the Minister, a declaration that the retirement age is incompatible with the 2000 Directive, and an order that damages are to be recovered by Seamus Mallon. A direct appeal from the High Court is sought to this Court on the basis that a Court of Appeal hearing would not allow for a further “netting down” of the points raised in this application. A priority hearing is also sought on the basis that the impugned decision has resulted in Seamus Mallon’s removal from active work in the public service
13. The respondent State parties submit that the grounds put forward on behalf of the applicant do not raise matters of general public importance, and instead focus on the individual characteristics of the applicant and a small cohort of other sheriffs exclusively. It is contended by the Minister that the judge was correct in upholding the mandatory retirement age on the basis that the Oireachtas, in setting such an age, acted within the boundaries of discretion afforded under the Directive on the basis of an appropriate means of obtaining an objectively justified arrangement as to the equality of workers.
14. The respondents include a cross-appeal as to whether the decision of the Minister which forms the basis of Seamus Mallon’s application was capable of being subject to judicial review. The Minister contends that this decision was in effect a decision against introducing new legislation to amend the 1945 Act, thereby prohibiting judicial review of such a decision. That competence is said to be exclusively outside the judicial sphere. Furthermore, it is asserted by the Minister that the trial judge erred in not rejecting the proceedings where the applicant had not pursued a claim of discrimination before the Workplace Relations Commission pursuant to the Employment Equality Act 1998.
15. In determining that the High Court did have jurisdiction to hear the challenge by way of judicial review to the decision of the respondent as to altering the mandatory retirement age where no challenge was initially brought to the Workplace Relations Commission, Phelan J held:
69. I am satisfied that the constitutional order under which the High Court is vested with full original jurisdiction in and power to determine all matters whether of law or face, civil or criminal and extending to the question
16. It is the view of this panel that the issues presented by the appellant’s claim as to the compatibility of a statutory mandatory retirement age with EU equality law, are such as to warrant the grant of leave to appeal. The points outlined below, subject to further refinement, raise matters of general public importance which are likely to arise in the case of other public service jobs with mandatory retirement ages, and therefore meet
the constitutional criteria set out under Article 34.5.4°. The court does not consider the Workplace Relations Commission meets the test in the Constitution.
17. It is the view of this panel that the issues presented by the appellant’s claim are such as to warrant the grant of leave to appeal. In so concluding, we note the comments in the panel decision in The Revenue Commissioners v. Karshan Midlands Ltd. T/A Dominos Pizza [2022] IESCDET 121 at [18]. For a direct appeal to this Court from the High Court it is necessary to establish, under Article 34.5.4° of the Constitution, that the decision involves a matter of general public importance or that the interests of justice necessitate such a further appeal, but also that there are exceptional circumstances warranting such a direct appeal. Where a discrete legal issue, or cluster of issues, is identified for appeal from a High Court decision which is of such a nature that, even with the benefit of refinement of analysis before the Court of Appeal, the nature of the issue or issues for determination is such that there is an inevitability, or strong probability, of the case going further to this Court, an exceptional circumstance warranting a direct appeal may thereby be established. Any such direct appeal must, as well, meet the constitutional requirements of general public importance or interests of justice although it may be likely that any case raising such issues would independently satisfy this test. This case meets these requirements.
18. Accordingly, the decision of the panel is that the application be granted a direct appeal and that such appeal, subject to case management, should centre on these issues:
1. Is a national measure such as s.12(6)(b) of the 1945 Act which provides for a mandatory retirement age of 70 compatible with Council Directive 2000/78/EEC, as transposed into Irish law by the Employment Equality Act, 1998 (as amended)?
2. Is there a test of compatibility required in assessing the validity of mandatory retirement ages; and if so what factors are validly to be considered, such as age, health, or other indicia?
3. Can such mandatory limits be set in relation to defined groups based on general probabilities of age, health and competence, as opposed to individual characteristics on an individualised assessment?
4. Does the decision of the Minister not to amend the statute, which forms the basis of this application, constitute a decision amenable to judicial review or is such a decision not justiciable within the courts?
And it is hereby so ordered accordingly.