No. 223/06

IpsofactoJ.com: International Cases [2006] Part 13 Case 7 [SCIre]


SUPREME COURT OF IRELAND

Coram

Re Sec. 3, European Convention

on Human Rights Act 2003;

Paddy Doherty

- vs -

South Dublin County Council

MURRAY CJ

DENHAM J

McGUINNESS J

FENNELLY J

MACKEN J

31 OCTOBER 2006


Judgment

Justice Fennelly

  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 IR 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.”

  18. 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;

  19. 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.

  20. 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.

  21. 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.

  22. 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.

  23. 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 ....

  24. 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.”

  25. 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.

  26. 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.

  27. 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.

  28. 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 v An Bórd Pleanála [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.

  29. 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 Co (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.

  30. 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.

  31. 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.

  32. 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.

  33. 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.

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

    Justice Macken

  35. This is an appeal by the second and third Respondents seeking to set aside the judgment and Order of the High Court (Quirke, J.) made on the 22nd May 2006. By that Order the learned High Court judge granted The Equality Authority (“The Authority”) leave to appear as “amicus curiae” in proceedings being brought by Mr. and Mrs. Doherty against the Respondents.

  36. In the main proceedings, the Applicants, who are old age pensioners and members of the Travelling Community seek a declaration that the Respondents’ failure to ensure that the Applicants are provided with a centrally heated, insulated and internally plumbed caravan, is:

    1. in breach of the first and second named Respondent’s obligations under the provisions of the Housing Acts 1966-2004, read in light of Section 3 of The European Convention on Human Rights Act 2003;

    2. in breach of Section 3 of that latter Act;

    3. in breach of certain articles of the Constitution;

    4. in breach of Section 6 of The Equal Status Acts 2000-2004; and

    5. in breach of Council Directive 2000/45/EC.

  37. They also seek consequential relief by way of an injunction and/or a mandatory order to compel the provision of such accommodation, as well as damages. Further, they seek a declaration that the Second and Third Appellants have failed properly to transpose the provisions of the above Council Directive, and damages in respect of that alleged failure. It is fair to say that the real basis of the Applicants’ claim is that they have been discriminated against because they are members of the Travelling Community.

  38. The First Respondent has, by its Notice of Opposition, joined issue with the Applicants in respect of all of the claims made. The second and Third Appellants also oppose the Applicants’ claim, but they add further grounds, raised as preliminary grounds. They plead that the claim for relief in respect of the alleged breaches of the Constitution, of the European Convention on Human Rights Act, 2003 and of the Housing Acts, as well as the breach of Council Directive 2000/04/EC do not lie in judicial review but rather must be brought by plenary summons. Moreover they plead that the claim for breach of the Equal Status Acts cannot be maintained either, since relief for the same is provided for by the redress scheme laid down in those enactments. No arguments were advanced to this court as to the consequence for the proceedings of these defences.

  39. Neither Mr. and Mrs. Doherty, nor South Dublin County Council has taken an active part in the oral hearing of The Authority’s application in the High Court, nor on this appeal.

    The Application of The Equality Authority

  40. The only eventual objection against the making of the order sought by The Authority in The High Court appears to have been based on the argument that it does not have any statutory “power” to act as amicus curiae in legal proceedings of the type envisaged here. This is unfortunate in my view because it has resulted in a rather narrow and sterile argument before this Court, and more importantly it has, in reality, masked the interrelationship between the statutory role of The Authority within the legislative framework which created it and which governs its powers, functions and operational mechanisms, and the precise role it seeks to take on in the present proceedings, and in respect of which there is and has been a remarkable absence of information. In fairness to counsel for the Appellants, my concerns arose from the explanations on the proposed role of The Authority given to this court in the course of exchanges during the appeal.

    Preliminary

  41. In light of the foregoing, I should state at the outset that I have considerable reservations about the consequences of the limited scope of this appeal. I am not persuaded that the question of the appointment of an amicus curiae in proceedings before a trial court is correctly reflected by the very broad principle contended for, namely, that such appointment is solely a matter for the inherent jurisdiction of the Court in question, and that the court so appointing has a wide discretion to appoint a party by way of amicus curiae, which discretion should be used sparingly. Nor, I am afraid, do I accept that this flows from the judgment of the Supreme Court in H.I. v The Minister for Justice, Equality and Law Reform [2003] 3 IR, at p.197. There was, in fact, no argument by any of the parties in that case on the role of an amicus curiae at trial level or as to the principles of law to be applied to such an application. The judgment itself takes great care to limit its comments to the role of an amicus curiae even one seeking to promote a partisan position at appellate level, and I note the Supreme Court’s marked hesitation to make any statement in respect of the equivalent role at trial court level. While there was, according to the judgment, no debate before the court on any issue, even on the role of amicus curiae at appellate level, I believe the court’s approach stems from an analysis of the position arising according to United States and Australian case law referred to in the judgment.

  42. By contrast with such a contended for principle, the position at trial court level is very different indeed, both in the United States and in Australia where the role of amicus curiae has been well established for some time. Although also not debated before this Court on this appeal, I adopt the same approach as in that earlier judgment, and make some references to the position in those jurisdictions. Firstly, it is long accepted that an amicus curiae does not become a party to the proceedings. Not being entitled to become a party, such an applicant is in reality a stranger to the proceedings, in the legal sense. Provision is found in both jurisdictions, in their legislative framework, for rules governing applications to plead in such a role and the jurisprudence in that regard is well established.

  43. Even when it can be said that the inherent jurisdiction of the High Court or of the Supreme Court, on appeal, is very wide in such matters, the question of the actual role and function of an amicus curiae who wishes to adopt a partisan role at trial court level at first instance has not yet been the subject of any detailed debate before our courts. A consideration of the types of situations in which an amicus curiae has been appointed by the English courts and in some Irish courts, is found in the case of O’Brian v P.I.A.B., (unreported, The High Court, December 2004), but it was not necessary in that case to consider the principles to be applied in the case of an applicant seeking to play a partisan role. It is noteworthy that in his ex tempore judgment, Finnegan, P. makes particular reference to the fact that the Applicant’s own claim against the Respondent was, at the time of the Law Society’s application, already settled.

  44. In those jurisdictions where an amicus curiae is more common, the amicus remains at all times a “friend of the court”. Of significance, I believe, is the long established jurisprudence, well considered also in academic writings, that a clear distinction is drawn between an amicus curiae at appellate level, and at trial court level. This distinction is of utmost importance. Courts, at least where proceedings are adversarial, do not as a rule act to assist one party in proceedings against another party, either by running the case, or by taking steps to appoint strangers to the litigation who in turn seek to assist one party to “win” over another. This is why, even though the role of amicus curiae over the years has become more partisan than was originally the case, that partisan role may be accepted at the final appellate level but not at trial court level. This is best and longest established, it is true, in the jurisprudence of the United States, but that jurisprudence has also been adopted as being correct by the Federal Court of Australia since 1988. In that regard I refer to a brief extract from the seminal case of United States Tobacco Company v Minister for Consumer Affairs [1988] 83 A.L.R. 79, referred to by Keane C.J. in H.I. v the Minister for Justice Equality and Law Reform, supra. In the Australian case, the decision of the majority, refusing leave to the applicant to appear as amicus curiae, stated, in relation to the distinction:

    In Leigh v. Engle (1982) 535 F Supp 418 Leighton J., in refusing leave to a Secretary of Labor to take part in the proceedings before him, said at p.420-2:-

    Historically, then, an amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and whose function is to advise in order that justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another .... Indeed, if the proffer comes from an individual with a partisan, rather than impartial view, the motion for leave to file an amicus brief is to be denied, in keeping with the principle that an amicus must be a friend of the court and not a friend of a party to the cause.

    It is true that in the appellate levels of the federal judiciary ‘the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy’. Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694 704 (1963). For example, the Supreme Court makes no pretense of disinterestness on the part of 'its friends'. The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented.' Krislov, supra at 704; see Universal Oil Products Co. v. Root Refining Co., 328 US 575 (1946). .... This shift in traditional amicus curiae practice may be useful in a reviewing court where, usually, only issues of law are resolved; it is not proper in a trial court. (emphasis added).

    In Mines v. Olin Corporation (1 June 1988, unreported), McNamara J. delivering the opinion of the Appellate Court of Illinois, First District, Third Division, said:-

    We acknowledge, as stated in the Leigh case, that to a certain degree, amicus practice has moved from friendship to partisanship. The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented.' (Leigh v. Engle citing Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale LJ 694 (1963).) Notably, the Leigh court explained that although this shift in traditional amicus curiae practice may be useful in a reviewing court where, usually, only issues of law are resolved, it is not proper in a trial court. 535 F Supp 417, 422.

  45. In the dissenting judgments of Kirby, J. in the Australian cases cited by Keane C.J. in the H.I. v The Minister for Justice, Equality and Law Reform, supra, the basis for his proposing to accede to the applications was because the High Court in Australia, the court in question, was the final appellate court.

  46. The above extracts are relevant in my view in the context of the present case. In the exchanges between the bench and counsel for the Authority as to the role which the Authority seeks to play in the proceedings, counsel stated that this would be dependent upon the directions of the judge in the trial court. On being pressed further, he accepted that The Equality Authority would be putting forward argument in support of the position of the Applicants in the proceedings. In other words, it would be partisan in its contribution, a position which, at least on the well developed jurisprudence on the issue in other jurisdictions, is confined, for good reason, to argument before appellate courts where the issues are legal in nature.

  47. This important distinction as established in the United States and as adopted in Australia was expressly recognized by this Court in H.I. v The Minister for Justice Equality and Law Reform, supra, as is clear from the following extracts from the judgment of Keane, C.J.:

    As the experience in other common law jurisdictions demonstrates, such an intervention is particularly appropriate at the national appellate level in cases with a public law dimension.

  48. Indeed, in the latter case it was stated that the applicant, the United Nations High Commissioner for Refugees, only seeks to appear as amicus curiae before appellate courts. And further, in contradistinction to the position in the Supreme Court in that application, which was specifically limited to a point of law of particular public importance, the judgment states:

    It is not necessary to consider the circumstances in which it would be appropriate for the High Court to appoint an amicus curiae.

  49. Having regard to the foregoing jurisprudence, I reserve my final views on the appropriate principles to be applied to an application for the appointment of an amicus curiae who wishes to exercise a partisan role in adversarial proceedings at first instance, to a future case where a full debate on the issue may occur. The establishment of the appropriate principles may be of some importance, because, in endeavoring to come to a better understanding of the role of The Authority, I noted from its own website that it has secured a further order to act as amicus curiae, also in High Court proceedings. The Authority may, therefore, wish to be heard either as a general rule in cases in which it is interested or in other cases of which this Court is at present unaware, and the principles may apply equally to similar applications by other parties.

    The Decision of the High Court

  50. According to the ex tempore ruling of Quirke, J. in the High Court, he stated:

    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 in that regard.

  51. On the issue of powers, he found that the power invoked was incidental or consequential upon The Authority’s express statutory powers, referring to the long title to the Act of 2000, and having regard to its “role” in legal proceedings.

    The Argument of the Appellant

  52. The Appellants argue that, on a correct construction of the legislation, which is the only source for its power, The Authority does not have the legal power to act as “amicus curiae”. They submit that the statutory scheme establishing The Authority makes it clear that its powers in relation to court proceedings arise only in very narrow circumstances. In consequence, save for these circumstances – which are dependent upon the commencement of proceedings within the legislative scheme, The Authority has no other role in legal proceedings before the High Court. It contends that the decision in A. G. v Great Eastern Railway Company [1880] 5 App Cas 473 invoked by The Authority, cannot assist it, as there is no express power existing in The Authority to which the appointment as amicus curiae is “reasonably incidental”, an essential prerequisite for the application of the principle established in that case. The Appellants also argue that, while that A.G. v Great Eastern Railway case, supra. was considered by the House of Lords in England in the more recent decision of Re Northern Ireland Human Rights Commission [2002] UKHL 25, that case does not assist The Authority either, but rather is to be correctly understood as supporting their objection, since it was decided primarily on the basis that an express power existed, to which the power to be appointed as amicus curiae was reasonably incidental. Finally, they contend that the relevant powers of The Authority, not being express, have to be gleaned from the terms of the legislation and are therefore merely implied powers. In such circumstances, it is not possible to have further implied powers grafted onto them under the above principle. On the contrary, these Respondents invoke the judgment in Keane v An Bórd Pleanála [1997] 1 IR 101 in support of the argument that the power contended for cannot be found in the legislation.

    The Legislation

  53. Since the dispute between the parties is as to interpretation, it is necessary to examine the legislation establishing The Authority and from which it derives its powers. It would be fair to say that the legislative framework governing The Authority, found in three Acts, namely, the Employment Equality Act 1998 (“the Act of 1998”), the Equal Status Act 2000 (“the Act of 2000”) and finally the Equality Act 2004 (“the Act of 2004”) is not characterised by ease of comprehension. The Acts suffer from some lack of clarity, arising partly from the fact that the final effective version, namely the Act of 2004, is found by means of a series of amendments to parts of the Act of 1998, itself already amended by the Act of 2000, and also from the fact that some at least of the functions of the Director of The Authority, as well as the some at least of the jurisdiction of the Labour Court, have now been transferred to The Equality Tribunal.

  54. Although established by statute, neither the “objects” of The Authority nor its “powers” are found expressly in the legislation. Instead what are found are sections in the several acts which refer to “functions”, which on a proper reading can properly be considered to be “objects”, in the normal company law or statutory undertaking sense. Ordinarily in company law one would find the objects of a company set out in its Memorandum of Association, and its powers in its Articles. It is frequently the case with statutory corporations or undertakings of this nature, however, that both are found in the legislation establishing them.

  55. The functions/objects of The Authority are, in the main, to promote equality between persons, originally in the field of employment. The Act of 1998 was enacted also to transpose provisions on equal pay and equal treatment found in two long established European Community Directives, 75/117/EEC and 76/207/EEC. The Act of 1998 also established procedures for the investigation and remedying of various acts of discrimination as defined in the Act of 1998, such as those based on age, sex, religion, etc. These included discrimination arising within the sphere of “employment” in the broadest sense, by virtue of a person being inter alia, a member of the Travelling Community, as defined. The Act of 2000 expands the objects or functions of The Authority and, of particular relevance to this case, was adopted to promote equality and prohibit discrimination in connection with, inter alia, the provision of accommodation to which the public has access. The final Act of 2004 adopted a legislative scheme which separated out discrimination arising in what might properly be described as the “employment” area, on the one hand, and all other areas of discrimination on the other hand, with appropriate legislative provisions mirrored in each of the Parts of that Act applicable to employment, or to all other areas.

  56. Insofar as the relevant functions/objects of The Authority are concerned for this appeal, these are most clearly found in Section 39 of the Act of 2000 in the following terms:

    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;

  57. To find the powers of The Authority to achieve those functions or objects, as opposed to the functions themselves, one has to look at the several Acts to glean what they are, since there are no express powers in the legislation, save in relation to raising finance. A consideration of the combined effect of the three Acts makes it clear that certain powers relevant to the issue before this court are readily capable of being found. In all three Acts there are common characteristics making up the legislative scheme for dealing with acts of discrimination. All provide

    • firstly, for redress (originally through the Director and his specialist officers, or the Labour Court – now, it must be assumed, through the Equality Tribunal) and for an appeal to specified courts, in certain circumstances.

    • Secondly, this redress is instigated primarily by a person making a reference, called the complainant, or in certain circumstances, by The Authority itself, in which case The Authority is treated as if it were a complainant. As part of the redress provisions, The Authority can itself conduct an Inquiry. Consequent upon such an Inquiry, it may make recommendations to the appropriate Minister, and it may serve what is called a “non-discrimination notice” where it has been determined pursuant to the legislative scheme that discrimination has occurred, or is occurring.

    • Thirdly, where a person seeks assistance from the Authority in taking any “proceedings” as defined in the Acts, in respect of which redress is available under the Act, and where the case involves an important matter of principle, The Authority may provide assistance (i) in making the reference, and (ii) in any proceedings resulting from or arising out of the reference.

    • Fourthly, there is provision for the enforcement of decisions made under the legislative scheme by the making of orders and by invoking the assistance of courts in respect of the same. Such enforcement is primarily at the instigation of a complainant. In default however, The Authority, but only with the consent of the complainant, may invoke the enforcement remedies. In certain circumstances The Authority can, after a decision has been made in favour of a complainant, apply to court for an injunction if it is in a position to establish that the discrimination found to exist pursuant to the legislative scheme, is likely to continue. Although not expressed as powers, I am satisfied that these provisions are capable, without straining any of the language used, to be considered to be powers of the type natural to the framework provided for under the combined Acts, for complaints, redress and enforcement in respect of discrimination.

  58. Before leaving the Acts, it is also appropriate to mention “proceedings” as defined in the legislation upon which the Appellants also rely in arguing that it has a limited meaning. In the Acts of 1998 and 2000 “proceedings” were defined as “including” referrals and investigations under the Acts. However, in the Act of 2004, there is a significant change. In that Act is found the following in the definition section:

    “proceedings” means

    (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.

    [emphasis added]

  59. This change in my view has to be considered to have been a deliberate change on the part of the Oireachtas to the definition of proceedings, and is one which clearly limits the meaning of “proceedings” as previously defined in the earlier Acts. I note that provision is made by s.38 of the Act of 2004 for a special burden of proof to apply in such proceedings.

    The Case Law

  60. The issues dividing the parties are not confined to the question of the interpretation of the aforesaid legislation, but include also differences as to the applicability of case law. It may seem extraordinary that since both parties rely on the same provisions of the legislation and on the same case law, that they are so far apart, save that a consideration of the cases referred to discloses that these have themselves been determined in light of particular circumstances, legislative or otherwise, and do not necessarily lend themselves to a common view as to their meaning or applicability.

  61. It is a fundamental tenet of the law relating to incorporated persons, such as companies or bodies incorporated pursuant to statute, and sometimes overlooked, that they do not have all the powers of an individual. They only have the powers vested in them by statute. It is true that to overcome this limitation, case law initially made clear that, at least in so far as third parties dealing with such bodies were concerned, their powers were not to be considered to be so limited so as to render it unduly difficult for such parties to obtain remedies against those companies or undertakings. This was the rationale behind the older jurisprudence. Nowadays, of course, legislative intervention, both at national and European Community level, has made more clear precisely what powers a company may have, and the requirement for the application of the principle of a “reasonably incidental” powers is no longer so acute. But it does not follow that the powers of a company and more so of a statutory undertaking not always covered by that recent legislation are no longer of significance. In the areas of borrowing, of directors’ relationships with companies, of pensions, and so forth, the limitations on those powers are still of very great importance.

  62. What is common case between the parties here is that, for the purpose of assessing whether The Authority enjoys the power which it invokes, it is appropriate to discern an express power from which the claimed reasonably incidental power may be implied. This was established in the case of A. G. v Great Eastern Railway Co, supra. a case in which the issue concerned whether, as against a third party, a particular power sought to be exercised by a railway company was ultra vires its powers. It was held that:

    The doctrine of ultra vires .... is to be applied reasonably, so that whatever is fairly incidental to those things which the Legislature has authorised by an Act of Parliament, ought not (unless expressly prohibited) to be held as ultra vires.

  63. In that case the majority of the court held that in fact the power to do what the company wished to do was expressly permitted, but would have been, in any event, implied, as being reasonably incidental to that express power. It is important to note, however, the care which the House of Lords took to distinguish clearly between the “objects” of a company and its “powers”. The express power which the company was held to be entitled to rely upon was worded as follows:

    The two companies may enter into agreements with respect to the working, maintenance, and management of the Extension railway .... and any other matters incident to the carrying out of the purposes of this Act.

    And:

    The directors of the T. and S. Company and the directors of the two companies, respectively, may (subject to the sanction of the shareholders) enter into any contracts or agreements for effecting all or any of the purposes of the this Act, or any objects incidental to the execution thereof ....

    The various judgments in that case make it clear that what was being sought to be done was clearly not extraneous to the express powers, not the objects, of the company, as contained in the legislation, and were in any event clearly reasonably incidental to them.

  64. In the present case, The Authority argues that the matter is put beyond doubt in any event, by both the decision of the Supreme Court in H.I. v The Minister for Justice Equality and Law Reform, supra., and the decision of the House of Lords in the case of Re Northern Ireland Human Rights Commission supra. I have very considerable difficulty in agreeing with the proposition that this is so. As to the first of these, the court was not dealing at all with the issue of powers. That case was, as earlier mentioned, one in which the application was made exclusively in the context of an appeal to The Supreme Court on a point of law of public importance. In the judgment of the Court, Keane, C.J., reserved to another date “the circumstances in which it would be appropriate for the High Court to appoint an amicus curiae”, having referred to the Australian and American cases I have mentioned in the preliminary part of this judgment. And, as also mentioned previously, there was no debate at all about any issue in the proceedings. It is therefore in my view incorrect to consider that the Supreme Court in that case made any general statements as to when and in what circumstances, the appointment of an amicus curiae should be permitted in circumstances apart from those then before the Supreme Court. What can be discerned from that judgment is that the question of the appointment of an amicus curiae before the Supreme Court in an appeal on a point of law is one which is within the inherent jurisdiction of this Court, to be exercised sparingly, and that by permitting an amicus curiae brief in that case, the court did not consider that this would lead, in consequence, to any “floodgate” effect.

  65. As to the second of the above referred to decisions, Re Northern Ireland Human Rights Commission, whereas at first glance some of the judgments in that case appear to adopt a rather broad approach to the appointment of an amicus curiae, a closer consideration of the judgments in my view does not bear this out. The issue for consideration arose in the context of an application by the Northern Ireland Human Rights Commission (“the Commission”) for leave to appear at an inquest, (accepted by all of the Law Lords as being proceedings which were “judicial in nature”). This was refused and that refusal was upheld upon an application to the High Court in Northern Ireland. The judgment of Carswell C.J. found that the Commission had not been invested with a statutory power to intervene or act as amicus curiae in legal proceedings. That decision was also upheld by the Court of Appeal. The Commission then appealed to the House of Lords, which overturned those decisions and held that the Commission did have such power.

  66. In his judgment, the approach found in A. G. v Great Eastern Railway, supra., is adopted by Slynn, L. when he examines and combines the express powers found in several sub sections of the Act in question before coming to the view that the powers contended for are reasonably incidental to the express powers found in those subsections. It is worth citing what he says, namely:

    More specifically in relation to the courts the Commission is empowered by sub-s (3)(a) to give assistance to individuals in accordance with s.70 where proceedings involving the law and practice relating to human rights in Northern Ireland are involved, and where the Commission considers that a question of principle is involved or where there are special circumstances in which the Commission thinks it appropriate to provide assistance. Such assistance may take the form of legal advice, representation or any other assistance.

    Even closer to the question now raised is the provision in sub-s (5)(b) that the Commission may ‘bring proceedings involving law or practice relating to the protection of human rights’ though that provision does not enable proceedings to be brought on the ground that legislation or an act is incompatible with a Convention right unless the Commission would be a “victim” for the purpose of proceedings brought in the European Court of Human Rights.

  67. All the Law Lords considered it necessary to examine the Act in detail, and the relevant sections vesting powers in the Commission in particular, in order to determine whether, in fact, the Act conferred express powers to which an implied power could actually be considered to be reasonably incidental. In the judgment of Lord Woolf, he too concentrates on these express powers of the Commission in stating:

    Bearing in mind these greater powers I regard it (as) inevitable that the more limited powers to intervene should be regarded as implicit.

    The judgment of Lord Hutton is also based on a thorough analysis of the line of authority as to the same applicable test, that is, whether the powers are reasonably incidental to an express power, and he finds that they are. He states:

    But I consider that a more liberal interpretation leads to the conclusion that where Parliament has expressly authorized the Commission to assist an individual to bring proceedings in respect of human rights and to bring proceedings itself, it is incidental to those powers for the Commission also to have the power to intervene in proceedings where a human rights issue arises and where the court permits it to intervene.

    [emphasis added]

    Lord Hobhouse, dissenting, treats the functions and the powers separately, pointing out that while the functions may be quite wide, the powers may not always be what the Commission believes them to be, and may require the Commission to address the Secretary of State by way of recommendation on them.

  68. I consider this latter approach to the separation of functions and powers as being the proper approach in the context of companies or statutory undertakings, and it has been so over many years. It is of particular relevance in resolving the issue before this court. While Slynn, L. appears in one part of his judgment to treat powers and objects as being somewhat the same, I would not read his judgment as indicating that the required and normal distinction between the two does not apply or that the test is not longer that found in the case of A.G. v Great Eastern Railway, supra. I consider that the decision of the House of Lords in this case is best understood by reference to the traditional test, namely, the existence of the express powers found in Sections 69 and 70 of the relevant Act in that case, to which the contended for power was held to be reasonably incidental.

  69. Functions or objects have never, in law, been treated so as to equate them with powers. If it were the case that a company or an undertaking established by statute merely had to point to its functions or objects, or to its “role”, in order to be deemed at law to have all of the powers incidental to those functions or objects or roles, there would simply be no need to examine its express powers to see whether other powers sought to be invoked were reasonably incidental to the express powers granted for the purpose of achieving the objects or functions. The several judgments in the latter case and the earlier cases make it clear that this is not so.

  70. In the present case, there are functions or objects set out in the Act of 1998, and further functions or objects founds in s.39 of the Act of 2000. Those cannot, in my view be considered to be express, or even implied, powers of The Authority. For the purpose of achieving those objects/functions however the legislature has granted The Authority certain powers. It follows from the recitation of the functions and relevant powers in the legislation earlier in this judgment that The Authority has very particular and specific objects in terms of the promotion of equality, and more circumscribed, but nonetheless specific, limited powers in relation to the achievement of those objects.

  71. Having regard to the conclusions which I have drawn from the jurisprudence cited above, I am of the view that the most apt principles to be applied in the present case are those found in the case of Howard v Commissioners of Public Works [1994] 1 I.R. and in Keane v An Bórd Pleanála, supra., which follow the line of authority established in A.G. v Great Eastern Railway, supra. In the first of these cases the question which arose for consideration was whether the Commissioners of Public Works had a power to construct a visitors centre. Costello, P. held that they did not, stating:

    Can it be said that a power to build a public amenity in the form of a visitors’ centre is incidental to any of the powers conferred on the Commissioners by any of the Public Works Acts to which I have referred or any of the special Acts conferring specific powers? I do not think so. Nor can any such power be said to be consequential on any of the relevant statutory powers which have been conferred on the Commissioners. Nor can a power to manage a visitors’ centre be said to be incidental to or consequential upon any of the relevant statutory provisions. The Commissioners are forced, therefore, to submit that the court should imply a general statutory power to confer public benefit by the erection of public works of the kind with which we are concerned from the wide variety of specific public works which parliament has authorised the Commissioners to erect and maintain. But I do not think that that is a permissible method of statutory construction. If all the existing statutes relating to the Commissioners were consolidated into one statute the court could not imply a general power to provide public amenities merely from a series of sections conferring a number of distinct specific powers.

    I must therefore hold that the Commissioners are at present acting ultra vires their powers ....

  72. In the second of the cases the issue concerned the construction of a particular type of beacon and a determination as to whether this came within the ambit of the express powers including those concerning the construction of beacons, granted to the Respondents in the legislation, or could be considered as being reasonably incidental to those express powers. The majority of the Supreme Court found that the power to do so did not come within any express power, and neither was there a power which could be considered as being reasonably incidental to any express relevant power. The principles to be applied as a result of both cases are the same. If not expressly authorised by legislation to an undertaking or company, or not reasonably incidental to what is expressly so authorised, it is prohibited and not within the ambit of its powers.

  73. The powers of the Authority in the legislation, I conclude, can be divided into two categories. As for proceedings within the Acts themselves, it has power to assist a complainant in prosecuting his complaint or request, before the appropriate authority, presumably now The Equality Tribunal. Where it is unlikely that a complaint will be made or pursued, its role is to make the complaint itself, in which case it is, according to the legislation, treated as if it were itself a complainant. As to its power to become involved in proceedings before the courts, that is the second category. It may do so before the appropriate court, by acting in the place of, and with the consent of the complainant who has succeeded before The Equality Tribunal, or it may seek an injunction where a complaint of discrimination has been established within the legislative scheme and where it is proven to the satisfaction of the court that that discrimination has or is likely to continue. As a result, within the legislative framework, The Authority operates as a type of prosecutor or, in the case of enforcement, as an alternate moving party in proceedings where the main right to recourse to court lies with the successful complainant.

  74. I conclude from the foregoing that the effect of what The Authority is now seeking, when considered together with its acknowledgement that it will be arguing for a position in support of that of the Applicants, is to have the persons who would be complainants if a complaint was lodged pursuant to the Act of 2004, together with their “alter ego”, namely The Authority, acting as co-Applicants in the judicial review proceedings. It is not in my view appropriate to find that both a complainant and The Authority are, in consequence of the limited powers vested in the latter, entitled to a joint or double role in legal proceedings before the High Courts. The Authority does not have that double role in relation to any proceedings within the legislative scheme itself. Indeed I consider such an approach to be the opposite to what is intended by the powers actually vested in the Authority by the legislation. A role as amicus curiae cannot in my view be considered as being reasonably incidental to any of the powers granted to the authority even when categorising what appear to be implied powers as sufficiently express for the purposes of this application.

  75. In the foregoing circumstances I would allow the appeal and set aside the order made in the High Court.


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