Appeal No 296/05

IpsofactoJ.com: International Cases [2009] Part 11 Case 10 [SCIre]


SUPREME COURT OF IRELAND

Coram

The Equality Authority

- vs -

Portmarnock Golf Club

Hardiman J

Geoghegan J

Fennelly J

Macken J

3 NOVEMBER 2009


Judgment

Justice Hardiman

  1. This is a case with a very narrow focus, but it is no less important for that. The reason for the narrowness of the issues is the significant measure of agreement between the parties, which however leaves a well defined area of very strong contention between them.

  2. The narrow focus of the case as it was argued turns on one issue, which essentially raises a point of statutory construction. It is this: is the Portmarnock Golf Club entitled to rely on the exception created by s.9(1)(a) of the Equal Status Act, 2000 in order to take it out of the category of “discriminating club” as that term is used in s.8 of the same Act? The meaning of these Sections will be discussed in some length below. But it is important to make one point here at the very outset. It is this: s.9 permits clubs for specific groups of the community (men, women; gay people; travellers; married people; single people; people holding a particular religious belief; people holding no religious belief, people suffering from a disability; people of a particular nationality; people of a particular ethnic origin) to exist, and to exclude other people, and to be registered as clubs, provided that their “principal purpose is to cater only for [the needs of the group in membership]”. Each of these groups is treated by the Act on a footing of strict and indeed absolute equality with all of the others. Thus, there is strict equality between men and women, gays and heterosexual people, between one religion and another and between members of all religions and persons who have no religion and between each of the named groups and all the others. Accordingly, the logic of a judgment which says that Portmarnock Golf Club may, or may not, avail of the statutory exception will apply precisely to any other exclusive club within s.9. For example, if Portmarnock is entitled to succeed on this appeal brought by the Equality Authority, then so too would a womens’ club, or a gay club, or a travellers’ club, or an Ethiopians’ club, with the same sort of rules.

  3. The club which is a defendant in the first above entitled action is a gentlemens’ golf club. All parties agree that this is perfectly legal: this is the first significant agreement in the case. There is a constitutionally recognised right to freedom of association. At least in the private sphere one may associate with whom one likes and need not associate with those with whom one does not wish to associate. Thus, one may have a ladies' club, a gentlemens’ club, a gay club, a Catholic club, an Africans’ club and so on. And if one forms such a body, one may exclude from it those who do not meet the basic criterion for membership. Thus, a man may be excluded from a ladies' club and so on. This is the immemorial position at law, and is also agreed by all parties. This is the second significant area of agreement.

  4. The Equal Status Act 2000 does not alter this position. But, by s.8, it introduces the concept of a “discriminating club”. The nub of this case raises the single question: is Portmarnock a “discriminating club”? A club may become a discriminating club in a number of ways but the most relevant is if “it has any rule policy or practice which discriminates against a member or an applicant for membership”. Thus, any registered club (and not just a Golf Club) which was exclusively a ladies club, or a gentlemans’ club, a gay club or an Africans club would on the face of it be a discriminating club. This is a third area of agreement.

  5. But even if a club is “a discriminating club”, that fact in no way renders the existence of the club, with its discriminating rules, unlawful. This is also agreed. No attempt is made in the Equal Status Act or anywhere else to do this, perhaps because it is feared that to do so would be unconstitutional; see the annotation to the 2000 Act in “Statutes Annotated” discussed below. What the Act does provide is that an application may be made to the District Court for a determination that a club is a discriminating club. The sole consequence of a finding that a club is a discriminating club is that its certification of registration under the Registration of Clubs Act 1904 as amended is suspended for a stated period. If the club maintains the rule or practice which makes it a discriminating club, it will not be able to renew its certificate at all.

  6. This regime applies only to clubs registered under the Registration of Clubs Act, 1904: it has no effect whatever on clubs which are not so registered. The sole effect of the declaration that a club is a discriminating club is to prevent the club from making alcoholic drinks available to its members. A punitive form of prohibition is enforced on “discriminating clubs”, but they can continue to discriminate. This is the fifth area of agreement.

  7. The club considers that this is a strange state of affairs. It is perfectly legal to be, or to be a member of, a discriminating club and the right of a citizen to associate in a discriminating club is constitutionally protected. But if one avails of this undoubted right one becomes subject to what the Equality Authority describes as a “significant sanction” or penalty: the inability to make alcoholic drink available to the members of the club. The club says there is no other context in which one can be subjected to a legal penalty for acting in a manner which is perfectly legal. This is an aspect of the case which may, or may not arise for consideration in the second above entitled action, the constitutional claim, depending upon the result of the first.

  8. Indeed, if the effect of the Act of 2000 were limited to that summarised above, the constitutional claim would be the club’s only recourse. There is significant Irish case law to the effect that one cannot penalise or disadvantage a person with a view to persuading him or her to waive, or not to exercise, a constitutional right.

  9. But the full effect of the Equal Status Act, 2000, is more complicated than that so far discussed. Section 9 of the Act effects a considerable limitation on the sort of club which can be considered “a discriminating club”. The text of this Section may be summarised as saying that a club is not to be considered a discriminating club, notwithstanding the terms of s.8, if

  10. its principal purpose is to cater only for the needs of –

    (i)

    Persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

    (ii)

    Persons who are members of the traveller community, or

    (iii)

    Persons who have no religious belief,

    it refuses membership to other persons.

  11. The club’s primary defence to the Authority’s claim is that it falls within this exclusion. It is agreed, sixthly, that the nature of s.9(1)(a) is that it is a proviso, cutting down or limiting the scope of s.8.

  12. The nub of the case

  13. It will be seen immediately that s.9 positively permits a registered club to maintain its registered status (and thus the right to make alcohol available) if its principal purpose is to cater only for the “needs” of one of the twelve groups mentioned in s.9. This list of groups is a broad one and permits, for example, exclusive clubs (that is, clubs which exclude certain people from membership) for persons of a particular gender (i.e. ladies or gentlemen), sexual orientation i.e. gay or “straight”, religious belief, such as Catholic, Protestant or Jewish etc. or, on the other hand, lack of religious belief, marital status (i.e. a club for single or married persons, or husbands or wives), family status, nationality or ethnic or national origins, and members of the travelling community (though not of the settled community).

  14. With the exception of this last category, the Section is carefully non-discriminatory, treating mens’ clubs and ladies’ clubs, gay clubs and “straight” clubs, Catholic clubs and Jewish clubs etc., all alike.

  15. It appears from the note on the Equal Status Act, 2000 in the excellent “Statutes Annotated” series that s.9 in its present form became part of the present Act (which itself is a revised version of a measure of the same title of 1997 which had been found unconstitutional on a reference under Article 26 of the Constitution), because of fears that, without such a provision, the interference with the right of free association constituted by s.8 might lead to that Section’s being declared unconstitutional. This view is more fully discussed below, as are other aspects of the annotation.

  16. The very first exempted category, “persons of a particular gender” would appear to take any ladies club or gentlemens club out of the category of “discriminating club”. This, clearly, was a major obstacle in the way of the Equality Authority when it sought to have Portmarnock Golf Club condemned as a discriminating club. But the Authority has advanced an argument of considerable intricacy and ingenuity, which is at the heart of the first above entitled action.

  17. The Authority emphasises the introductory words of s.9(1)(a) of the Act of 2000 (“if its principal purpose is to cater only for the needs of ....”). On the basis of this form of words, the Authority agrees that s.9(1)(a)(i) would certainly permit the existence of a club exclusively for ladies or for gentlemen. But, the Authority says, it would not permit the existence of, for example, a ladies book club or a gentleman’s golf club. This is because, says the Authority, books, or golf, are not a “need” of persons of either gender considered only as persons of that gender and omitting all other individual characteristics. The authority says it is necessary to do this because the structure of the Section means that the “needs” must be a need of the exempted category (gender etc., homosexuality, traveller status) “as such”. This appears to imply that the “need” must be a need of all men, women, travellers etc. Many ladies may take an interest in the reading and criticism of books, and many gentlemen in golf or vice versa. But neither activity is so marked a characteristic of either gender as to make it a “need” of persons of that gender as such. “Needs”, the Authority further argues, relates solely to absolute necessities, like air, food and water and not to social, cultural or recreational preferences, however central or important to an individual they may be. This, they say, is the literal meaning of the word, and golf is not within that meaning. Therefore, said the Authority, the club is not within s.9. Therefore, it is a discriminating Club under s.8. In consequence of that, in the light of the Act, the members must lose the right to consume alcohol on the Club premises. That is the Authority’s case. The Attorney-General dissents as, of course, does the Club. That is what the case, as argued on this appeal, is about.

  18. Before turning to the substance of these matters, it is necessary to explain certain preliminary and procedural aspects of the case, which has taken on a somewhat complicated form in terms of the pleadings and the decision of the High Court.

  19. Preliminary and procedural matters

  20. The first above entitled action concerns an attempt by the plaintiff, which is a statutory body, to impose the unique sort of sanction described: – a penalty for doing something quite lawful – above on the defendants (who are a registered Club and those responsible for its management), because the authority feels obliged by the terms of the Act to disapprove of the nature and constitution of the Club and considers that it is a “discriminating Club” within the meaning of a statute considered at length below. The High Court found against the authority and this is their appeal. In the course of this judgment it will be necessary to consider the nature and the history of the Equal Status Act, 2000, and of certain other transactions and measures as well. It will become clear that the actions raise very fundamental questions to do with the constitutional rights of citizens to associate with one another, and the powers of the State to regulate, penalise, or discourage such association and cognate matters, including the right to associate for purposes disapproved of by the political establishment, or by the “great and the good” in Government, the media, the quangos and elsewhere.

  21. The second above entitled action, in which the Club’s trustees are the plaintiffs and the Equality Authority, the State and the Attorney General are defendants, is the Club’s challenge to the constitutionality of certain portions of the Equal Status Act, 2000. However, this issue of the statute’s constitutionality will arise only in the event of the Equality Authority’s construction of s.9 of the Act being upheld by the Court. As we shall see, the High Court has rejected that construction but the learned trial judge nevertheless went on to make certain “comments” on the constitutional issues. These matters are set out in more detail below.

  22. Interpretation consistent with the Constitution

  23. In the ordinary course of events, many of the constitutional considerations mentioned above would arise only in the constitutional action. However, in resisting the Authority’s appeal from the High Court judgment, the Club has relied on the proposition that, having regard to the constitutional guarantee of freedom of association, set out below:

  24. .... the right of freedom of association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it. (per McCarthy J. in NUJ v Sisk [1992] 2 IR 171).

  25. This submission was construed by the Attorney General (paragraph 4 of his submissions) as “the invocation of the double construction rule by the Club” and, says the Attorney, it requires him to deal to some extent with the interpretation of certain Sections of the Act. This is a matter of some importance because, as will be seen, the Attorney General’s interpretation of s.9 of the 2000 Act in light of the Constitution is not the same as the Equality Authority’s. He does not share the view that a Ladies Golf Club or a Mens’ Book Club is ipso facto outside the scope of s.9.

  26. Accordingly, I have thought it appropriate to set out later in this judgment, before construing s.9, one or two aspects only of the constitutional context in which the facts of the present cases and the details of the statutes referred to must be considered. These provisions are the inescapable context of every part of this case. But in the first action, their importance is limited to their effect on questions of construction.

  27. (C) The statutory framework: context and detail

    (i)

    A striking omission

  28. The origin of this case is the Equality Authority’s objection to the fact that Portmarnock, by its rules which are more fully quoted below, restricts membership to “gentlemen” who can comply with the rules of amateur status. The Club is, the court was told, one of only two Golf clubs in Ireland who limit their membership in this way but it is a matter of such concern to the Authority that, rather than leaving the members alone to work out their own salvation, or to using their statutory power to evolve a Code of Practice, they instituted proceedings against the Club and others in the District Court. This is all the more surprising in view of the fact that the Equality Authority itself appears to be in obvious and unexplained breach of its own obligations under the statutory regime.

  29. This must be explained in some little detail before considering the rest of the statute.

  30. Section 56 of the Employment Equality Act, 1998 allows the Minister to require the Authority to prepare a draft code of practice in certain circumstances. This duty on the part of the Authority is couched in mandatory terms (“the Authority may, or if requested to do so by the Minister shall prepare for submission to the Minister draft codes of practice ....”).

  31. The Equal Status Act extended this provision to the context of that Act. Shortly after the passage of the Equal Status Act the Minister wrote to the Authority (23rd June, 2000) under the heading “IMPLEMENTATION OF THE EQUAL STATUS ACT, 2000: GENDER EQUALITY AND GOLF CLUBS”. The letter stated that the area was a complex one and that “the position of women in golf clubs generate a particular controversy ....” and said that many golf clubs “operate dual structures with separate streams for men and women”. The Minister requested the Authority to draw up a code of practice on this issue.

  32. As mentioned above, the Authority would appear to have been statutorily obliged to comply with the Minister’s request. This was not contradicted by the Authority. It appears simply to have ignored this legal obligation. No such code was produced prior to the commencement of the proceedings or, as far as the court is aware, since.

  33. This point was trenchantly made on behalf of the Club and is more than just a debating point. It is, in my opinion, quite extraordinary for a public body (especially in times of economic difficulty) to put the taxpayers to the expense of litigation, and to expose others to it, when it has manifestly ignored its own duty to produce a Code which might have avoided litigation. Furthermore, the Authority’s breach of statutory duty has the significant consequence that the Minister has not had the opportunity of approving or disapproving a code of practice in relation to gender in golf clubs. Nor is there any reason to assume that the Minister would adopt the Authority’s interpretation as put forward in this case: the Attorney General did not adopt the interpretation of s.9 of the Act by the Authority either in the High Court or on appeal.

  34. (ii)

    Single Gender associations and clubs

  35. It is perhaps not surprising in view of the legal and constitutional citations set out elsewhere in this judgment that the Irish statutes do not in fact attempt to outlaw all discrimination in the membership criteria of private clubs or associations. The reason for this may be that ordinary social life, here and abroad, provides myriad examples of voluntary associations which cater exclusively for persons who originated in a particular place, whether in Ireland or abroad, or who are of a particular gender (ladies clubs; certain book clubs; sporting associations or groups whose members who are of a particular sexual orientation). There are groups which cater to the needs of persons who meet two or more of these criteria such as the gay mens’ Rugby Club, “Emerald Warriors”. Rugby, of course, is not a “need” of gay men as the Authority understands that term. It is not easy to think of any game or sport which is a “need” of gays, men or women “as such” as the Authority would have it.

  36. To those un-attracted to golf, book clubs, or other forms of single gender association the prevalence of such bodies may seem strange. But that is not the test for the resolution of the present case. Strange or not, there are an enormous number of exclusively single gender bodies and there is some reason to believe that their number may be increasing. For example, in the Irish Times for Friday 4th March, 2005, Finola Meredith wrote an article entitled “Wanted: Single-Sex zones for our Sanity”. She canvassed the question “.... as equality gradually gains force and impetus, will it become even more vital to preserve places where the sexes can stay separate, reaffirming their essential differences?”

  37. She quotes Joanna McMinn, of the National Womens’ Council of Ireland who is said to think that “women only spaces offer an essential forum”.

  38. She also quotes Mona Gardener the Dublin Federation President of the Irish Countrywomens’ Association, a body which (the court was told on the hearing of this appeal) is associated with the registered club entitled to serve alcohol at the Association’s premises is in Co. Louth, as saying “It’s still important for women to get together to have space and time for themselves.”

  39. The largest and longest established womens’ group, the Irish Countrywomens’ Association (1910) has for its objects “to bring women together in fellowship and through co-operative effort to develop and improve the standard of rural and urban life in Ireland ....” Is this, one wonders, an activity of “women qua women” in the Equality Authority’s eyes? Would a similar organisation for men pass muster?

  40. She again goes on to describe the activities of Voca Loca, an “all-women cappella singing group based in Belfast”.

  41. She concludes by pointing out that single gender groups have attracted certain critcism:

  42. Yet it is evident that many women and men experience times in their lives when the company of their own sex provides a measure of comfort, solidarity or stimulation that can’t be found elsewhere.

  43. In fact, it would appear that the number of all-women groups is hugely greater than the number of all-male groups. There are, for example, said to be only two all-men (or all “gentlemen”) golf clubs in Ireland. But almost any directory provides pages of womens’ associations. There are networking associations for women in business, an association for women graduates and associations for women lawyers and even women judges. There can be little doubt that these bodies are, if they wish, legally entitled function on a single-gender basis. On another level, if one Googles “all-women book clubs,” one gets 1,400,000 (one million four hundred thousand) “results”. This, too, is perfectly legal.

  44. There is, of course, an extremist point of view which considers that whereas all-women groups should be permissible, all-male groups should be banned. An example of this stern and discriminatory point of view in a legal context is Rhode, Association and Assimilation (1986/1987) 81 NW ULR (North Western University Law Review) 106. Whatever the merits or demerits of this view (and it is certainly, manifestly and unashamedly an authoritarian one), the fact is that it has no basis or purchase in Irish law because, as will be seen in the citations from the statute, the Irish emphasis is on gender equality and the Act of 2000 which will mostly be under discussion treats of discrimination, and is not concerned to mandate reverse discrimination, whether for constitutional or other reasons.

    (iii)

  45. Whatever the reason for it, the fact is that there is no prohibition on the establishment on clubs or associations whose membership is limited to persons of a particular gender. Instead, the first above-entitled action raises in particular a question of the interpretation of s.9(1)(a) of the Equal Status Act, 2000. This is a complex provision, appearing in a complex portion of the statute, the Equal Status Act, 2000.

  46. Section 9 is part of a three section portion of the Act, Sections 8 – 10 inclusive, which is addressed to clubs and in particular to clubs registered under the Registration of Clubs Act, 1904 – 1999. For practical purposes, the purpose of registration under those Acts is to permit the service of alcoholic drink on club premises. Section 8 of the Act permits a declaration by the District Court that a club is “a discriminating club” if, relevantly:

    1. It has any rule policy or practice which discriminates against a member or an applicant for membership, or

    2. A person involved in its management discriminates against a member or an applicant for membership in relation to the affairs of the club.

  47. By reasons of the definition Section of the Act (s.2), the verb “discriminate” means to discriminate within the meaning of s.3(1) or s.4(1) of the Act. Readers are referred to those provisions, and it would be otiose to set them out here. It will however be observed that s.3(2) sets out a number of specific grounds of discrimination including “the gender ground”, “the marital status ground”, the “family status ground”, the “religion ground”, the “age ground”, the “disability ground”, the “ground of race”, and the “traveller community ground”.

  48. Returning to s.8, a person may apply to the District Court for that court to make a determination as to whether a club is or is not a discriminating club. The court may make an order determining whether or not the club is a discriminating club. The consequences of this order are set out in subsection (7)ff of the Section: if it is the first such order the court is required to order suspension of the club’s certificate of registration for a period not exceeding thirty days. But if it is a subsequent order the Club will not be entitled to renew its certificate of registration at all. It will be subjected to a punitive form of Prohibition.

  49. The strikingly limited nature of this provision will be apparent. Firstly, it has no application whatever to clubs that are not registered clubs, for the purpose effectively of making alcoholic drink available. The draftsman appears to be saying, “We can’t stop you running a single gender Club, but we will try to arrange that you won’t enjoy it”, a strikingly puritanical attitude. Secondly, the Act nowhere prohibits the continued activity of a discriminating club: it may discriminate as much as it likes if it is prepared to refrain from making alcohol available. These aspects, however, as the Authority says, are the responsibility of the legislature. The next matter, which is the central topic for the court’s attention, is the terms of s.9 of the Act of 2000. Section 9 creates an exception to the broad power contained in s.8. Section 9(1) provides as follows:

  50. (1)

    For the purposes of s.8, a club shall not be considered to be a discriminating club if –

    (a)

    If its principal purpose is to cater only for the needs of –

    (i)

    Persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

    (ii)

    Persons who are members of the traveller community, or

    (iii)

    Persons who have no religious belief,

    it refuses membership to other persons.

    [emphasis added]

  51. The effect of this Section was at the heart of the argument on the hearing of this appeal. A number of things are obvious about the Section, taken in its statutory context. Firstly, it permits a club to escape a penalty, and stigmatisation as a discriminating club, if its “principal” purpose is to cater “only” for the “needs” of varied categories of the community who are the subject of the list of “discriminating grounds” set out above and previously listed in s.3.

  52. Thus, to take some grounds at random, the Act stigmatises discrimination between two persons on the ground that one is male and one is female. This is, by statute, to be referred to as “the gender ground” but, by s.9, a club will not be a discriminating club if its “principal” purpose is to cater “only” for the needs of persons of a particular gender.

  53. Similarly, one may not discriminate between persons on the grounds that they are of different sexual orientation. This, by statute, is to be referred to as “the sexual orientation ground”. See s.3(2). But, by s.9, a club will not be a discriminating club simply because its “principal” purpose is to cater “only” for the “needs” between persons of a particular sexual orientation.

  54. Strikingly, one may not discriminate between persons on the basis that they are “of a different race colour nationality or ethnic or national origin.” This, by statute is to be known as the “ground of race”. See s.3(2). But a club will not be a discriminating club, as a result of s.9, if its “principal” purpose is to cater “only” for the needs of persons of a particular nationality or ethnic or national origin.

  55. Just as strikingly, s.3(2) prohibits discrimination against persons on the grounds of their religious beliefs (“the religion ground”) but a club will not be discriminating if it is to cater only for the needs of “persons who have no religious beliefs”, or who have a particular religious belief. Such a Club may discriminate by excluding all others.

  56. On the hearing of this appeal counsel for the respondents, the Club, Mr. Donal O’Donnell S.C., gently mocked these provisions and pointed to certain aspects of them alleged to be ridiculous. Counsel for the Appellant Authority, Mr. Frank Callanan S.C., expressed his resentment at this and pointed out that the provisions of the Act were not the work of the authority but of the legislature and that the authority had to implement the Act as it stood. This is perfectly true. But the interaction between Sections 3, 8 and 9 is a subtle, complex and sometime surprising one. It appears to me to come down to this: one cannot discriminate on the ground, for example, of religious belief or the lack of it between two applicants for members of a club. But one can have a club whose principal purpose is to cater only for the needs of people of a particular religion or, on the other hand, of people who have no religious belief at all. In that latter event, one not merely can, but (as the Authority sees it) one must, exclude any applicants who have a religious belief because, to benefit from the exemption contained in s.9 one must as a principal purpose cater “only” for the needs of “persons who have no religious beliefs”. Similarly, one may not discriminate between applicants for membership of an association on the ground that one is, and one is not, a member of the travelling community. But one may have a club whose principal purpose is to cater “only” for members of the travelling community, which clearly requires that one should exclude persons who are not such members because if even a small number of the members are not travellers the Equality Authority may take the point that the club does not cater “only” for the needs of travellers.

  57. The tensions between the sections mentioned seem to me to be at their greatest in relation to discrimination of ground of “nationality or ethnic or national origin”. The correlative of this, in s.3(2) is “the ground of race” set out in s.3(2)(h). By virtue of this, one cannot discriminate against a person by comparison with another person on the basis that “they are of different race, colour, nationality or ethnic or national origin”. But the exempting Section permits one to discriminate by having a club whose principal purpose is to cater only for the needs of persons of a particular nationality or ethnic or national origin. There is no exemption on the ground of race. The precise distinction in practice between “race” and “ethnic origin” is not clear to me but fortunately does not arise in the present case.

  58. In this case, no individual has come to Court complaining about Portmarnock Golf Club or its constitution, which confines membership to “gentlemen”. But the authority made an application to the District Court under s.8, for a declaration that the club is a discriminating club, which is how the matter comes to be litigated. The authority were successful in getting a declaration that the club was a discriminating club in the District Court but the club successfully appealed by way of case stated to the High Court on this issue: the High Court held that the club was not a discriminating club by reason of the terms of s.9. From this latter determination the authority has taken an appeal to this court. Separately, Mr. Cuddy and Mr. Keane who are members of the club have commenced a constitutional action. The details of these separate actions will be considered below. The first, and perhaps the only, issue before the court is whether or not Portmarnock Golf Club is entitled to the benefit of s.9 of the Act of 2000.

  59. (D) Statutory history

  60. The present Act is a revised version of a Bill of the same title of 1997 which was referred to the Supreme Court by the President of Ireland pursuant to Article 26 of the Constitution. Both the Employment Equality Bill 1996 and the Equal Status Bill 1997 were found to be unconstitutional. See Re The Employment Equality Bill 1996 [1997] 2 IR 321 and Re The Equal Status Bill 1997 [1997] 2 IR 387. In part the finding of unconstitutionality related to a provision for vicarious liability which would have exposed an employer to a prison sentence of several years duration in respect of discriminatory conduct by an employee of which he neither knew nor approved. According to the learned authors of the “Statutes Annotated” note on the present Act, s.9 was “intended to protect rights of freedom of association, the government having been advised by the Attorney General that the previous provisions does not sufficiently protect such rights”. The example given was that, in the absence of the present s.9(1)(a), the Freemasons, not being a religious body, could not avail of the previous protective measure. But the Freemasons, in the view of the annotators, “is a body which was set up to encourage interpersonal bonds of a fraternal nature and is thus par excellence a body of individuals who are exercising their constitutional rights of freedom of association”. Thus, it was said “it would be extremely difficult to justify in law a refusal to renew the Freemasons certificate of registration which is based, not on any drink related ground, but on a refusal to admit women”. The passage continues:

  61. The same logic extends to many other groups – lesbian and gay organisations, the ICA (Irish Country Womens’ Association), Traveller groups – who might well wish to exclude members of a particular category. There is no rational basis on which to suggest that such groups do not enjoy the same rights as others to drink together in the privacy of their own club.

  62. The note continues:

  63. This exemption therefore safeguards the right of freedom of association, by providing an exception from s.8 to clubs which have as their principal purpose catering for one particular class of persons.

    Structure of the Equal Status Act, 2000

  64. Firstly, the long title of the Act is as follows:

  65. An Act to provide 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 an investigating and remedying certain discriminations 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 to related matters.

    [emphasis added]

  66. The bulk of the Act deals with matters other than clubs. Though the structure of the Act is complex, and little has been done to simplify it, certain structural aspects are identifiable. Section 4 deals with discrimination on the ground of disability. Section 5, which is the first Section of general application, prohibits discrimination in the provision of goods or services to the public generally. But this prohibition is subject to a number of exceptions and qualifications. Section 5(2)(f) permits differences in the treatment of persons on the basis of gender, age, or disability, or on the basis of nationality or national origin in relation to the provision or organisation of a sporting facility or a sporting event, to the extent that the differences are reasonably necessary to the nature of the facility or event and are relevant to the purpose of the facility or event. It may be important to note the basis on which such “differences” are not permissible: these are the balance of the “grounds of discrimination” other than those mentioned above viz. marital status, family status, sexual orientation, race or colour or membership of the travelling community. These aspects are mentioned here because of their possible relevance to the respondent club in the present proceedings, which is a mens or “gentlemens” golf club.

  67. The Club

  68. According to the Authority’s submissions, Portmarnock Golf Club was established in 1884. Under the rules (Rule 3) the members of the club:

  69. .... shall be gentlemen properly elected and who shall conform with the rules of amateur status, for the time being prescribed by the Royal and Ancient Golf Club of St. Andrew’s.

  70. They are, according to the same source, 626 members and 625 associate members of Portmarnock Golf Club. It is thus clearly a private club and not a pubic or commercial body.

  71. Although women may not, according to the rules of the club, be members, they may play golf at the Club with or without a member on identical terms to those applicable to male non-members. There is thus no discrimination in the Club’s dealings with the public. This action concerns alleged discrimination in the Club’s private, internal arrangements.

  72. From the rule quoted it is clear that members must be men, who are in a position to comply with the rules of the “Royal and Ancient” on amateur status, as widely recognised by golf clubs throughout the world. It is clear that the principal activity in the club is the playing of golf, though the playing of golf is not positively required of a member who might for example wish to be a social member of the club or might maintain his membership after he had for age or other reasons ceased to play golf.

  73. Central Issue on the Statute

  74. The authority submitted that the key issue in the case is whether the club can avail of the exception provided in s.9 and I agree that this is so, in relation to the first action herein, that initiated by the Equality Authority. The authority contends that the club is not within s.9 because its principal purpose is not to cater “only” for the “needs” of persons of a particular gender. On the contrary, says the authority, the purpose of the club is to play golf or (more correctly) to provide facilities for the playing of golf, which cannot be described as catering for the needs of one gender only, or as a “need” at all.

  75. The proceedings

  76. On the 10th June, 2003, the Equality Authority issued a Civil Summons in the District Court. The respondents to this were the club and its various officials and officers. This came before the District Court on the 28th November, 2003 and subsequently on the 19th January, 2004. In it the plaintiff claimed a determination that the Portmarnock Golf Club was a discriminating club for the purpose of s.8 of the Act and an order suspending the registration of the club for a period not exceeding thirty days. It also sought an order for costs against the Club.

  77. On the 20th February, 2004, District Judge Collins made the determination that the club was a discriminating club. Reasons for this decision were given on the 20th February, 2004, concluding:

  78. The principal purpose of the club is to play golf. The ordinary words of the terms of the statute do not ascribe to mens golf as a special need (sic). A literal approach is appropriate in this case and therefore cannons of construction are not needed. I propose to rely on the presumption of constitutionality.

  79. On the 11th June, 2003, Messrs. Cuddy and Keane, the trustees of the club issued proceedings against the Equality Authority, Ireland and the Attorney General, claiming a declaration that the club was not a “discriminating club” and in the alternative, a declaration that if the club is correctly considered to be a discriminating club, then the provisions of Sections 8, 9 and 10 of the Equal Status Act are invalid, as being inconsistent with the Constitution. These are the second proceedings in the title to the present case, and were clearly by way of reaction to the proceedings stated by the Authority.

  80. Subsequently, on the 10th September, 2004, the club appealed to the High Court from the decision of District Judge Collins by way of Case Stated, “being dissatisfied with her decision in point of law”. In June, 2005 O’Higgins J. delivered a judgment on the case stated in which he upheld the club’s submissions as to the construction of s.9 of the Act of 2000. However, notwithstanding this decision, and the fact that the club’s claim to unconstitutionality was specifically conditional upon the authority’s construction of the Act of being upheld, the learned trial judge nonetheless proceeded to express his view on the constitutional issues as well. The reason why he did this are set out at p.22 of the judgment. He acknowledged that it was “unnecessary” to decide the case on constitutional grounds and there is ample authority that in those circumstances “that the court should not do so”. But he went on to say that “in deference to the arguments made in this court and for the purposes of expedition in the event of a different conclusion being made elsewhere, I consider it appropriate to make some comments on the constitutional arguments”. These were comments addressed to the constitutional repercussions of a finding that the interpretation contended for by the Club “were not accepted by the court”.

  81. The “comments” on the constitutional issues in fact constitute the bulk of the judgment, twenty-four of its forty-six pages being devoted to the constitutional issue.

  82. The High Court Order

  83. The relevant portion of the High Court Order is as follows:

  84. IT WAS CONSIDERED AND ADJUDGED that the said judge of the District Court was wrong in point of law in her determination and order set out above.

    THE COURT DECLARED that by reason of the provisions of s.9 of the Equal Status Act 2000 the Portmarnock Golf Club shall not be considered a discriminating club for the purposes of s.8 of the Equal Status Act, 2000 and ordered accordingly.

  85. The court went on to order that the plaintiff in the case stated (the authority) pay to the defendants their costs when taxed and ascertained and that the plaintiffs in the second-named action (the club and its officials) pay to the State its costs of the constitutional Action.

  86. It thus appears that, although the learned trial judge discussed at length the constitutional arguments, no order was made as to the constitutionality of the statutory provisions, though an Order for the costs of this issue was made.

  87. Following this decision, the Equality Authority by an undated Notice of Appeal appealed to this court “against that part only of the judgment and order of the Honourable Mr. Justice O’Higgins of the High Court which judgment was delivered on the 10th June, 2005 and which order was made on the 15th June, 2005 and perfected on the 26th July, 2005. Mr. Justice O’Higgins gave judgment on the appeal by way of case stated from Mary Collins, Judge of the District Court pursuant to s.2 of the Summary Jurisdiction Act, 1857 as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961 [being the section of the judgment entitled ‘interpretation’] at pp6 to 22 of the judgment”.

  88. Although this notice is not strictly grammatical, it is clear that the appeal of the authority is limited to the learned trial judge’s determination on the interpretation of s.9. In light of this appeal by the authority, the club and its officials by Notice of Appeal dated the 19th August, 2005 appealed “from that part of the judgment and order of the High Court (Mr. Justice O’Higgins) delivered the 10th June, 2005 in which, not withstanding its judgment and order on the issues of interpretation of Sections 8, 9 and 10 of the Equal Status Act, 2000, the court proceeded to consider and deliver judgment on the constitutional and other arguments raised by the plaintiffs in relation to the validity of the 2000 Act and rejected the plaintiffs challenge to the validity of those provisions having regard to the provisions of the Constitution”.

  89. In the alternative, the club contended that the judgment should be varied “having regard to the filing by the Equality Authority of the Notice of Appeal from the interpretation section of the judgment. The club contends that the learned trial judge ought not to have proceeded to consider the constitutional issues.

  90. I have set out the foregoing history of the proceedings in order to explain the somewhat complicated position which now arises in relation to the two portions of the High Court judgment. It is appropriate to resolve the appeal by way of case stated before deciding what is to be done in light of the two notices of appeal. Neither party appeared to dissent from this approach.

  91. (E) The High Court decision on the interpretation of the statute

  92. The learned High Court judge observed, at page 7 of the judgment, that:

  93. It is not in dispute that Portmarnock Golf Club comes within the s.8(2)(ii) and is subject to the provisions of s.8 of the Act as being a ‘discriminating club’ unless it falls within the exemptions provided for in s.9.

  94. He then proceeded to set out and summarise the effect of the provisions of s.8 of the Act. He then, at p.8 of the judgment, quoted a media statement issued to the Press by the Equality Authority drawing attention to the launch by it of the District Court proceedings as follows:

  95. There are separate and distinct provisions of the Act in relation to clubs which hold [a] certificate of registration under the Registration of Clubs Act. The Equal Status Act, 2000, does not render unlawful discrimination in registered clubs. Registered clubs are allowed to discriminate and male only clubs are allowed. The Equal Status Act, 2000, does however impose a significant sanction in relation to such clubs”.

  96. It may be observed that it is a very partial statement of the law to say that “male only clubs are allowed”. That statement is true but it is also true, but not said, that female only clubs are allowed as are gay or lesbian only clubs, traveller only clubs, clubs limited to persons of a particular ethnic or national origin, and clubs limited to persons without religious beliefs as well as other exclusive clubs. It is also significant that the Authority, in the statement it later issued to the media after the District Court case, proclaiming its victory, described the consequence of a finding that a club is a discriminating club as “a significant sanction”. On the hearing of this appeal, the authority conceded again that the determination that a club was a discriminating club, and the consequences of that decision for its certificate of registration, were in the nature of a penalty.

  97. What Clubs are within s.9?

  98. The learned trial judge then set out the relevant terms of s.9(1)(a) of the 2000 Act and continued as follows:

  99. In effect, the Section exempts clubs from the provisions of s.8 of the Act in certain circumstances. The major issues in these proceedings involve the interpretation of s.9. In particular both parties argued as to the correct interpretation and meaning of the [phrase] ‘principal purpose’ in that Section. The plaintiffs on behalf of Portmarnock Golf Club argue that the principal purpose of the club is to cater only for the needs of persons of a particular gender that is male golfers. The club refuses membership to any other persons. They contend that on a proper construction of s.9 (1)(a) of the Act the club is not and should not be considered to be a discriminating club for the purposes of s.8 of the Act of 2000. The District judge rejected this argument and held that because the principal purpose of the club is to play golf it did not fall with any of the exemptions provided for in s.9 of the Act. The interpretation of s.9 is the core of the case made by the plaintiffs.

    .... It is important to note that the Equal Status Act, under s.8, specifically exempts from being ‘discriminating clubs’, certain single gender clubs thus any assertion that it is somehow impermissible to have a male only or female only club is not an issue having regard to the specific provisions of the Act. The question therefore is not whether the legislation permits single gender clubs – it manifestly does – but whether the Portmarnock Golf Club is one of the type of single gender clubs envisaged by s.9 of the Act.

    [emphasis added]

  100. The learned High Court judge then, at page 10 of the judgment, summarised the contentions made on behalf of the Authority, and those made on behalf of the Attorney General, which were somewhat different. He said:

  101. It is submitted on behalf of the Equality Authority, however, that there must be some logical nexus between the objectives of the club and the category of persons catered for in order for the s.9 exemption to apply. In the case of a single gender club it is argued that there must be a logical connection between the gender and the objects of the club. The Equality Authority also submits that the words are clear under the principal purpose of a golf club is clearly not to cater for the needs of persons of a particular gender but rather to play golf. On that basis the s.9 exemptions do not apply to the plaintiffs. It is also submitted that the playing of golf does not constitute a ‘need’ of men, therefore a golf club cannot be said to be catering for the ‘needs’ of men as is required to come within the exceptions provided for by s.9 of the Act.

    The Attorney General adopts a somewhat different approach to exemption from the provisions of s.8. It is conceded by him that a gentlemens club or ladies club – and not only those confined to those whose objects had a logical connection with male or female – could be exempt from the provisions of s.8. It is difficult to see how a ladies club or a gentlemans club might be exempt from the provisions of s.8 while a gentleman’s golf club or a ladies golf club cannot avail of such exemptions.

    [emphasis added]

  102. The learned High Court judge considered it “instructive and helpful” to ask what kind of single gender clubs are contemplated by the Act as falling into the exceptions specifically provided for in s.9. He pointed out that the learned District judge did not address this issue. He continued:

  103. Although the Equality Authorities submitted that there must be a logical connection between the objects of the club and gender, it is significant that the court was not provided with any example of an existing club of that type. No convincing example was given of any theoretical club which might fall within the definition contended for by the Equality Authority.

  104. This position continued to obtain on the hearing of this appeal. Indeed, it was a feature of the case that the Equality Authority could not provide either an example of an existing club, (other than “perhaps” the Freemasons) which would fall within the exception. Mr. Callanan S.C. however submitted that it was unnecessary that there should be any existing or even any imaginable club which falls within the exception: the legislature may have been providing for some theoretical future development. Mr. Callanan also said that the club had equally failed to give an example of a single gender club which would fall outside the exemption, though it occurs to me that a club which quite explicitly, according to its own constitution, had an obligation as a principal purpose to cater for needs other than those of the members might do so.

  105. Meaning of “needs”

  106. The judge said that the Equality agency had adopted the finding of the District Justice that “the ordinary words of the statute do not ascribe to mens golf a special need” and that “the golf club did not cater for the needs of men”. He said:

  107. [This] would in my view be readily acceptable were the definition of the word ‘needs’ to be construed very narrowly to mean only ‘requirements’ but the definition as set out in the District Court decision also extends to ‘that which is wanted’- a much broader and less stringent criterion than ‘requirements’. It is in my view an unduly stringent interpretation of the word ‘needs’ and would render quite meaningless the s.9 based exemption in the case of persons of a particular nationality or ethnic or national origin (another category of persons encompassed by the provisions of s.9). It is difficult to see how persons could have different needs based on nationality if the word ‘needs’ were to be construed narrowly as being ‘requirements’. For example, in the case of an Italian national it is difficult to see what his or her requirement referable only to nationality might be that would differ from the requirements of non-Italians if the word ‘needs’ were to be narrowly construed. Indeed counsel for the Equality Authority rightly conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a ‘particular nationality, or ethnic or national origin’ the word needs would have to be construed broadly so as to include the cultural needs of the nationality in question. I agree. However, if the word needs is to be interpreted in such a non-restrictive fashion in relation to clubs catering for persons of a particular nationality, it cannot be given a more restrictive interpretation when applied to single gender clubs in the same Section of the Act. I cannot see how cultural needs fall within the definition of needs in relation to persons of a particular nationality while at the same time the sporting needs in relation to persons of a particular gender would be excluded. There are even those who go so far as to equate sport with culture although – perhaps fortunately – that argument was not advanced in the present case.

  108. The learned trial judge considered and rejected an argument that s.9, if interpreted as the club wished, would deprive s.8 of most of its efficacy. He pointed out that it was a clear purpose of s.9 to exempt some registered clubs from s.8: this exemption was itself part of the statutory scheme. The exemption, on the evidence, extended only to a very limited class of bodies on the evidence and had no effect on the vast majority of clubs. The authority had urged the learned trial judge to adopt a “purposive approach” to the statute in interpreting its provisions. This, said the club, mandated the adoption of a “wide liberal interpretation”. This was an odd submission from a party who needed the narrowest and most rigid interpretation of the term “needs”. The learned trial judge held that such an approach “is of little assistance in the interpretation of the provision of s.9 and in particular in deciding what type of single gender clubs were encompassed by its exemptions .... the principle of equality does not assist in ascertaining which clubs are within the exemption. Considerations of gender equality are of no assistance in interpreting s.9 because the provisions of s.9 apply equally to all single gender clubs and not only to men only clubs .... the Act therefore does not treat men any differently than women and therefore cannot be said to discriminate against women”.

  109. The learned trial judge considered it important that the long title of the Act (set out earlier in this judgment) described it as an Act to prohibit “types of discrimination ....” It was not designed to prevent “all types of discrimination” and in fact by s.9 specifically exempted from the provisions of s.8 clubs which discriminate on gender and many other grounds.

  110. The learned trial judge concluded that the contention of the golf club made for an intelligible reading of s.9(1)(a), which was straightforward and easy to reconcile with the purposes of the Act. It did not undermine s.8 but qualified its provisions in an understandable way in relation to clubs coming within a particular category. He considered it significant that the court has given no example of an existing club which would fall within the exemption provided by s.9 on the Authorities interpretation. Nor was it given a plausible example of any club which, even in theory, would fall within the Authority’s definition. He rejected the authority’s contention as to the meaning of the term “needs” and said that it amounted to reading words into the statute. He concluded (at p.21):

  111. The promotion of equality and the prohibition of types of discrimination – the express purposes of the Act – are legitimate and laudable goals of legislation. The interpretation of s.9 as contended for by the golf club does not in my view in any way undermine those aims, but rather recognises the fact that there is nothing inherently undesirable with persons seeking – in a social context – the society of persons of the same gender or the same nationality or the same religion. In a tolerant and free and increasingly diverse society it is not surprising that the type of exemptions envisaged in s.9 were enacted. As a result of which – in terms of registered clubs – it is permissible to have – exclusively – a bridge club for Bulgarians, a chess club for Catholics, a wine club for women and a golf club for gentlemen. In my view too, the significant omission from the s.9 based exceptions of exceptions based on race and colour serves to reinforce the plaintiff’s argument for their interpretation of the Section”.

  112. On p.22 the learned trial judge specifically held that the principal purpose of Portmarnock Golf Club “is to cater only for the needs of male golfers and therefore comes within the exception to the provisions of s.8 provided by s.9.

  113. Submissions on appeal

  114. On the hearing of this appeal the submissions on behalf of the Equality Agency were very similar to those summarised by the learned trial judge. In certain respects, however, the Authority contended for a more rigid interpretation of s.9(1)(a) than that which it had advanced in the High Court. It reiterated that the term “needs” referred to things which were absolutely necessary and did not extend to catering to the social, cultural or similar preferences of people within the groups for whom discrimination is legitimated by s.9. The Authority argued, as it had to by virtue of the plain meaning of the Act, that a club exclusively for Bulgarians and which could therefore exclude non-Bulgarians, was permitted by the statute but it claimed that the learned trial judge was quite wrong to say that a Bulgarian Bridge Club i.e. a bridge club for Bulgarians was permitted. Bridge was not a “need” of Bulgarians or, presumably, of anyone else. The Bulgarian Club would have to content itself with bringing together Bulgarians. If it had another purpose, such as the playing of bridge (or presumably backgammon, baccarat or bingo) it would cease to enjoy the benefits of s.9 because it would not be catering “only” for the needs of Bulgarians as such. Similarly, a gay mens club would manifestly be within the exemption provided by s.9 but a gay mens Rugby club would not because rugby is not a “need” of gay men "as such", as the Authority interprets “need”. Equally, a ladies club would be quite legitimate and within the meaning of s.9 but a ladies drama club or book club would not be legitimate because the production of plays or the reading or discussion of books is not a need of ladies as such. The Equality Authority went further. A club which openly described itself as a ladies drama club or a ladies book club would loose the benefit of s.9 for the reasons summarised above. But a ladies club which did not so describe itself but which in fact engaged in the production of plays or the reading and discussion of books might become a “discriminating club”, by loosing the protection of s.9, simply because their actual practises, if not their rules, demonstrated that they were catering to needs other than the needs of ladies “as such”. Mr. Callanan was prepared to concede that a ladies club which produced one play in the course of a year or which facilitated the reading and discussion of one book in the course of the year might escape the loss of the protection of s.9 but if it did more than that it would be vulnerable. In other words, said Mr. Callanan, one could indeed arrange to a be a member of a club or association composed exclusively of members of one’s own gender, or sexual orientation, or sharing one’s own absence of religious belief or of the same nationality or ethnic origin as oneself. Furthermore, one could avail of the protection of s.9, thus enabling this exclusive body to make drinks available. But the club could do absolutely nothing more than bring members of the exclusive club together and serve drinks. If, when together, they played indoor or outdoor games, put on a play, discussed a work of literature, had a wine tasting or any of a myriad of such common activities they must loose the protection of the Section because none of these things are “needs” of the gender, racial group, gay or lesbian community as such. That is why, the Authority said, there is protection for a gay or lesbian club but none for a gay rugby club.

  115. This approach seems to me to require the Court to add words to the statutory exception, which I would decline to do. The legislature has specifically not employed the words “as such” on which so much of the Authority’s case is based.

  116. Mr. Callanan emphasised that, in the context of this litigation, it was not for the court, or the club, or even for the Equality Authority, to form or express any view as to whether these provisions were sensible, reasonable, fair or constructive. The authority, he pointed out, did not write the legislation: it had to operate it. It had formed the view that the interpretation set out above was the correct interpretation and that was all that mattered. This was the law which the legislators had produced and it fell to be interpreted according to the ordinary cannons of construction. These, of course, forbid the Court to add words to the Statute.

  117. In the course of argument, Mr. Callanan agreed that the effect of being found “a discriminating club” was to impose a penalty or sanction on the club.

  118. Many Irish statutes, as is well known, may resemble those which have addressed similar problems in other jurisdictions, notably the United Kingdom, or at a broader level notably in the law of the European Union. Mr. Callanan however confirmed that, so far as his client was aware, the present statute has no exemplar anywhere in the world. But it is, of course, an attempt to deal with a particularly Irish dilemma, the reconciliation of a desire to outlaw some types of discrimination with a well established constitutional right of freedom of association, even association on a discriminatory basis.

  119. On the hearing of this appeal, as in the High Court, the Attorney General did not adopt the submissions on the construction of s.9 put forward by the Equality Authority. As recorded by the learned trial judge, the Attorney considered that a ladies book club or a gay rugby club would be permissible under s.9, and did not consider that to avail of the exemption required that the ladies, or the gays or whatever group was in question would have to limit their association to enjoying their own company without enjoying any activity together. But the Attorney emphasised that this matter was not really for him: he was primarily concerned with the constitutional action. But he did not think that a gentlemens’ Golf Club was ipso facto outside s.9, as the Authority did. The High Court judge agreed with him.

  120. (F) Nature of the change in the Authority’s position

  121. The case for the Authority was as subtly formulated and as cleverly and carefully thought out as the nature of the case, and in particular of the statutory provision, permitted. It is thus quite certain that there is nothing fortuitous about the change in the Authority’s position briefly noted above.

  122. The structure of s.9(1)(a) is a unitary one. It provides that exclusive clubs of certain specified kinds (twelve in all) shall not be considered to be a discriminating club simply because, its principal object being “to cater only” for the needs of members of one of the twelve classes set out in subparagraphs (i), (ii) and (iii), it refuses membership to other persons. It would not vitally affect the structure of the Act if there were, for example, only ten or as many fifty categories of persons mentioned in the Section.

  123. In the High Court, the Equality Authority conceded at one stage that in the case of some of these categories – those whose principal purpose was to cater only for the needs of persons of a particular “nationality or ethnic or national origin” the word ‘needs’ would have to be construed broadly so as to include the cultural or recreational needs of the nationality in question. But, it then said, the word should be differently and more rigidly interpreted as it applied to the gender category even though the word “needs” is the same and the gender category is provided in the same Section of the same Act as provides the nationality etc. category.

  124. On the hearing of this appeal, however, it was not submitted that the word “needs” should be more loosely construed in relation to one category of person rather than another. On the contrary it was submitted that it should be rigidly construed in relation to all the categories: no exceptions. Thus, since the Authority wishes to contend that only a gentleman’s club, and not a gentleman’s golf club, is protected by s.9 it is constrained to argue, by the same token, that only a ladies club, and not a ladies book club, and only a gay club, and not a gay rugby club, enjoys the protection of the Section. This it did, thereby avoiding the difficult position of contending (as it did in the High Court) that the same word “needs” in the same Section and subsection of the same Act should be interpreted in a broad way in favour of persons who wished to associate exclusively with people of the same nationality or ethnic or national origin, but in a narrow way, so as to mean something like “absolute necessities or requirements” against those who wish to associate with persons of the same gender. On the other hand, it is this change of position that compels him to argue that a ladies club, like a gentleman’s club, can cater for no need whatever other than the need for single sex association: drama production, literary criticism, or for that matter knitting, flower arranging or backgammon or golf cannot feature amongst the needs of members for which a ladies club may cater, or a gentleman’s club either. This is a view of extraordinary rigidity. I would not adopt it unless compelled to do so by clear words.

  125. (G) CONSTRUING THE SECTION

    Constitutional context

  126. There is, both in Ireland and elsewhere, a rich and somewhat complex body of case law and academic writing on the question of freedom of association. If it becomes necessary to consider the Club’s constitutional challenge to portions of the 2000 Act, then it will be necessary to explore this body of law in considerable detail. However, the Club’s constitutional challenge is expressly pleaded as arising only if the Equality Authority’s construction of s.9(1)(a) of the Act is upheld by the Court. In the event that the Club’s interpretation is upheld, the constitutional issue will not arise at all. In that event, the question of what to do about the High Court judgment and order in that context will be considered later.

  127. It is of course necessary to interpret any statute in a manner which is consistent with the Constitution. In the view which I take of the plain meaning of the statute, it is unnecessary to have regard to the constitutional context, except perhaps in one regard. Accordingly I intend to refer to very little of the well established Irish Case Law on freedom of association. Indeed, I think it is sufficient for present purposes simply to set out the constitutional provision on freedom of association and to quote (literally), a single sentence from one of the leading cases on the subject.

  128. Article 46 of the Constitution provides as follows:

  129. (1)

    The State guarantees liberty for the exercise of the following rights, subject to public order and morality

    ....

    (iii)

    The right of the citizens to form associations and unions

    Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.

    (2)

    Laws regulating the manner in which the right of forming associations and unions and the right to free assembly may be exercised shall contain no political religious or class discrimination.

  130. It will be noted that the foregoing provisions do not purport to create the right to freedom of association but merely guarantee liberty for its exercise. The right to freedom of association is a pre-existing natural right, inhering in human kind by virtue of its rational and social being and is essential to the exercise of various other rights such as the right to engage effectively in political speech, to organise for industrial purposes or otherwise, to take part in elections, to participate in sporting or cultural events, and many more.

  131. The judicial dictum to which I have referred above is from National Union of Railwaymen v Sullivan [1947] IR 77. Expounding Article 40.6 of the Constitution the Court concluded that:

  132. Each citizen is free to associate with others of his choice for any purpose agreed upon by him and them.

  133. The significance of this important finding will become clear when the Equality Authority’s submissions are considered, below.

  134. Interpreting the Section

  135. Following the approach to statutory construction advocated by Mr. Francis Bennion in his classic work on Statutory Interpretation I identify the unit of inquiry for present purposes as s.9(1)(a) of the Equal Status Act, 2000. One then turns to the nature of that provision: it is clearly a proviso cutting down the effect of the terms of s.8 of the same Act, which allows the District Court to make a declaration that a Club is a “discriminating club” in certain circumstances. The mechanism of this proviso is to declare that a Club shall not be considered a discriminating club by reason only of the fact that it refuses membership to persons outside a particular category, if “its principal purpose is to cater only for the needs” of twelve classes of persons. As we have seen earlier in this judgment the first of these exempted categories are “persons of a particular gender”.

  136. In the novel and ingenious argument advanced on the part of the Equality Authority, emphasis is placed on the introductory words of sub-paragraph (a) of the above Section:

  137. If its principal purpose is to cater only for the needs of .... persons of a particular gender.

  138. Since there are only two genders to which a person may belong, the last few words plainly mean that it is quite lawful to have a club which discriminates in those who may be members, if its principal purpose is to cater only for the needs of men or of women. In the first instance one may exclude women; in the second, one may exclude men.

  139. This is a comparatively simple situation compared with that which arises with some of the other exempted grounds. Words like “a particular sexual orientation” equally posits the duality of homosexual and heterosexual. But the provision relating to “a particular religious belief” plainly opens the door to the exclusive social organisation of persons of a potentially enormous number of religious beliefs particularly if variants of the main religions are taken into account. Similarly, “age, disability, nationality, or ethnic or national origin” opens a door to the possibility of a separate social organisation in clubs or societies of an enormous variety of people. On the other hand, the category of “persons who are members of the Traveller community” and are thus permitted exclusive social organisation with alcohol by s.9, are easily identified at least in principle and the last remaining category, “persons who have no religious belief” seem simple and unitary, at least by comparison with the enormous number of individual religious beliefs which may need to be considered.

  140. The second obvious point I wish to make is that each and every one of the categories mentioned above is treated alike in the Act. This is now agreed. The Equality Authority at one point contended that the Act should be differently and more broadly interpreted in dealing with the “nationality or ethnic or national origin” category than in dealing with the others but at the hearing abandoned that argument and now contends, correctly in my view, that each of the categories is to be treated in the same way and the Section interpreted in the same way in relation to each of them. This is quite a significant matter.

  141. Thirdly, it follows from the last proposition – that all of the exempted categories are to be treated in the same way under the Section – that an interpretation which would stigmatise a book club or a golf club exclusively for men as a “discriminating club” would equally stigmatise a golf club or a book club, exclusively for women. To look at this from the other point of view, an interpretation permitting a book club or a golf club exclusively for men will equally permit a golf club or a book club exclusively for women. Moreover, this equality of treatment is not confined to men and women: an interpretation along the lines contended for by the Club would enure to the benefit of a rugby club for gays, a bridge club for Bulgarians, a chess club for Catholics and so on.

  142. Fourthly, it was eventually agreed on the hearing of this appeal that the words which make up Section 9(1)(a) are to be interpreted in their literal meaning, that is their ordinary and natural meaning. The difficulty in the case arises from the fact that, that though both sides were agreed on this, each side came up with a completely different result from applying what it said was the ordinary and natural meaning of the words.

  143. “A logical connection”

  144. The Equality Authority’s argument started from the premise that one could not simply set up any kind of club and claim that it catered only for the needs of men, or of women, of gays or travellers, Africans or Indians, just because one confined membership to one of those groups. On the contrary, said the Authority, there had to be “a logical connection” between the purpose or activity of the Club and the gender, sexual orientation, religious belief, or other ground mentioned in the Section. This argument was expressed in another way in the course of argument in the High Court. It was said that one could plainly have an exclusive club for Bulgarians because of the express mention in the Act of “nationality”. But one could not have a Bridge club for Bulgarians because there is no logical connection between the game of bridge and the condition of being a Bulgarian. It was also expressed in a third way both in the High Court and in this court: it was said that the activity to which the Club was devoted had to be a “need” of women, or men, or Bulgarians, or gay people, or travellers etc. “as such”. According to this argument, in order for the Club to benefit from s.9 it would have to show that golf was a need of men “as such”. In its written submissions, p.21, the Authority expresses this as “the needs of men qua men”, which means, according to the Oxford Dictionary, “men in their capacity as men” (as opposed to men who happen to be fond of golf).

  145. I have no hesitation in rejecting this argument, and on a number of grounds. Firstly, the statute itself does not require that the Club cater to the needs of travellers, or men, or women “as such” or “qua men (or women)”. For the Authority’s argument to succeed the Court would have to be persuaded to read into the statute the words “as such” or some equivalent and I can see no warrant for doing this.

  146. Apart from this, I wish to draw attention to the patent absurdity of regarding any sporting or cultural activity of the sort to which clubs and voluntary societies are typically devoted, as a need of men, or of women, or of Bulgarians “as such”.

  147. We shall see below that for many years now the term “needs” has applied to psychological and cultural as well as physical needs, although the Authority contended the contrary. A great many men play golf and no doubt for some of them the sport, and the social environment which has grown up around it will be counted amongst their “needs”. Equally, a great many women play golf and no doubt, for some of them, the same observation could be made.

  148. Not being a golfer, I have no idea as to the proportion of men, or of women, for whom golf represents a need, an important part of their lives. But in neither case can their deep commitment to the game of golf be said to be “logically connected” to their gender. It is easy to think of many sports, pastimes and cultural pursuits which are seriously important to some persons of either sex. But it is quite impossible to say that any of these are a need of either gender “as such”. One either likes Grand Opera, or one does not. But whether one does or not is emphatically not a function of one’s gender. I would not have thought this obvious proposition worth writing down, were it not that the Authority does not appear to acknowledge its truth.

  149. The ramifications of the view that the statute should be read as though those two words – as such – were added to sub-paragraph (a) are quite startling.

  150. If a “need” is required to be logically connected to one of the eleven categories mentioned in the Section, it follows that it must be a need of, for example, of women “as such”, women qua women. If something is a need of women “as such” or “qua” women then it seems to follow that it is a need of all women. But this is manifestly ludicrous. However many women are devoted to golf, there must be a larger number who are quite indifferent to it. The same could be said of men. Sexual orientation is one of the grounds in which one may establish an exclusive club which would otherwise be “discriminating”. There is in fact a rugby club for gay men, Emerald Warriors, though I have no idea whether or not it is a registered club. It cannot seriously be thought that rugby is a need of gay men, or indeed straight men, “as such”. But this is precisely what the Authority says such a club would have to show to benefit from s.9.

  151. Stereotyping

  152. The utterly reductive, nature of the Equality Authority’s submission can be illustrated from a consideration of the other parts of the relevant Section of the Act. If the “needs” referred to must be needs of “men as men”, then the phrase “needs” as applied to a ladies club must be the needs of “women qua women” and the needs of the members of a gay club must be the needs of gay men qua gay men, or gay men “as such”. Similarly, the needs of travellers must be the needs of “travellers as such” or “travellers qua travellers”.

  153. At the hearing of this appeal the Equality Authority was utterly unable to suggest even one sport or game which would meet any of these formulations. Moreover, the very attempt to do so involves one in an exercise which is sexist, perhaps racist in some instances, and a crude attempt to stereotype. This is a quite extraordinary activity to be indulged in by an Equality Authority, or in the construction of a statute directed at equal status.

  154. The fact is that the interests and activities of Irish citizens today are much more varied, and shared by a much broader section of the community, than ever before. Not long ago, it might have been thought that boxing was of interest (almost) exclusively to men: this is plainly untenable today, in light of the achievements of Irish female boxers such as Katie Taylor, who is a world Boxing champion. She may be in a minority amongst women in taking an interest in, and participating in, the sport, but that in no way disqualifies her from doing so or from being a member of a Ladies’ club formed for the purpose of boxing. Moreover, it should not disqualify such a club from becoming a registered club under the Act of 1904 as amended if it so desires. But, on the Authority’s submission, such a Club, to avail of s.9, would have to show that Boxing was a need of women qua women. And Ms. Taylor’s very existence as a world boxing champion also demonstrates that boxing is not a need of “men qua men” either. Like every other human activity, boxing is a need of some men and some women, not of all men or all women, and still less of men, women, gays, Bulgarians or travellers, “qua” men, Bulgarians etc.

  155. The fact which the Equality Authority’s submissions ignore is that every sport game or cultural activity will be of great interest to some people, but none will be of interest to all people or even all people in a particular category. Even if one accepts that, for example, boxing is of interest to a much greater proportion of men than of women, that still leaves the irrefutable fact that it is not of interest to all men, or even to most men in any serious way. The Authority advances an interpretation which only has meaning if there is any activity that said can be a “need” of all men, women, married persons, single persons, persons with particular religion, persons of particular ethnic or national origin, or travellers. But this cannot be said because, in the real world, there is no such activity. The Authority can hardly be unaware of this basic fact. Therefore, in advancing the interpretation of the Act which it has, it is consciously attempting to empty s.9 of all meaning.

  156. It was a remarkable feature of the argument in this case that the Authority was unable to give an example of even one existing Club which could benefit from s.9. The reason for this is clear: as the Authority interprets the Section there is no Club, anywhere, ever, that could benefit from it. Indeed, their argument is designed to emasculate the Section. I entirely agree with the observation of Mr. Justice Geoghegan in this case that:

  157. It seems reasonable to assume that an exempting Section such as s.9 was not dealing with purely theoretical and potentially non-existing clubs but was concerned with actual types of club which did exist within the State.

  158. I further agree with the same learned judge that:

  159. The elaborate draftsmanship of Sections 8, 9 and 10 with all their qualifications and exemptions etc. is clearly designed to avoid unconstitutionality having regard to the well established constitutionally protected right to freedom of association. I think it obvious that the Oireachtas was nervous and in my view, rightly nervous, of infringing that right.

  160. The same conclusion appears to follow from a consideration of what is said about the 2000 Act by the learned authors of the “Statutes annotated” commentary on it. It is not relevant to the present aspect of the case as to whether the drafter’s nervousness that the Act might otherwise be unconstitutional is justified or exaggerated, but the Section is plainly in the nature of a saver whereby certain clubs are exempted from the general fate of discriminating clubs. Against this background the Authority advanced a construction which empties the Section of all meaning: the category of clubs actually within the Section is empty, a “null set”, as one learnt that phrase in elementary mathematics.

  161. For reasons expounded by Mr. Bennion in the work cited above, one must assume that statutory words have some meaning and make some practical sense. (Bennion, 858-866) I am therefore disinclined to adopt an interpretation of the Section which negatives both of these things. And I am certainly not prepared to read words into the Section in order to bring about this, to me, futile and thus absurd result.

  162. Futility

  163. Since this latter point seems a significant one to me, as I believe it did to the learned trial judge, I will say a little more about it. Mr. Bennion, in part of the code-like series of propositions which compose his work says, at p.858 that “The Court seeks to avoid a construction that produces a futile or pointless result since this is unlikely to have been intended by parliament”. He comes to this conclusion on the basis of a scholarly consideration of the traditional cannons of interpretation such as lex nil frustra fecit, the law does nothing in vain. This maxim was affirmed as part of the common law of statutory interpretation in Halki Shipping v Sopex Oils [1998] 2 AER 23 at 43/44. The statutory creation of a legally recognised category of entities which has not now, never had and can in practice never have, any members whatever is the very definition of acting vainly or futilely, as parliament is presumed not to do. I have no doubt that the Oireachtas is as much entitled to this presumption as the Westminster Parliament.

  164. The foregoing conclusions are in no way central to my construction of the Section. Their importance is, they exclude the necessity to adopt a broad, purposive construction of s.9, as the Authority contends for, in the alternative. It is literally ludicrous to suppose that the Oireachtas would adopt this futile devising of a legal nonsense – a set of legal entities which could never have any member – when it could easily and be usefully have stated “it shall not be lawful to maintain a club which does not make membership available to persons of both genders”, if that was what it intended to do. I conclude that that was not what it intended to do.

  165. A Club with no Activity

  166. Having regard to the very considerable difficulty which the above considerations represent for the Authority’s case, they put the case in another, even odder, way said however to be a corollary of their first approach. If it is the case that there is no activity which could logically be described as a need of men, or of women, or of Bulgarians, “as such”, then, said the Authority, the effect of s.9 was that although the categories of persons mentioned in it could associate together in a discriminatory way, they could not engage in any activity at all when so associated. It was this that gave rise to their submissions in the High Court (which I regard as wholly artificial) that one could have a Club for Bulgarians but not a Bridge Club for Bulgarians.

  167. As it appears elsewhere in this judgment I regard this interpretation as literally absurd. I have given certain examples of this absurdity. But considered purely as a legal proposition, this is the one aspect of the Authority’s case to the decision on which I think the constitutional jurisprudence may be a necessary aid. The citation above from NUR v Sullivan makes it clear that persons may associate freely, and may do so for any purpose upon which they agree. I would gloss this only by saying that such purpose must of course be a lawful purpose.

  168. I cannot see how a section which permits association on an exclusive basis to certain classes of persons can be read as requiring that they do not engage in any activity together once they are associated. This would nullify the right to association as it exists in Irish law: if there are no activities there will soon be no club, no matter which of the categories of persons mentioned in s.9 one is speaking of.

  169. The Club caters for Women

  170. The point is made that the Club in question here, Portmarnock, permits women to play golf on their premises and actually provides facilities for this. There is a suggestion that this is in some way inconsistent with their stances in excluding them from membership. This, too, is a grave misunderstanding. It is also said that this prevents the Club from claiming to cater “only” for the needs of men, and this is considered below. Indeed, for one of my colleagues this point is decisive. It is said:

  171. The fact that Portmarnock caters for women golfers as well as men is a relevant factor. I am satisfied that this is relevant in analysing the facts and in determining whether it is a club with a principal purpose ‘to cater only for the needs’ of men. Portmarnock caters for men and women. It caters more fully for men than for women but that is not the test set down by the Statute – which is to cater ‘only for the needs of’ men.

  172. For the reasons set out immediately below, and expanded upon later in this judgment, I entirely disagree with that submission. Portmarnock’s purpose, I am satisfied, is to cater for the needs of male golfers. It is necessary to distinguish between the Club’s purpose what the Club is obliged by law is to do. It is obliged by law to cater for the needs of women golfers, in as much as they are part of the general public. This is wholly irrelevant to the question of what the Club’s “principal purpose” is.

  173. I find it difficult to see how the “purpose” of a body of persons can be defined other than by themselves. The fact that they are obliged by law to do other things as well can in no way be regarded as permitting a different purpose to that they have themselves associated for to be attributed to them. Equally, it is necessary to distinguish between “purpose” and “activity”. A club, as that term is understood in the English speaking world, is first and foremost an association of persons who typically share expenses of the maintenance of club property etc. Persons have been known to associate on the basis of various things they have in common which include, for example, nationality and religion. The vast numbers of ladies’ or womens’ clubs around the country plainly illustrate that they also associate on the basis of gender. But once associated they will naturally do something. This is true whether the Club is one for men, for women, for homosexuals, for pensioners or for primary school children. The activity which the Club elects to become involved in may be a matter of great interest for some of the members and little or none for others. Whatever it is, does not detract from the underlying purpose of the Club.

  174. Female golfers are, of course, part of the general public. If a club, or any other sort of organisation, discriminates in its dealings with the general public, then it risks the sanctions created by s.5 of the Act. But that Section exists in the Act precisely for the purpose of regulating the Club in its relationship with the general public. The fact that the Club complies with the law laid down by the legislature in dealing with the general public in no way undermines its right to have a different arrangement in its own private and internal affairs, which is what s.9 permits. Indeed, the distinction which the Act clearly makes between dealing with the general public, and dealing with an organisation’s own private and internal affairs, to my mind considerably strengthens the case for the interpretation advanced by and on behalf of the Club. S.5 is discussed more fully below.

  175. Doubtful penalisation

  176. It was agreed on both sides of the case that the suspension of a club’s certificate of registration, or still more seriously preclusion of the Club from renewing such certificate, is in the nature of a penalty. The principal effect of this is to prevent the Club from making alcoholic drink available. This, as the Equality Authority said in a press release intended to draw attention to its case against the Club in the District Court is a “significant sanction”.

  177. A penalty or sanction is something imposed by way of example and deterrence, and indeed for pure punishment, following on a finding that a person or entity has been in breach of some rule or law. Indeed, the primary meaning of “penalty” in the Oxford English Dictionary is “a punishment imposed for breach of law, rule, or contract”. Its secondary meaning is described as “a loss, disability or disadvantage of some kind, either ordained by law to be inflicted for some offence or agreed to be undergone in case of violation of a contract.” The relevance of this definition, of course, is that the District Court finding that the club is a “discriminating club” was agreed, on the hearing of this appeal, to be a penalty.

  178. The first oddity about this particular sanction is that it is imposed without any necessity to establish a breach of rule or law and indeed none is alleged. An ordinary licence to sell alcoholic drink can be lost for repeated breaches of the licensing law or on objection on the grounds of bad character. Nothing of the sort is alleged here nor is any irregularity whatsoever concerning the Club’s making alcoholic drinks available.

  179. Apart from the foregoing, there is a rule of law, and a cannon of statutory interpretation, prohibiting doubtful penalisation i.e. the imposition of a penalty by language which is less than clear. This was described by O’Higgins J. in Mullins v Harnett [1998] 2 ILRM 304 as “the principle against doubtful penalisation”.

  180. In Broderick v Flanagan [1979] IR 265 at 276 Henchy J. said:

  181. If the lawmakers wish to trench on personal liberty by extending the range of the criminal law they may do so, within constitutional limitations; but an intention to do so should not normally be imputed to them when the statute has not used clear words to that effect.

  182. In the first mentioned case, the learned trial judge continued:

  183. .... whenever it can be argued that an enactment has a meaning requiring the infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle is correspondingly powerful.

    [emphasis added]

  184. In the present case the penalty was described by the Authority itself as “significant”. In Mr. David Dodd’s book on “Statutory Interpretation in Ireland” it is said that the principle expresses what is at the heart of the maxim “nullam crimen sine lege, nulla poena sine lege – there must be no crime or punishment except in accordance with fixed pre-determined law.”

  185. Moreover though this principle most often arises in the context of the criminal law O’Higgins J. in the case already cited stated “Penal statutes are not only criminal statutes, but any statutes that impose a detriment.” The Act of 2000 is certainly such a statute. This, too, is agreed.

  186. “Only”

  187. The Authority placed considerable emphasis on this word. It is from it that the Authority derived its submission that there had to be a logical link between the activity of a club and the gender, sexual orientation etc. of the membership. I entirely disagree with that submission. As a purely linguistic matter, the rigid limitation of the Club’s activities to an activity which was a “need” of men, women or travellers qua men, women or travellers, and nothing else, would be inconsistent with the use of the term “principal purpose” which necessarily involves a possible plurality of purposes and activities. Secondly, it seems to me obvious as a matter of ordinary linguistic construction that “only” relates to the category of persons who may be in membership. Thus, for example, a gay club might wish to exclude persons who are not of that orientation, or a women's club might wish to exclude men.

  188. But whether one thinks of men, women, gays or travellers, there is no warrant whatever in the word “only” or in any other word or form of words in this Section for supposing that the activity of a club has to be in need of gays etc. “qua gays” that is to say a need of all gay people. It is in my view quite sufficient, to take the example of a womens’ or ladies’ club that, membership being confined to women, it pursues activities of interest to some women. To take the opposite view involves one in hypothesising some activity which could be described as a “need” of all women and it cannot in my view be done either in the case of women, or of men, or of travellers or any of the other groups mentioned in s.9. To “cater only for the needs of women” it is in my view quite sufficient if the women being catered for themselves agree on an activity, cultural pursuit or interest which they wish to enjoy together in their club. The same applies to men, gay people, travellers, Catholics, Protestants, Jews, and every one of the groups mentioned, and their consistent sub-groups.

  189. An exempted club, to coin that phrase, under s.8 is one whose “principal purpose” is to cater only for the needs of men, or women, or any other group mentioned in the Section. The members are the best and only possible judges of what their own "needs" are.

  190. The word “only” seems to me to qualify the verb “cater” and the catering for the needs of the relevant group is to be the “principal” purpose, an adjective which, as we see elsewhere in this judgment, permits of and indeed assumes the existence of other purposes. It must be emphasised that, this being a Section concerned with the infliction or non-infliction of a penalty, a construction which would tend to favour the infliction of the penalty is to be avoided unless it is clear. The authorities on this question are discussed elsewhere. Thus, any tension (and I am far from holding expressly that there is any) between the terms “principal” and “only” in the same Section which might be thought to lead to unclarity or ambiguity, must inure to the benefit of the Club, and not of the Authority.

  191. Moreover, s.9, like any Section of an Act of the Oireachtas must be construed on the basis that it permits and certainly that it does not prevent, a person or entity to whom it applies from complying with the general law of the land.

  192. The relevance of this last observation is that it is argued by the Authority that, since the Club actually provides facilities and services to women golfers, it cannot be described as catering “only” to the needs of male golfers. Quite apart from the question of whether the adjective “principal” permits this additional purpose, there is the salient fact that for the Club not to provide services to women golfers on the same basis as it provides them to male non-members would be a breach of the law.

  193. Section 5 of the Equal Status Act, 2000 provides, insofar as relevant:

  194. 5.

    (1)

    A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

  195. As I understand it, the Club provides facilities for non-members to play Golf on the payment of a green fee. As far as I am aware every Golf Club does this, whether with or without conditions. It cannot be denied that female golfers are a section of the “public generally”. If therefore male golfers are permitted to play golf on the club’s premises despite not being members of the Club, female golfers must also be permitted to do so. To put this in another way, the Club must, by law, cater for their needs in that regard. From the same Section it appears that the Club must also cater for the needs of women golfers in relation to facilities and supply of refreshments, to the same extent that it caters for those of male golfers.

  196. More generally, Section 5 of the Act of 2000 deals with a person, including a club, in his dealings with the “public generally”. On the other hand, Sections 8 and 9 deal with the Club’s internal affairs, in relation to members or potential members. This distinction is mirrored in s.5(2)(b). This subparagraph is one of a number which sets out circumstances in which subsection (1) of s.5 does not apply. Subparagraph (b) provides an exclusion as follows:

  197. A service related to a matter provided under s.6, or a service offered to its members by a club in respect of which s.8 applies.

  198. Section 6 of the Act deals with the provision of accommodation and is not immediately relevant here. However, the second phrase of the above subparagraph draws precisely the distinction which I have been endeavouring to expound above: a distinction between legislation requiring non-discrimination in the provision of services to the “public generally” and a service offered by a club internally to its own members.

  199. In my opinion it cannot be realistically said that the Club is in breach of any requirement to have as its “principal purpose” that of catering “only” to the needs of men (or women, or any other exempt group), because it complies with the law of the land in making services available to the “public generally” on a non-discriminatory basis.

  200. Section 9 is designed expressly to permit a club to discriminate, without penalty, in the matter of who it admits to membership and otherwise. It would be a wholly improper and unlawful interpretation of that Section to hold that, in order to avail of it, the Club seeking its protection would have to breach the law in another way. I have no doubt that the legislature did not intend this effect.

  201. (H) European law

  202. Having regard to the incorporation of the European Convention on Human Rights into Irish law effected by the Human Rights Act, 2003, it is relevant to consider the decisions of the Court of Human Rights. Their broad similarity with the Irish decisions permits this to be done quite briefly. The matter is dealt with in Article 11 of the Convention. In Sigurjohnsson v Iceland [1993] 16 EHRR 462 the Strasbourg Court held, quite consistently with the Irish cases cited above, that freedom of association necessarily involved the correlative negative right to refuse to associate and that therefore an Icelandic law which required taxi drivers to join an association was a violation of Article 11. It was noted that breaching the Icelandic law “was likely to bring about the revocation of the applicant’s licence”. He was thus subject to a form of compulsion “which must be considered incompatible with Article 11”. The decision of the court in Young James and Webster v The United Kingdom [1982] 14 EHRR 38 is remarkable for its similarity to the Educational Company case cited above. A requirement on British rail employees to join a union on the threat of dismissal was regarded by the court as “a form of compulsion which strikes at the very substance of the freedom guaranteed by Article 11”. In a case with considerable echoes of Meskell, Wilson v The United Kingdom [2005] 35 EHRR 523 it was held that a financial benefit offered to workers who decided to cease conducting collective bargaining through a union “constituted a disincentive or restraint on the use by employees of union membership to protect their interest and accordingly the failure by the U.K. to outlaw such a position was a violation of Article 11”.

  203. Turning for a moment to the law of the European Union, the respondents’ counsel on the present appeal emphasised Council directive 2004/113/EC which implements the principle of equal treatment between men and women in relation to the access to the supply of goods and services. Counsel emphasised the statement by the Commission that “the directive should not apply to the enjoyment of services provided by private clubs which are open to the members of only one sex”. Counsel also emphasised certain of the recitals to the directive in particular Recital 3 which stated:

  204. While prohibiting discrimination, it is important to respect other fundamental rights and freedoms including the protection of private and family life and transactions carried out in that context and the freedom of religion.

  205. Recital 13 says:

  206. The prohibition of discrimination should apply to persons providing goods and services, which are available to the public and which are offered outside the area of private and family life and the transactions carried out in that context. It should not apply to the content of media or advertising or to public or private education.

  207. Recital 16 says:

  208. Differences in treatment may be accepted only if they are justified by a legitimate aim. A legitimate aim may be the protection of victims of sex related violence (in the case of establishment of single shelters), reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person’s home), the promotion of gender equality or the interests of men or women (for example single sex voluntary bodies), the freedom of association (in cases of membership of single sex private clubs and the organisation of sporting activities (for example single sex sports events). Any limitation should nevertheless be appropriate and necessary in accordance with the criteria derived from the case law of the Courts of Justice of the European Communities.

  209. It is clear from the foregoing references that EU law protects the position of one-gender private clubs. But it is of course possible that Irish law in this regard is more restrictive than European law, whether or not such restriction would pass muster in Strasbourg or in Luxembourg.

  210. “Needs”

  211. In the way in which the Equality Agency advanced its case against the club, the construction of the word “needs” takes centre stage. To come within the Section the club must be such that “its principal purpose is to cater only for the needs of persons of a particular gender” etc. It must be quite clear that having a “principal” purpose is not inconsistent with the existence of other purposes as well. Indeed, so to describe one purpose positively implies the existence of other purposes. A principal teacher, a principal partner, or the Civil Service rank of Principal Officer are more or less familiar terms: each implies that there are other teachers, partners and officers, of whom however the one designated with the adjective “principal” is in a position of primacy. Despite the form of words sometimes used by the learned trial judge, I do not think it can be said that the club’s purpose or principal purpose is to play golf: it is to provide facilities for the playing of golf by gentlemen. This does not prevent it from having other ancillary purposes, but, by reason of the deployment of the word “only” these must be linked to the playing of golf by men. I am unconvinced that the word “needs” should be interpreted as meaning absolute necessities or something of that sort: golf itself is not in that category.

  212. There may be a tension between the words “principal”, a word implying a plurality of objects and “only”, implying singularity: but if so that is a defect in the Act and serves only to create ambiguity or obscurity, which must enure against the authority and in favour of the constitutional right to associate. More likely, “only” relates to the gender or other distinguishing feature, such as being Bulgarian, or a traveller, which permits exclusive association.

  213. I entirely agree with the learned trial judge that the wording and basic structure of s.9(1)(a) must be given the same meaning whether it relates to persons availing of the “gender exception”, or persons availing of the “nationality” exception or any of the others, and the same meaning in relation to a men only club and a ladies only club. Similarly, the wording must be interpreted in an identical manner when one is considering, say, a “Bulgarians only club” or a “Nigerians only club”. There is no warrant for treating the words in a different manner, and to do so would itself, ironically, constitute a discrimination.

  214. That said, I regard the interpretation proposed by the Authority, that the club can do nothing except things which are essential to permit the association in the club of Bulgarians, or whatever group is in question with one another, so that the exception does not apply to the Bulgarian Bridge Club, as wholly wrongheaded and as evidencing both a technical error and a strangely limited knowledge of human nature and of words in their current usage. If one assembles a club of Bulgarians, or persons aged between 12 and 18, or persons over the age of 65, travellers, or ladies or gentlemen, one cannot expect the members simply to sit around reflecting on whatever it is they have in common. On the contrary, whether or not the club in its title and constitution is linked to a particular activity (such as golf, bridge, snooker, or the reading and discussion of books) the group of individuals once assembled will naturally do something. They may do a variety of things. This is a fact of universal experience and arises from the nature of social interaction between human beings as observed everywhere and at all times. Many people derive great enjoyment from membership of a golf club, or a rugby club, even though they are far from proficient at the game in question and may indeed not play it at all. Their pleasure is in association with others. But this association requires some activity to coalesce around. Anyone who has ever been involved in a youth club, or a club for pensioners, knows this: if there are no activities there will shortly be no club. Section 9 of the Act preserves the right of at least twelve groups of people to associate on an exclusive basis i.e. to the exclusion of others. When people associate it is an incident of human nature that they will do something together. If one brings together a group of young children at a child’s birthday party, it is predictable that they will chase each other, shout and run about. It would be a cruel host, and it would make for an unsuccessful party, to inform the children that their license to be on the premises was limited solely to the celebration of a birthday and did not include a license to shout or run about since that was not absolutely necessary to the celebration of the birthday. But this, in effect, is what the Equality Authority is saying here.

  215. Moreover, there are activities which are so intrinsically linked with particular groups that they are in fact part of what makes them a group. For example, what is more quintessentially Welsh than unaccompanied singing by male voices? If the Dublin Welsh Male Voice Choir were a club, it could benefit from s.9 on at least two grounds: as catering to a single gender; and as catering to persons of a particular, shared national origin. But as soon as the persons united by these two characteristics designate themselves also as a choir then, according to the argument the Authority felt compelled to make, they would lose the protection of s.9: the statute contains no exemption for singing, even singing of a distinctively and nationally characteristic form, associated throughout the world with the Valleys of Wales.

  216. I do not believe that the Act, properly construed, compels so inhumane and so absurd a result.

  217. (I) An Island of agreement

  218. If there was one thing on which the authority, the club, and the Attorney General all appeared agreed it was that the effect of s.9 is to provide exemptions for various groups from the terms of s.8. The effect of this is to permit such groups to associate on an exclusive basis, that is to the exclusion of others, without risk to their ability to make drinks available in their premises and at their meetings. The law presumes that statutory words have some effect: it presumes them not to be meaningless (see Bennion, op. cit.). That is why it is so significant that the authority were unable to point to any club, real or imaginary, which could come within the exemption undoubtedly intended to be provided by s.9, if that Section is to be interpreted as the authority wish. If that is so, then the Section is meaningless, otiose and redundant. Nor am I impressed by the argument that the Section was perhaps designed to deal with some hypothetical situation not yet either arisen or even capable of being described. That argument might be made of any manifestly redundant Section and the process of statutory interpretation must be a rational one.

  219. On the other hand, I am in entire agreement with the learned trial judge that the arguments advanced on behalf of the Golf Club provide a consistent account of s.9 which does not deprive s.8 of efficacy and which extends protection to clubs some of which will have enjoyed the protection of the law and the Constitution for as long as the latter document has existed, and of the law for much longer.

  220. (J) Dictionary definitions

  221. It is desirable at this point to set out the dictionary definitions of certain of the terms discussed above.

  222. The word “principal” as an adjective, which it is in the Statute, connotes “first or highest in rank; most important”. The Oxford Dictionary quotes as a recent use of it the phrase “the principal source of information”: it will be observed that this plainly implies that are or may be other such sources.

  223. The term “need”, the singular of “needs”, considered as a noun, is defined “a condition of lacking or requiring some necessary thing, either physically or (now) psychologically ....”

  224. These dictionary definitions are all taken from the shorter Oxford English Dictionary, 1993. Of particular significance is the extension of the term “need” or “needs” to include that which is psychologically, as well as physically necessary. This meaning strongly supports the view of the meaning of the term “needs” adopted by the learned trial judge, with which I respectfully agree. Air, food and drink are “needs” in the sense of things necessary to life in a way which poetry, grand opera or football can never aspire to be. But these things, and no doubt many others, are “needs” of some people in a sense which is no less real for being psychological in nature. Indeed, as we have seen, the authority itself at one point conceded that cultural and recreational needs might be included within the term as it is used in the Statute. I believe that they were right in this and are wrong in the excessively narrow construction to which they have since retreated. Furthermore, I do not believe that their interpretation reflects the meaning of the word “needs” as it is now used, as recognised by the Oxford Dictionary.

  225. (K) Commentary on the Statutes

  226. I accept what is said in the “Irish Current Law Statutes Annotated” note to the 2000 Act, that s.9 was “intended to protect rights of freedom of association, the government having been advised by the Attorney General that the previous provision does not sufficiently protect such rights.” This, indeed, has the manifest effect of cutting down the scope of the category “discriminating club” created by s.8. I also consider it necessary, for the reasons set out at pages 858-866 of Mr. Benion’s work, to ascribe some sensible meaning to the provision. The provision creates limitations on the meaning of the term “discriminating club” and it is necessary to construe the Section accordingly. The authority contended that it was unnecessary that s.9(1) should have any particular meaning which is presently ascertainable because it may, for all one knows, have been enacted to deal with some unimagined but theoretically feasible situation which one cannot even guess at. I reject this as an aid to construction as it seems to me to deprive the enactment of any significant present effect by the speculation that it may have only some presently unknown effect. That is nonsense as the extracts from the Statutes Annotated (above) makes clear.

  227. The need to construe the Section as having some meaning is what makes it significant that the authority has been unable to give an example of any club, or any type of club, which could be within the authority’s preferred meaning of s.9(1)(a).

  228. (L) The nub of the dispute: “needs”

  229. As noted above the construction of this single word lay at the centre of the dispute between the parties. Neither side contended in a serious way for any meaning other than the ordinary and natural grammatical meaning of the words of the subsection. The club said that it was a gentlemens’ golf club; a golf club for gentlemen. The Authority said that this could not be within s.9(1), although a gentlemens’ club could be: what excludes Portmarnock Golf Club from s.9(1), in the Authority’s view, was that it provided facilities for the game of golf which is not a “need” of men, or of any group mentioned in s.9. It was this very narrow construction which led to all the submissions about a club for Bulgarians as opposed to a Bridge Club for Bulgarians and such like.

  230. In my view the ordinary natural and literal meaning of the word “needs” is that set out in the shorter Oxford English Dictionary. It is broad enough to embrace social, cultural and sporting needs, as well as more basic needs for things such as air, food and water. In my view the Authority’s construction of the term “needs” is a narrow, outdated and unnatural one. Persons “of a particular .... national origin” are amongst the groups who may associate exclusively by virtue of s.9(1) the authority itself at one point conceded what is to my mind self evident, that the “needs” of such a group must clearly involve social and cultural needs, felt necessities, as well as purely physical needs. Furthermore, in the plain meaning of the statutory words the body seen as catering for the “needs” of the various groups mentioned is a “Club”. It is the ordinary experience of mankind that such a body, once assembled, will engage in activities, whether the club is one of school children or of old age pensioners. In my opinion it would take words of the plainest meaning to prohibit a club organised on any of the bases specifically mentioned in s.9(1)(a) from engaging in any ordinary and legal activity which its members might enjoy.

  231. I would add that the extremely narrow interpretation of s.9 advanced by the Equality Authority appears to me to be inconsistent with what was said by the former Supreme Court in National Union of Railwaymen v Sullivan [1947] IR 77. Expounding Article 40.6 of the Constitution the Court concluded that:

  232. Each citizen is free to associate with others of his choice for any purpose agreed upon by him and them.

    This passage appears to me to make nonsense of the contention of the Authority that, in the case of a club which is prevented from being a discriminating club by the terms of s.9 of the Act of 2000, there can be no purpose to the association of persons within one of the statutory categories, except the association itself. In Sullivan, the former Supreme Court assumed that voluntary association of persons had some purpose or activity, social, sporting, intellectual, economic or otherwise. In my view this is a sensible assumption, it is one vindicated by ordinary experience of life.

  233. I would add that the legislature has seen fit to provide an exemption, also, in the case of clubs for persons of a particular religious belief, and clubs for persons who have no religious beliefs. It would seem extraordinary if, having decided to associate with others on the basis of shared views on religious or metaphysical topics, the members of such clubs could do absolutely nothing by way of expression of their shared views, not even shared, structured exposition of their devotional or atheistical preferences.

  234. I would dismiss the appeal and affirm the decision of the High Court on the construction of s.9(1)(a)

  235. (M) The constitutional issue

  236. In my opinion, having regard to the conclusion I have reached as to the meaning of the relevant statutory provisions, no constitutional issue arises which it is necessary or proper for this court to determine. As the learned trial judge pointed out, there is ample authority for the proposition that a court should not embark upon a constitutional issue if the dispute between the parties can be resolved otherwise. I may say that I fully understand why, nevertheless, he addressed the Constitution issue: he considered that it would be economical of time to do so in case his decision were taken further. But I cannot consider that an adequate reason for embarking, without necessity, on a constitutional “comment”.

  237. The club’s proceedings make it quite clear that it is only in the event of their losing on the issue of the construction of the statute that they wish to agitate the constitutional questions. This is a perfectly proper attitude: they would have been open to legitimate criticism had they asked the court to decide on the constitutionality of the statute without first seeking to establish whether if, on its true meaning, they could claim the benefit of s.9.

  238. It is further to be noted that the learned trial judge did not make an order on the constitutional issues, presumably because they are hypothetical only, and described his own statements on the constitutional topics merely as “comments”. But he made an order for the costs of the issue. It is not desirable that comments from an authoritative source on the constitutional issues should exist, as it were, in a vacuum. I would therefore set aside so much of the judgment of the learned trial judge that consists of commentary on the constitutional issues raised, and affirm the balance of the judgment, that set out up to p.22 of the approved text. I would also discharge the order for the costs of the constitutional issue.

    Justice Geoghegan

  239. This appeal relates to two separate sets of proceedings and categories of litigation involving on the one hand the Equality Authority and on the other hand Portmarnock Golf Club. The personal names in the titles of the two respective sets of proceedings are simply names of officers or trustees of Portmarnock Golf Club. In terms of relevant parties, I will henceforth be referring for simplicity to the Equality Authority, “the Club” and to a limited extent, the Attorney General. The two sets of proceedings arise in the following context.

  240. By a civil summons in the District Court, the Equality Authority, pursuant to the provisions of section 8(3) of the Equal Status Act, 2000 made a claim for a determination by the District Court that the club was a “discriminating club” for the purposes of that section and for an order suspending the club’s certificate of registration under the Registration of Clubs Acts, 1904 to 1999 which certificate enabled the club, subject to the Acts, to sell intoxicating liquor. The application duly came on for hearing in the District Court before Judge Mary Collins and she delivered a judgment on the 20th February, 2004. The learned District Court judge had the benefit of written and oral submissions and she was addressed in court by Mr. Donal O’Donnell, S.C., counsel for the club. It is clear from the terms of her judgment that she gave consideration to the submissions but, having done so, she came to the conclusion that she should make the determination sought. I will be explaining the issues which she had to consider later on in my judgment. At this stage, it is sufficient to state that the club was dissatisfied with the judge’s decision and appealed it by way of Case Stated to the High Court.

  241. The appeal came on for hearing in the High Court before O’Higgins J. who held that the learned District Court judge was incorrect in her interpretation of the relevant provisions of the Act. He was of the view that, whilst, if section 8 stood alone, the club would be a “discriminating club”, “it was not a “discriminating club” having regard to statutory exemptions contained in section 9(1)(a) of the Act. The relevant parts of these sections are helpfully set out in the judgment of Denham J.

  242. In addition to appealing the decision of the District Court by way of Case Stated, the club in the names of its two trustees instituted original High Court proceedings by way of plenary summons seeking various declarations as to the alleged correct interpretation of the relevant provisions of sections 8 and 9 of the Act of 2000 and seeking, in the event that the High Court upheld the view of the District Court, a declaration that the provisions of sections 8, 9 and 10 of the Equal Status Act, 2000 were invalid having regard to four different specified provisions of the Constitution. The summons also sought damages for breach of statutory duty and breach of the plaintiffs’ constitutional rights.

  243. Sensibly, the two sets of High Court proceedings were brought on for hearing together before O’Higgins J. The learned High Court judge essentially dealt with two issues. The first was whether the determination of the District Court was appropriate having regard to the exemptions contained in section 9(1)(a) of the Equal Status Act, 2000, a matter which I will be fully explaining later. The second was whether if the determination was correct, the relevant sections were unconstitutional. The judge decided that the District Court determination was wrong and that the club fell within the above mentioned exemption. That being so, the question of the constitutionality of the relevant provisions did not arise. Nevertheless, O’Higgins J. went on to express the view that the sections were in fact valid having regard to the Constitution. In taking this latter step which was probably well intentioned with the idea that the Supreme Court on an appeal could deal with the constitutionality issue if it considered that the decision of the High Court on the other issue was incorrect, it must be said that that procedure was contrary to the established jurisprudence of this court. At any rate, it is not entirely clear what the exact status is of that part of the judgment in which the learned High Court judge deals with the constitutionality issue, given that the order drawn up seems only to refer to the appeal by way of Case Stated.

  244. I do not intend to express any views on either the procedural or substantive aspects of the judgment dealing with the constitutionality issue. The court has already indicated to the parties that before considering those issues, if they should arise it will first determine, what I might describe, as the issues of statutory interpretation.

  245. In this connection, I should expressly mention that the Equality Authority has appealed to this court from the decision on the statutory interpretation issue and the club has appealed the purported decision on the constitutionality issue.

  246. Before dealing specifically with the statutory issue which is the only issue I have to consider, there are some further introductory remarks which I think it appropriate to make. The method by which the Oireachtas has chosen to encourage (and in reality to force) “discriminating clubs” to abandon the “discrimination” is not merely unusual but quite extraordinary. The sanction is the future prohibition on the sale of intoxicating liquor even though that trade had nothing whatsoever to do with any alleged “discrimination”. Furthermore, the effect of the provision is that upon a lawful determination of the kind made by the District Court in this case, the “discriminating” club may continue for ever “discriminating” if it is satisfied to lose its club registration and, therefore, the authority to sell liquor. In the case of ordinary trading with the public and not in an internal club context “discrimination” can actually be prohibited by order. But the Act provides for the unusual indirect means of enforcement in relation to “discrimination” within the internal arrangements of a club. Although the solution arrived at by the Oireachtas is undoubtedly unusual, it is not difficult to discern the reason for its adoption. The elaborate draftsmanship of sections 8, 9 and 10 with all their qualifications and exemptions etc. is clearly designed to avoid unconstitutionality having regard to the well established constitutionally protected right to freedom of association. I think it obvious that the Oireachtas was nervous and in my view, rightly nervous of infringing that right. There is, therefore, an element of what I might describe as “tiptoeing” in the draftsmanship which in turn has resulted in real problems of interpretation.

  247. The freedom of association recognised as an inherent right by the Constitution, though not, of course, an unqualified right, is highly relevant to the interpretation of these sections quite apart from its relevance to arguments on the constitutionality of the provisions. The club’s written submissions (and followed up in the oral submissions) referred to the wholly different manner of dealing with services to the public on the one hand and “discrimination” within the internal organisation of registered clubs on the other hand. I fully agree with the observation in the written submissions which reads as follows:

  248. This change of regime, it is submitted, can only be explained as a clear reflection of an awareness that in respect of the membership of private clubs, the constitutional freedom of association is directly engaged. Accordingly, it is submitted that it is particularly appropriate to interpret sections 8, 9 and 10 on the basis that they are designed to seek to avoid unjustified intrusion on constitutional rights in general and the freedom of association in particular.

  249. In a footnote the written submissions refer to NUJ v Sisk [1992] 2 I.R. 184 at 195 in which McCarthy J. in the Supreme Court made the following observation:

  250. In my view, the right of free association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it.

    That quote from McCarthy J. seems to me to be certainly relevant to this case and the difficulties of interpretation involved.

  251. For reasons which I will be elaborating upon, I have come to the firm view that the judgment and for the most part the reasoning of O’Higgins J. in the High Court was correct and that the appeal of the Equality Authority should be dismissed.

  252. To explain why I have formed this view, it is necessary that I refer briefly to the relevant statutory provisions. For a more detailed treatment, resort can be had to the High Court judgment.

  253. A treatment of how the Equal Status Act, 2000 affects clubs must necessarily begin with a reference to two statutory definitions contained in section 2 of the Act. These are “discriminate” and “discriminatory grounds”. “Discriminate” is defined by reference to a meaning given to it in sections 3(1) or 4(1) of the Act. Those subsections are in turn basically uncontroversial in the meaning they ascribe to “discriminate” and nothing would seem to turn on them for the purposes of the issues in this case. It is necessary, however, to explain in more detail what is meant by “discriminatory grounds”. These are set out in section 3(2) of the Act. They are, in effect, grounds based on gender, marital status, family status, sexual orientation, religion, age, disability, race, membership of the Traveller community and what is described as “victimisation ground” which is essentially an unfair procedures ground. Section 5 deals with disposal of goods and the provision of services. Section 6 deals with the disposal of premises and the provision of accommodation and section 7 with educational establishments. There are then enforcement provisions contained in the Act for the most part of a conventional nature ensuring compliance with those sections or compensating for lack of compliance.

  254. As already mentioned this case relates to “discriminating clubs” which for the most part are dealt with in sections 8, 9 and 10 of the Act and provide for a unique sanctions regime i.e. the removal of registration under the Registration of Clubs Acts, 1904 to 1999. I would, however, reiterate that in so far as relations with the public are concerned i.e. persons other than the club’s own members, the normal remedies apply. In embarking on curbs on private associations not involving the public in general, a person or body doing so is immediately treading on dangerous constitutional territory even though the freedom of association recognised and upheld by the Constitution can never be absolute. As I have already surmised, it seems reasonably clear that this is the reason why a different regime is adopted for the purposes of sections 8, 9 and 10.

  255. The scheme of those sections is as follows. Section 8 provides that a registered club shall be considered to be a “discriminating club” if it has any rule, policy or practice which discriminates against a member or an applicant for membership or if a person involved in the management of the club discriminates against a member or an applicant for membership in relation to the affairs of the club. Without prejudice to the generality of those provisions certain acts are to be regarded as “evidence that the club is a discriminating club”. These are:

    1. refusing to admit a person to membership;

    2. providing different terms and conditions of membership for members or applicants for membership;

    3. terminating the membership of a person or subjecting a member to any other sanction; or

    4. refusing or failing, in contravention of section 4(1), to do all that is reasonable to accommodate the needs of a member, or an applicant for membership, with a disability.

  256. The section then goes on to provide for an application to the District Court of the kind that was brought in this case seeking a determination that the club is a “discriminating club”. If the court makes such a determination and it is the first such order, the court has to include in the order a provision suspending the certificate of registration of the club for a period not exceeding thirty days. Where the court however makes any subsequent such order, the club by virtue of section 10 of the Act is effectively precluded from claiming club registration until the discrimination has been removed.

  257. If section 8 stood alone the decision of the District Court in this case would have been correct and the decision of the High Court reversing it erroneous. But section 8 does not stand alone. Section 9 contains important exemptions and indeed they are of such importance that for a proper understanding of the Act’s regime relating to “discriminating clubs”, it is essential to read and consider the two sections together. There is one point of differentiation, however, which in my view is relevant in the interpretation of section 9 as distinct from the interpretation of section 8. It seems reasonable to assume that an exempting section such as section 9 was not dealing with purely theoretical and potentially non-existent clubs but was concerned with actual categories of clubs which did exist within the State. This seems to have been a point to which the learned High Court judge rightly attached considerable importance. I will return to it in due course. First of all, I will outline the provisions of section 9.

  258. Subsection (1)(a) of that section is the key provision as far as the issues in this case are concerned. It reads as follows:

  259. 9.

    (1)

    For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that –

    (a)

    If its principal purpose is to cater only for the needs of –

    (i)

    persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

    (ii)

    persons who are members of the Traveller community, or

    (iii)

    persons who have no religious belief,

    it refuses membership to other persons, ....

  260. It is the opening words of this sub-paragraph which give rise to the difficulty of interpretation. The learned District Court judge made the determination that the club was a “discriminating club” based on the second last paragraph of her judgment which neatly encapsulates the view she took. This paragraph reads as follows:

  261. The principal purpose of the club is to play golf. The ordinary words of the statute do not ascribe to men’s golf a special need. A literal approach is appropriate in this case and therefore other canons of construction are not needed. I propose to rely on the presumption of constitutionality.

  262. This approach is adopted by the Equality Authority but is strongly disputed by counsel for the club. A fundamental point of disagreement is that the club argues that the expression “principal purpose” relates to the category of persons whose needs are catered for and not to the activities of the club. I have come to the conclusion that this latter approach is correct. It has been rightly submitted by both sides that analysis of the words and their meaning within the context in which they are used is of vital importance. Such analysis is particularly material if it is applied to the entire phrase “its principal purpose is to cater only for the needs of” but to that end separate consideration of the meaning of the words “principal”, “purpose”, “cater”, “only” and above all “needs” is helpful. I am satisfied, for instance, that when read in its context, “needs” certainly does not mean “special necessary requirements” in some objective sense. It is of some interest that in the revised 10th edition of the Concise Oxford Dictionary published in 2001 “need” as a verb is somewhat differently defined than “need” as a noun. “Need” as a verb is defined (inter alia) as “require (something) because it is essential or very important rather than just desirable” whereas “need” as a noun is defined as “1 circumstances in which something is necessary; necessity. 2. A thing that is wanted or required.” Put simply “need” as a noun may, depending on context, mean an essential objective requirement or simply a subjective requirement in the broadest sense which may include a social or cultural requirement. I do not believe that “needs” in section 9 was ever intended to mean more than requirements in that second sense. Indeed I link this interpretation with the word “cater”. One does not normally speak of catering for necessities. One might speak of providing for necessities. On the other hand “cater” would be the more usual word where simple requirements are involved. .

  263. Crucially, however, I believe that the entire phrase must be considered as it stands rather than by reference, except to a limited extent, to the separate words. Within the interpretation that I am satisfied is correct, the principal purpose of the club is to cater for the golfing needs of persons of a particular gender only i.e. males. If the argument of the Equality Authority is correct it is virtually impossible to envisage what kind of clubs of a single gender the Oireachtas had in mind for exemption, a point to which O’Higgins J. correctly attached considerable importance. Even if it is accepted that a so-called “gentlemen’s club” which did not permit of female members is exempt under section 9 whilst a sports club of some kind of single gender is not, extraordinary anomalies arise. A gentlemen’s club that had a squash court facility would be exempt but a male only squash club would not. That this is unlikely to have been the intention of the Oireachtas is highlighted when one comes to consider the other exemptions. The example was considered in the High Court of a club for Bulgarians only. The Equality Authority was and is forced to argue that a football club for Bulgarians only would be a discriminating club whereas a club for Bulgarians only but with no particular specified activity other than sociability would be exempt.

  264. It is clear from the judgment of the High Court that as the case was argued before that court, a different approach to exemption from the provisions of section 8 was adopted by counsel for the Attorney General than that adopted by counsel for the Equality Authority. Referring to the Attorney General’s submissions, the learned High Court judge said the following in his judgment:

  265. It is conceded by him that a gentlemen’s club or ladies club – and not only those confined to those whose objects had a logical connection with male or female could be exempt from the provisions of section 8 of the Act. It is difficult to see how a ladies club or a gentlemen’s club might be exempt from the provisions of section 8 of the Act while a gentleman’s golf club or ladies golf club cannot avail of such exemptions.

  266. The Equality Authority argued in the High Court and before this court that there must be a logical connection between the objects of the club claiming to be exempt and the exclusive gender of the membership. But the learned High Court judge rightly considered it “significant that the court was not provided with any example of an existing club of that type.” Farfetched theoretical or even mythical examples were offered such as a club for men who had a perceived grievance concerning how justice was administered in the family courts and who wished to give mutual support to one another in some practical fashion such as babysitting were put forward. To my mind, the learned High Court judge if anything was extraordinarily tolerant in his assessment of these examples. It is quite absurd to suggest that the gender exception in section 9 was intended by the Oireachtas to cover only farfetched theoretical examples of clubs that did not even exist, to say nothing of the fact that even if such clubs did exist it would be highly unlikely that they would be “registered” clubs with the consequent right to have a bar supplying liquor to each other ve already made clear my view that the section 9 exemptions were intended for real existing concrete situations.

  267. It is also clear from the judgment of the High Court that counsel for the Equality Authority in argument before that court conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a particular nationality or ethnic or national origin the word “needs” would have to be construed broadly so as to include the cultural needs of such persons. The learned High Court judge, however, rightly took the view that it would be wrong to apply a wider definition of “needs” to some exemptions than to others.

  268. The club, in its submissions, points out also a factor that is not without significance. Section 9(1)(a) of the Act does not include all the discriminatory grounds set out in section 3(2). Omitted are “race” and “colour”. It follows that a club established for the principal purpose of catering only for the needs of persons of a particular race or colour would not be entitled to the exemption under section 9(1) which would mean it would not be able to refuse membership to other persons.

  269. I have not up to now mentioned the fact that women may play golf in Portmarnock club by paying a green fee and may use the bar facilities etc. In that instance, however, the club is simply providing external facilities. Indeed, it means that they are not discriminating in the provision of services as such. Entitlements of female non-members to play golf in Portmarnock is not a point that is either helpful in argument to the club or to the Equality Authority on the points at issue. It is neutral evidence.

  270. What is of significance, however, is that the exemption under section 9 does not apply to race or colour. This to some extent reinforces the argument of the club that the exemption is intended to be widely interpreted in relation to the other grounds of discrimination under section 8.

  271. Paragraph 25 of the written submissions of the club to this court summarises the position correctly. The paragraph is worth quoting and reads as follows:

  272. The club’s submission as to the proper interpretation of sections 8 and 9 makes full sense against this factual background. Section 9(1)(a) is a total exception from the requirements of section 8(2)(a)(i) and 8(2)(b)(i), save that a club can neither (A) choose or refuse members on the basis of race or colour nor (B) choose positively to exclude members on the basis of a proscribed ground. However it is permissible for a club to include on a proscribed ground (other than race or colour) even if that incidentally results in the exclusion of a group defined by a proscribed ground.

  273. As the learned High Court judge pointed out the exemption becomes almost meaningless if the Equality Authority’s interpretation is correct. On the other hand, if the Equality Authority’s interpretation is not correct, that does not mean that gender discrimination may not render a club a “discriminating club” within the meaning of section 8 and not exempt by section 9. Persons admitted to membership of a club may be discriminated within such club by virtue of one of the prohibited grounds. As counsel for the Portmarnock club point out, for instance it is well-known that there may be what they describe as “dual structure” golf clubs with separate rules for men and women as to the days and times for playing etc. Section 9 would not be relevant to this type of discrimination as it applies only to single structure clubs.

  274. The learned District Court judge, in her judgment, referred to the traditional principles of statutory interpretation as set out in the judgment of Blayney J. in Howard v The Commissioner of Public Works [1994] I I.R. 309. Even when adopting the traditional literal interpretation, however, a court does not do so in a vacuum. If there are problems of interpretation it must always bear in mind, context. Like the learned High Court judge and with respect to the learned District Court judge, I find the arguments of the club more convincing for the reasons which I have indicated and I would, therefore, dismiss the appeal.

  275. Justice Denham

  276. In the High Court two cases, which arise out of the same set of facts, were taken together. There were two principal issues:

    1. the interpretation of sections of the Equal Status Act, 2000, and

    2. the constitutionality of the Equal Status Act, 2000.

  277. This Court decided to proceed first on the issue of statutory interpretation, which is essentially the issue arising on the case stated from Mary Collins, Judge of the District Court. However, because the issues are somewhat interlinked, while the State is not a party to the case stated, the Court indicated that it would hear any submissions which the State wished to make on the interpretation of the Equal Status Act, 2000, referred to as "the Act of 2000".

  278. Case Stated

  279. The case stated arose pursuant to s.2 of the Summary Jurisdiction Act 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961. At sittings of the District Court, at Court 54, Richmond Hospital, North Brunswick Street, Dublin 7, on the 28th November, 2003, and at Court 40, Dolphin House, Dublin 2, on the 19th January, 2004, Portmarnock Golf Club, Daniel Lynch, Colin Harnett, T.M. Healy, Joseph Leyden, Joseph McAleece, W.P. Twamley and R.C. Cuddy, the defendants / respondents, and hereinafter referred to as "Portmarnock", appeared to answer a complaint by The Equality Authority, the plaintiff, and hereinafter referred to as "the Authority".

  280. The complaint was made pursuant to s.8 of the Act of 2000. The Authority sought a determination of the court that Portmarnock is a discriminatory club for the purpose of s.8 of the Act of 2000, and for an order suspending the certificate of registration of the Club for a period not exceeding thirty days.

  281. Evidence was given to the District Court on behalf of Portmarnock by the Secretary Manager of the Club and the Captain of the Club. Facts were proved, admitted or agreed, and held by the District Court, as follows.

  282. Facts

  283. Portmarnock, founded in 1894, is one of the oldest golf clubs in Ireland and is affiliated to the Golfing Union of Ireland, the body which regulates men's golf in Ireland.

  284. Portmarnock has for many years been the holder of a certificate of registration under the Registration of Clubs Act, 1904 to 1999, referred to herein as a "drinks licence", and during that time has not been the subject of complaint or prosecution by An Garda Síochána in respect of the provision of intoxicating liquor on its premises.

  285. Evidence was given that there were 662 members and 625 associate members of Portmarnock, all of whom are men. Under its rules, since it was established in 1894, Portmarnock consists of members and associate members who are "gentlemen properly elected" and who conform with the rules of amateur status prescribed by the Royal and Ancient Golf Club of St. Andrews.

  286. Women may play golf at Portmarnock either with or without a member on identical terms to those applicable to all non-members. Women may play the course at Portmarnock on seven days a week on payment of green fees at the times permitted for such play. There are at least three competitions played at Portmarnock each year in which women take part as guests. Portmarnock provides changing facilities and locker rooms specifically for women as part of the clubhouse complex. Women are entitled to access a bar and restaurant and other clubhouse facilities on an equal basis to men, with the exception of the men's locker rooms and toilets. A score card is available to women golfers playing the course and Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies' Golfing Union, the body which regulates women's golf in Ireland.

  287. On the 17th April, 2003 the Chief Executive of the Authority decided to initiate proceedings against Portmarnock. That decision was made pursuant to a board minute of the 6th November, 2001.

  288. District Court

  289. On the 20th February, 2004, the District Court held that Portmarnock is a discriminating club within the meaning of s.8 of the Act of 2000.

  290. On the 18th May, 2004, the District Court made an order under s.8(7)(a) of the Act of 2000 suspending the certificate of registration of Portmarnock for a period of seven days.

  291. The opinion of the High Court was sought as to whether the District Court was correct in law in making the above stated determinations.

  292. Plenary Summons

  293. The second set of proceedings were brought by Robert C. Cuddy and David Keane suing in their capacity as trustees of Portmarnock, and hereinafter referred to as "the trustees". These proceedings were commenced by way of plenary summons. The Authority, Ireland and the Attorney General were named as defendants.

  294. In the second case the trustees sought:-

    1. A declaration that Portmarnock is not a discriminating club within the meaning of that term in s.8 of the Act of 2000.

    2. Further, or in the alternative, a declaration that by reason of the provisions of s.9(1)(a) of the Act of 2000 Portmarnock shall not be considered to be a "discriminating club" for the purposes of s.8 of the Act of 2000.

    3. A declaration that it is not open to the Authority to make any application to the District Court pursuant to s.8(3) of the Act of 2000 requesting that the District Court make a determination as to whether Portmarnock is a "discriminating club" within the meaning of that term in s.8 of the Act of 2000.

    4. An order restraining the Authority, its servants or agents, from making any application to the District Court pursuant to s.8(3) of the Act of 2000 requesting that the District Court make a determination as to whether Portmarnock is a "discriminating club" within the meaning of that term in s.8 of the Act of 2000.

    5. Further, or in the alternative, if the provisions of s.9(1)(a) of the Act of 2000 do not, on their proper construction, apply to Portmarnock, and/or if Portmarnock is a "discriminating club" for the purposes of s.8 of the Act of 2000, the provisions of ss.8, 9 and 10 of the Act of 2000 are invalid having regard to the provisions of Articles 40.1, 40.3, 40.6.1 and 43 of the Constitution of Ireland.

    6. Damages for breach of statutory duty, for breach of Portmarnock's constitutional rights; interest and costs were also sought.

    The High Court

  295. The High Court (O'Higgins J.) held that the two proceedings before the High Court fell to be decided on two grounds. The first ground was based on the interpretation of ss.8 and 9 of the Act of 2000. The second related to the constitutionality of sections of the Act of 2000. The learned High Court judge dealt first with the interpretation of the relevant sections of the Act of 2000 and then considered arguments on the issue of the constitutionality of the legislation.

  296. On the issue of the interpretation of the Act of 2000 O'Higgins J. concluded:-

  297. In my view therefore on a correct interpretation of the section Portmarnock Golf Club – whose principal purpose is to cater only for the needs of male golfers comes within the exceptions of s.8 of the Equality Act (sic) provided for by s.9.

    The High Court declared that by reason of the provisions of s.9 of the Act of 2000 Portmarnock:-

    .... shall not be considered a discriminating Club for the purposes of section 8 of the Equal Status Act 2000.

  298. The learned High Court judge then referred to the constitutional issue, stating:-

  299. I have reached a conclusion on the interpretation of the relevant section of the Equal Status Act 2000 without the necessity of making that decision on the basis that such interpretation was necessary in order to uphold the constitutionality of the Act. It is unnecessary therefore to decide the Act on constitutional grounds and there is ample authority in these circumstances that the Court should not do so (see Murphy v Roche [1987] I.R. 106, Brady v Donegal County Council [1989] 1 I.L.R.M. 282 and McDaid v Sheedy [1991] 1 I.R. 1). However, in deference to the arguments made in court and for the purposes of expedition in the event of a different conclusion being made elsewhere, I consider it appropriate to make some comments on the constitutional arguments.

    The learned trial judge then proceeded to consider and make comments on the constitutional issues.

    Notice of Appeal

  300. The Authority filed a notice of appeal with 28 grounds of appeal. Reference was made to ss.8 and 9 of the Act of 2000 and it was claimed that the learned trial judge erred in his interpretation and application of these sections.

  301. The trustees also filed an appeal against the judgment of the learned trial judge. Their twenty one grounds of appeal included the grounds that:-

    1. the learned High Court judge erred in proceeding to deliver a judgment setting out his "comments" on the issues concerning the constitutionality of ss.8, 9 and 10 of the Act of 2000 notwithstanding his conclusions on the correct interpretation of those provisions on foot of the case stated;

    2. the learned High Court judge erred in proceeding to deliver judgment on the constitutional issues and arguments when it was not necessary for him to do so having regard to his conclusions on the interpretation issues;

    3. the High Court erred in proceeding to deliver judgment on the constitutional issues when the issues between the parties could and ought to have been determined by resolution of issues of law, including the interpretation of the Act of 2000, other than the constitutional law issues.

    Issue

  302. This Court decided to consider first the issue of the construction of the Act of 2000. Counsel acting on behalf of the parties were requested to address only the issue of the interpretation of the statute. Therefore, the issue before the Court is the interpretation of the relevant sections of the Act of 2000.

  303. Law

  304. The Act of 2000 is described in the long title as an Act to promote equality and to 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, amongst other matters. Section 3 defines discrimination for the purpose of the Act. Section 4 covers discrimination on the ground of disability. Section 5(1) refers to the disposal of goods and the provision of services, prohibiting discrimination in disposing of goods to the public generally or a section of the public or in providing a service. While discrimination in the disposal of goods and services to the public is prohibited in general, there are exceptions. Section 5(2)(a) provides that s.5(1) does not apply in respect of a service offered to its members by a club in respect of which s.8 applies. Also section 5(2)(g) provides that s.5(1) does not apply in respect of differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender. Clearly this refers to services such as single sex changing rooms. The specialist nature of the exceptions is seen in s.5(2)(h) which provides that s.5(1) does not apply in respect of:-

  305. differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests.

  306. This refers to the special needs of groups, to disadvantaged groups, where the discrimination is reasonably necessary. For example, where the State provides language classes for foreign nationals, nationals are excluded. Similarly, s.5(2)(i) states that s.5(1) does not apply in respect of:-

  307. differences in the treatment of persons on the gender, age or disability ground or on the ground of race, reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment.

  308. This discrimination is allowed on the grounds, inter alia, of gender, where it is reasonably required on the basis of authenticity, etc. in connection with a dramatic performance or other entertainment. This brings to mind an entertainment traditionally provide by a gender, prohibiting another – reasonably – because of tradition, authenticity or custom. Perhaps sumo wrestling by gentlemen and belly dancing by ladies might be somewhat frivolous illustrations. However, s.5 does not govern the issue in this case. Although, perhaps it sheds some light on the exclusions from the rule against discrimination in that they are limited, they protect disadvantaged or special groups, and they uphold ethnic and traditional customs. The section is not applicable to the facts of this case which are expressly governed by the words of section 8 and section 9.

  309. Section 6 prohibits discrimination in the disposal of any estate or interest in premises, the termination of any tenancy or other interests in premises, and the provision of accommodation and related services. Section 7 relates to discrimination in education and educational establishments.

  310. Section 8 is at the core of this case. This section relates to discriminating clubs and provides for intervention when the club holds a drink licence, i.e. is registered under the Registration of Club Acts. The section does not apply to a club without a drinks licence. Thus clubs without a drinks licence are not covered by the section and consequently may have any type of membership it wishes. However, a club which has the privilege of a licence may not discriminate if they wish to keep their licence.

  311. Section 8

  312. Section 8 provides:-

  313. (1)

    In this section –  

    “certificate of registration”, in relation to a club, means the certificate of registration of the club under the Registration of Clubs Acts, 1904 to 1999; “club” means a club that has applied for or holds a certificate of registration.

    (2)

    For the purposes of this section –  

    (a)

    a club shall be considered to be a discriminating club if – 

    (i)

    it has any rule, policy or practice which discriminates against a member or an applicant for membership, or

    (ii)

    ....

    (b)

    without prejudice to the generality of paragraph (a), any of the following acts, if done by a club or a person involved in its management on any of the discriminatory grounds, is evidence that the club is a discriminating club:

    (i)

    refusing to admit a person to membership;

    (ii)

    providing different terms and conditions of membership for members or applicants for membership;

    (iii)

    ....

    (iv)

    ....

    (3)

    Any person, including the Authority .... may, on application to the District Court .... request that the Court make a determination as to whether a club is a discriminating club.

    ....

    (6)

     

    After considering the representations, the [District] Court shall – 

    (a)

    make an order in writing setting out its determination as to whether or not the club is a discriminating club, and

    (b)

    cause a copy of the order to be transmitted to the Minister.

    (7)

    (a)

    Where –  

    (i)

    the [District] Court makes an order under subsection (6)(a) setting out its determination that a club is a discriminating club, and

    (ii)

    the order is the first such order in relation to the club,

    the [District] Court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days.

    ....

    (8)

    (Provision for appeal to Circuit Court)

    (9)

    (Provision for period of suspension of certificate of registration)

    ....

    (11)

     

    An order under this section suspending the certificate of registration of a club shall, while it is in force, have effect for the purposes of the Registration of Clubs Acts, 1904 to 1999, as if no certificate under those Acts had been granted in respect of the club for the period of suspension.

    Section 9

  314. Section 9 makes provision for non-discriminating clubs. It provides:-

  315. (1)

    For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that –  

    (a)

    if its principal purpose is to cater only for the needs of  –  

    (i)

    persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

    (ii)

    persons who are members of the Traveller community, or

    (iii)

    persons who have no religious belief,

    it refuses membership to other persons,

    (b)

    it confines access to a membership benefit or privilege to members within the category of a particular gender or age, where –  

    (i)

    it is not practicable for members outside the category to enjoy the benefit or privilege at the same time as members within the category, and

    (ii)

    arrangements have been made by the club which offer the same or a reasonably equivalent benefit or privilege both to members within the category and to members outside the category,

    (c)

    it has different types of membership, access to which is not based on any discriminatory ground,

    (d)

    for the purpose of reducing or eliminating the effect of any rule or practice of the club (whether adopted before or after the commencement of this section) restricting access to particular types of membership to persons of a particular gender it offers concessionary rates, fees or membership arrangements to persons who were or are disadvantaged by any such rule or practice, or

    (e)

    it provides different treatment to members in the category of a particular gender, age, disability, nationality or national origin in relation to sporting facilities or events and the different treatment is relevant to the purpose of the facilities or events and is reasonably necessary.

    [emphasis added]

    Portmarnock's Membership

  316. The issue in this case arises primarily because of rule 3 of Portmarnock's rules, which provides that Portmarnock shall consist of members and associate members who shall be "gentlemen properly elected". Women are not permitted to become members or associate members of the Club. Women may, however, play golf there either with or without a member on the payment of a green fee. Portmarnock provides changing facilities and locker rooms for women, and women are entitled to access a bar and restaurant and all other Clubhouse facilities available at Portmarnock. A ladies' scorecard is available to women golfers and Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies' Golfing Union, the body which regulates women's golf in Ireland.

  317. High Court Judgment

  318. The High Court pointed out that:-

  319. .... both parties argued as to the correct interpretation and meaning of the "principal purpose" in that section. The plaintiffs on behalf of Portmarnock Golf Club argue that the principal purpose of the Club is to cater only for the needs of persons of a particular gender, that is male golfers. The Club refuses membership to any other persons.

  320. The learned trial judge stated that the question is not whether the legislation permits single gender clubs – as it does – but whether Portmarnock is one of the type of single gender clubs envisaged by section 9. The High Court referred to Portmarnock's argument that a correct interpretation of the Act of 2000 has the effect of removing all clubs whose principal purpose is to cater only for the needs of persons of a particular gender from the ambit of s.8 of the Act. It was submitted that while s.8 targeted gender discrimination, amongst other forms of discrimination, s.9 provided for exceptions. The learned High Court judge stated:-

  321. This interpretation presupposes that all clubs are for some purpose, and the plaintiffs submit the exception provided for in s. 9 is not dependent on the activities of the club, but rather on the category of the persons whose needs are catered for by the club. If the principal purpose of the club is to cater for the needs of persons falling within the exempted category then the club is exempt regardless of its activities. The plaintiffs argue for a relatively broad interpretation of the word "needs" in s. 9 and submit that it includes the social, cultural and recreational needs. It is submitted that such interpretation is necessary for a sensible reading of the section.

  322. The learned trial judge held that:-

  323. In attempting to interpret the meaning of the gender based exception in s. 9 of the Equal Status Act, it is instructive and helpful to ask what kind of single gender clubs are contemplated by the Act as falling into the exception specifically provided for in s. 9 of the Act. In view of her finding that the purpose of the club was to play golf and that mens golf did not constitute a "special need" the learned District Judge did not find it necessary to address this issue. Although the Equality Authority submitted that there must be a logical connection between the objects of the club and gender, it is significant that the court was not provided with any example of an existing club of that type. No convincing example was given of any theoretical club which might fit into the definition contended for by the Equality Authority. The example proffered of a club for men who have a perceived grievance concerning the administration of justice in the family courts, and who wished to provide mutual support in some practical fashion such as babysitting, is not at all convincing. That example does not fall within the logical connection test argued for by the Equality Authority because there is nothing gender specific in a perceived grievance that men are not treated properly in the family courts. There is nothing gender specific in relation to the practical assistance of babysitting. In the example proffered by the Equality Authority the logical connection test is not satisfied.

  324. Counsel for the Equality Authority adopted the finding of the District Judge that:

  325. 'the ordinary words of the statute do not ascribe to mens golf a special need' and said 'that a golf club did not cater for the 'needs' of men'.

  326. The argument of counsel and the finding of the District Court would in my view be readily acceptable were the definition of the word "needs" to be construed very narrowly to mean only "requirements", but the definition as set out in the District Court decision itself also extends to "that which is wanted" – a much broader and less stringent criterion than "requirements". In my view an unduly stringent interpretation of the word "needs" would render quite meaningless the s. 9 based exceptions in the case of persons of a particular nationality or ethnic or national origin (another category of persons encompassed by the provisions of s. 9 of the Act). It is difficult to see how persons could have different "needs" based on nationality if the word "needs" were to be narrowly construed as being "requirements". For example, in the case of an Italian national it is difficult to see what his or her requirement referable only to nationality might be, that would differ from the requirements of non-Italians if the word "needs" were to be narrowly construed. Indeed, counsel for the Equality Authority rightly conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a particular "nationality or ethnic or national origin" the word "needs" would have to be construed broadly so as to include the cultural needs of the nationality in question. I agree. However, if the word "needs" is to be interpreted in such a non-restrictive fashion in relation to clubs catering for persons of a particular nationality, it cannot be given a more restrictive interpretation when applied to single gender clubs in the same section of the same Act. I cannot see how cultural needs fall within the definition of needs in relation to a person of a particular nationality, while at the same time the sporting needs in relation to persons of a particular gender would be excluded. There are even those who would go so far as to equate sport with culture, although – perhaps fortunately – that argument was not advanced in the present case."

  327. Rules of Portmarnock Golf Club

  328. The rules of Portmarnock in relation to membership provide:-

  329. 3.

    The Club shall consist of Members and Associate Members, as defined below, who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status, for the time being, prescribed by The Royal and Ancient Golf Club of St Andrews.

    In other words, Portmarnock confines its membership to gentlemen.

  330. The issue as to whether Portmarnock is a discriminating club under the statute turns on the construction of s.8 and s.9 of the Act of 2000. While section 8 prohibits discrimination, exceptions are provided for in section 9.

  331. Submissions

  332. Written and oral submissions were made on behalf of the parties.

  333. 1 Extensive written submissions were made on behalf of the Authority. The Authority submitted that the Act of 2000 seeks to address discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community. It was submitted that the Act of 2000 was adopted in order to comply more fully with Ireland's obligations under the 1979 United Nations Convention on the Elimination of all Forms of Discrimination Against Women and to enable Ireland to ratify the 1966 United Nations Convention on the Elimination of all Forms of Racial Discrimination. While the Act of 2000 prohibits discrimination in a number of areas, these proceedings deal specifically with clubs which usually have over 150 members. The Act of 2000 established the concept of "discriminating clubs", which hold certificates of registration under the Registration of Clubs Acts 1904 to 1999 being necessary for the sale of alcohol.

  334. The Authority submitted that the Act of 2000 aimed to address discrimination in specific fields of Irish society. One such field was the membership of recreational and sporting clubs and in particular golf clubs, many of whom allowed women only a limited membership and others which completely barred women. It was submitted that Portmarnock prohibits women from becoming members and that it is only if Portmarnock can avail of the exemption provided by s.9 of the Act of 2000 that it can avoid the consequences of being a "discriminating club" for the purposes of the Act of 2000. It was submitted by the Authority that the meaning of the statute is plain and that Portmarnock is a discriminating club under the Act of 2000. It was submitted that a literal interpretation of the Act of 2000 which gives the words of s.8 and s.9 their ordinary meaning results in the single conclusion that Portmarnock is a discriminating club under the Act of 2000. Further, it was submitted, that even if there were a need to depart from the literal meaning of the words used it is clear that the purpose of the Act is to promote equality and prohibit discrimination. It was argued that Portmarnock discriminated against women but that it seeks to justify this under section 9. It was submitted that a purposive or teleological interpretation of the Act of 2000 can only support the interpretation which results in Portmarnock being found to be a discriminating club. Counsel submitted that Portmarnock is a discriminating club for the purposes of s.8 of the Act of 2000 and cannot avail of the exception provided by section 9.

  335. 2 Extensive written submissions were made also on behalf of Portmarnock. It was pointed out that the issue raised by the appeal was the true interpretation of section 9(1)(a) of the Act of 2000. It was submitted that the interpretation of s.9 by the judgment of the High Court was impeccable. It was submitted that the clear and obvious meaning of s.9(1)(a) of the Act of 2000 is that clubs may choose to include members on discriminatory grounds (other than race and colour) even if that method of inclusion necessarily excludes a certain group or groups identifiable by reference to discriminatory grounds. However, a club is not permitted to target a particular group for exclusion from membership. Nor is a club permitted, having chosen to associate with a particular membership, to discriminate within that membership on any of the proscribed grounds, save as expressly permitted by the Act of 2000. It was submitted that this interpretation correctly identifies the mischief at which s.8 is aimed, while preserving meaningful scope to the exception drawn by section 9(1)(a).

  336. Mr Donal O'Donnell S.C., in oral and written submissions, advanced the legal argument for Portmarnock. Counsel submitted that the mischief to which the Act was directed was clear, it was concerned that within clubs there was discrimination; women could not use the bar, etc. Counsel submitted that s.8 does not permit different treatment of members and he proceeded to address issues of dual membership within clubs and submitted that that was the mischief to which the Act of 2000 was addressed. While this was skilfully argued, and such mischief is covered by the Act of 2000, I am of the view that the mischief to which the Act was directed was not so limited.

  337. Counsel drew the Court's attention to the EU context, Council Directive 2004/113/E.C. Attention was drawn to recitals, including Recital (i) which refers to respect for human rights, fundamental freedom, the rule of law and constitutional traditions. Recital 16 was raised, which refers to differences in treatment being justified only by a legitimate aim: such as single sex shelters, single voluntary bodies, freedom of association (including single sex private clubs) and the organisation of sporting events: any limitation should be appropriate and necessary in accordance with the criteria of case law from the European Court of Justice. Counsel submitted that the Act of 2000 has to be read as achieving the aims of the Directive.

  338. While I agree with counsel's general analysis, however, the facts of a case have to be analysed to consider whether there has been discrimination under the Act of 2000. Thus in this case the facts of Portmarnock are analysed under the requirements of section 9(1)(a). Whether or not there is similar legislation in other jurisdictions does not assist the statutory interpretation of the Act of 2000 in this State.

  339. Counsel also submitted that if there was an ambiguity in the Act of 2000 the Court would have to adopt the interpretation advanced on behalf of Portmarnock because it impinges less upon the right of association. As I find no ambiguity in s.9(1)(a) this issue does not arise.

  340. Counsel referred to the constitutional context. He submitted that if Portmarnock were not to win the case it would be a denial of the freedom of association, or a regulation of that right, which would be disproportionate to any permissible aim. Reference was made to cases on the constitutional right of association here, in the United States of America and in Canada.

  341. At issue before this Court at this time is the construction of s.9(1)(a) of the Act of 2000. In essence it is whether Portmarnock is a discriminating club under the legislation or not. The constitutionality of the Act of 2000 is not before the Court. Consequently, it is neither necessary nor appropriate at this time to consider the constitutionality of the legislation.

  342. The issue in this appeal is the construction of s.9(1)(a) of the Act of 2000. In addressing that issue I have considered carefully and borne in mind the written and oral submissions made to the Court on behalf of the parties.

  343. Decision

  344. The issue before the Court is the interpretation of ss.8 and 9 of the Act of 2000. Having construed the sections it is then necessary to apply that law to the facts of the case.

  345. Section 8

  346. Section 8 defines and refers to discriminating clubs. The section does not apply to all clubs, however it does apply to those which hold a drinks licence. The statute does not apply to a club which does not have a drinks licence. In other words the sanction put in place by the Oireachtas is the withdrawal of a drinks licence.

  347. Section 8 establishes a general rule of law that a club which holds a drinks licence may not discriminate. Under section 8(2)(a) a club is defined as being a discriminating club if it has any rule, policy or practice which discriminates against a member or an applicant for membership. Section 8(2)(b) lists a number of acts any of which, if done by a club, is evidence that a club is a discriminating club. Included in the list are: (i) the act of refusing to admit a person to membership; and (ii) providing different terms and conditions of membership for members or applicants for membership.

  348. Discrimination is defined in s.3 of the Act of 2000. Section 3(2) provides that, as between two persons, discriminating grounds include that one is male and the other female – the gender ground.

  349. Thus section 8 provides a general rule that, in the relevant clubs, discrimination is illegal and this includes gender discrimination.

  350. Construing Statutes

  351. The ordinary rules of statutory interpretation apply to construing the words of the Act of 2000. In Howard v The Commissioners of Public Works [1994] 1 I.R. 101, at p.151, Blayney J. stated the general principles to be applied and adopted Craies on Statute Law 7th Ed., (1971) at p.65, as follows:-

  352. The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver.

  353. In D.B. v Minister for Health [2003] 3 I.R. 12 McGuinness J. stated at pp.49 and 50 that:-

  354. It may, I think, be safe to sum up the judicial dicta in this way. In the interpretation of statutes the starting point should be the literal approach – the plain ordinary meaning of the words used. The purposive approach may also be of considerable assistance, frequently, but not invariably, where the literal approach leads to ambiguity, lack of clarity, self-contradiction, or even absurdity. In the interpretation of a section it is also necessary to consider the Act as a whole. As was stated by Keane J. (as he then was) in Mulcahy v Minister for the Marine (High Court 4th November, 1994):

    While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.

  355. Following the well trodden path laid by common law on the interpretation of statutes, I will first consider the literal meaning of the words. If the words are precise and unambiguous then it is necessary only to interpret the words in their ordinary and natural meaning. If the literal approach leads to ambiguity or an absurdity, then I will apply the purposive approach, and consider the Act of 2000 as a whole.

  356. Section 8 considered

  357. Under section 8 Portmarnock is a "club" as it holds a certificate of registration, a drinks licence. In accordance with s.8 a club shall be considered to be a discriminating club if it has any rule which discriminates against a member or an applicant for membership. Any of the following acts, if done by the club, is evidence that it is a discriminating club – for example, refusing to admit a person to membership, providing different terms and conditions of membership for members or applicants for membership.

  358. Under the rules of Portmarnock only "gentlemen" may be members. Ladies are excluded from membership by the rules. This is gender discrimination. Portmarnock is in breach of the law against discrimination as established under section 8. Portmarnock is a discriminating club under section 8.

  359. Section 9 considered

  360. The decision in this case rests on the words of section 9. Section 9 makes provision for some exceptions to the general rule against discrimination established in section 8. The question is whether Portmarnock comes within the exception provided. Section 9 provides that in certain instances a club shall not be considered to be a discriminating club under section 8. These instances arise if its principal purpose is to cater only for the needs of

    1. persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

    2. persons who are members of the Travelling Community, or

    3. persons who have no religious belief, and it refuses membership to other persons.

    This case centres around the first exception – that it shall not be considered to be a discriminating club if its principal purpose is to cater only for the needs of persons of a particular gender.

  361. Clearly section 9 makes provision for single gender clubs. However, these are limited to the terms set out in section 9. Section 9(1)(a) makes provision for non-discriminating clubs, and permits discrimination in certain circumstances. The portions of the statute relevant to this case, in s.9(1)(a), are as follows:-

  362. .... a club shall not be considered to be a discriminating club by reason only that –  

    (a)

    if its principal purpose is to cater only for the needs of –  

    (i)

    persons of a particular gender ....

    it refuses membership to other persons.

    [emphasis added]

    Key words are "principal purpose", "cater only" and "needs".

    "Principal purpose"

  363. The legislation permits a club to discriminate if its "principal purpose" is to cater only for the needs of persons of a particular gender. Therefore, it is necessary to identify the principal purpose of Portmarnock.

  364. It is relevant to note that the legislation does not refer to the "purpose" or "purposes" of the club. Rather the legislation refers specifically to the "principal purpose". Thus under the statute it is necessary to identify the principal purpose of Portmarnock, which does not mean that there may not be other purposes, and to find out whether that principal purpose is to cater only for the needs of men.

  365. The learned trial judge accepted submissions made on behalf of Portmarnock. These included the submissions that although discrimination, including on the grounds of gender, was clearly targeted by s.8 of the Act of 2000 in respect of clubs in general, that s.9 provided exceptions if the principal purpose of the club is to cater for the needs of persons of a particular gender. The learned trial judge accepted the submission that this presupposes that all clubs are for some purpose. The learned trial judge referred to Portmarnock's submission that the exception provided for in s.9 is not dependent on the activities of the club, but rather on the category of the persons whose needs are catered for by the club, that if the principal purpose of the club is to cater for the needs of persons falling within the exempted category then the club is exempt regardless of its activities. The Club argued for a relatively broad interpretation of "needs" in s.9, that it included social, cultural and recreational needs.

  366. I respectfully disagree with the learned High Court judge and I am of the view that he fell into error in construing the legislation on the presupposition that all clubs are for some purpose. Under the Act of 2000 it is necessary to determine the principal purpose of a club from the facts and there may be no presumption that all clubs are for a purpose or to commence from that presumption. The analysis should start from the facts of the case to determine the principal purpose of a club. The words of s.9 providing that a club shall not be considered a discriminating club are clear. They exempt a club:

  367. if its principal purpose is to cater only for the needs of ....

    persons of a particular gender.

  368. There is no ambiguity in these words. Nor is there any room under the statute for a presumption or presupposition as to some purpose. Consequently, I am satisfied that the learned trial judge erred in his presupposition and in his construction of these words.

  369. To construe section 9, and to apply it, it is necessary to determine the principal purpose of Portmarnock.

  370. To identify the principal purpose of Portmarnock I shall consider its rules. The first rule of Portmarnock is that the name shall be "Portmarnock Golf Club". Thus the name states its location and a purpose – golf.

  371. The second rule has the heading "Game". It states that the rules of golf for Portmarnock shall be the rules of golf, as approved from time to time by the Royal and Ancient Golf Club of St. Andrews. This rule is thus also addressed to the issue of the playing of golf, although inferences may be drawn from it as to whom it is referring.

  372. Rule 3 deals with membership. It provides that the Club shall consist of members and associate members, who shall be "gentlemen properly elected" and who shall conform with the rules of amateur status prescribed by the Royal and Ancient Golf Club of St. Andrews.

  373. There is also provision for other members, all being men or boys. There are details as to how members may be admitted, as to subscriptions and entrance fees, as to officers, management, accounts, general meetings, change of rules, notices, breach of discipline.

  374. As was found by the learned trial judge, while women are not permitted to become members or associate members of Portmarnock, women may play golf there, either with or without a member, on the payment of a green fee. Portmarnock provides changing facilities and locker rooms for women. Women are entitled to access a bar and restaurant and other clubhouse facilities. A ladies scorecard is available to women golfers. Also, Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies' Golfing Union. It is clear that women are fully catered for to play golf at Portmarnock.

  375. Having considered the rules I am satisfied that primarily they refer to a golf club in Portmarnock, called Portmarnock Golf Club. The next question is whether this principal purpose is qualified by the remaining words of the phrase in s.9(1)(a), being "to cater only for the needs of" men.

    "To cater only for the needs of" men

  376. Referring to the relevant words of s.9(1)(a), they state that a club will not be a discriminating club if its principal purpose is to cater only for the needs of a particular gender, in this case, men. Thus Portmarnock would not be a discriminating club if its principal purpose is to cater only for the needs of men.

  377. The words "to cater" are defined in the Concise Oxford Dictionary 8th Edit. as to supply food, provide meals for, provide entertainment for, to pander to. The words "to cater" are words in general use and are clear and precise. They usually are applied in relation to the provision of food. If this narrow construction were taken it could be related only to the restaurant etc. However, the High Court found that women are entitled to access a bar and restaurant and all other clubhouse facilities on an equal basis to men. Thus on the facts women are "catered for" in the provision of food also.

  378. In general, and in the particulars in this case, the words "to cater" may be construed as having a wider dimension than just the provision of food. It appears to me that the words refer to "making a provision for".

  379. It is notable that s.9(1)(a) has the word "only" after the words "to cater". It is a limiting word. It identified that the club would be catering "only" for a specific group. Thus, in an issue of gender discrimination, it would be catering "only" for one gender. However, as the facts of the case indicate, Portmarnock caters for men and women, but differently. Women are not excluded from the Golf Club. They are excluded from membership.

  380. This brings me on to the further qualifying words of s.9(1)(a) being "the needs of". It is notable that the term used is "needs". The word "needs" is defined in the Concise Oxford Dictionary 8th Edit. as "of necessity", and reference is made to the phrase "needs must". This definition is consistent with the clear meaning of the word in general use. The word raises the concept of a necessity, of what must be, of an inexorable requirement. It is not simply a choice.

  381. Section 9(1)(a) provides that there may be single gender clubs when the principal purpose is to cater only for the needs of a single gender. There should be a logical connection between the objects of the club and the gender. There was an example given to, and referred by, the High Court as "a club for men who have a perceived grievance concerning the administration of justice in the family courts and who wished to provide mutual support in some practical fashion such as babysitting". This was dismissed as "not at all convincing". I would not dismiss such an example out of hand.

  382. Application of the facts under section 9

  383. I am of the view that on the face of the rules the principal purpose of Portmarnock is the playing of golf. Further, it does not cater only for the needs of men. It caters for men and for women but in different ways. Both men and women may play golf and use facilities and the Clubhouse, but only men may be members.

  384. The words of s.9(1)(a) are clear and precise. Thus it is necessary only to interpret the words in their natural and ordinary meaning. Giving the words their natural and ordinary meaning they do not include Portmarnock. The principal purpose of Portmarnock is golf. It does not cater only for men. It caters for women also, in a different manner. To obtain the protection of s.9(1)(a) there should be a logical connection between the objects of the club and the gender. In this case Portmarnock's principal object is golf and there is not logical connection between that object and the gender on the facts. There are no "needs" connected to the men who are gentlemen members such as to necessitate the club and enable it receive the protection and be an exception to the general rule as provided for in section 9 of the Act of 2000.

  385. However, if there were any ambiguity, which I do not find, the Act of 2000 should be interpreted purposively. The Act of 2000 should be interpreted in accordance with the intent of the legislature. The Act of 2000 was a remedial social statute. Its purpose was to promote equality and prohibit certain forms of discrimination.

  386. Section 8 lays down the general rule prohibiting discrimination, including gender discrimination. Section 9 provides some exceptions. The exceptions should not be interpreted so broadly as to negate the rule set down in section 8. Rather, the exceptions in section 8 should be construed narrowly.

  387. Section 9(1)(a) is an exception to the broad rule against discrimination set out in section 8. The words of s.9(1)(a) are limiting. On the facts of this case they provide an exception only if Portmarnock's principal purpose is to cater only for the needs of men. It is my view that Portmarnock is not covered by s.9(1)(a) as its principal purpose is golf.

  388. Several arguments addressed by the High Court

  389. The learned trial judge dealt specifically with several arguments, to which I shall refer in the same order.

    1. The fact that Portmarnock caters for women golfers as well as men is a relevant factor. I am satisfied that this is relevant in analysing the facts and in determining whether it is a club with the principal purpose "to cater only for the needs" of men. Portmarnock caters for men and women. It caters more fully for men than women, but that is not the test set by the statute – which is to "cater only for the needs of" men.

    2. Rule 14(4) is relevant in the analysis of the principal purpose of the Club. That rule provides "The Club, being primarily devoted to golf, being an athletic purpose, may admit persons under the age of eighteen years as Members but no excisable liquor shall be sold or supplied in the Club premises to any person under the age of eighteen years be they Members or not ..." The rule specifically states that Portmarnock is primarily devoted to golf. The word "primarily" is similar to the term "principal purpose". Further, the fact that it is a golf club is underscored by the reference "being an athletic purpose". Indeed, the wording of this rule essentially states that Portmarnock is "primarily" devoted to golf, being its "purpose".

    3. Section 8 of the Act of 2000 is a powerful general rule against discrimination. Section 9 provides for some exceptions and is limited in its application.

    4. The long title in the Act of 2000 states that it is an Act to promote equality and prohibit inter alia types of discrimination – it is to remedy certain discrimination and other unlawful activities. Consequently, as it is remedial legislation the Court should adopt a purposive approach in interpreting the Act, if necessary. I am satisfied that it is not necessary to take that step in this case as the words of the section are clear and precise and do not need the assistance of taking a purposive approach.

  390. I am satisfied that on each of these issues it is clear that the analysis, as stated earlier, of the principal purpose of Portmarnock is applicable. On such analysis Portmarnock's principal purpose is golf. Consequently, Portmarnock is a discriminating club under the Act of 2000.

  391. Reference was made by counsel to s.235 of the Taxes Consolidation Act 1997 – which applies to sole purpose amateur games, of which Portmarnock benefits. The section provides that an appropriate body is any body whose sole purpose is amateur games/sport. This is consistent with the finding that the principal purpose of Portmarnock is golf.

  392. Conclusion

  393. A club may be established as an association of persons with a common interest. They may share an activity, such as sailing or golf. They may offer members amenities, such as a restaurant and a bar. Section 8 of the Act of 2000 applies to such associations if they have a drinks licence, in which case discrimination is forbidden. However, exceptions are identified in s.9, where discrimination is permitted. While the general rule of s.8 is broadly stated the exceptions are limited by the terms of section 9.

  394. I adopt a literal interpretation to the words of s.8 and s.9(1)(a) of the Act of 2000. Section 8 prohibits discrimination, including discrimination on the basis of gender. However, exceptions are provided for in s.9(1)(a), which makes provision for single gender clubs. This is a specific exception to the general rule stated in section 8. To obtain the status of an exception a club has to comply with the terms of section 9(1)(a).

  395. For the reasons given I am of the view that Portmarnock's principal purpose is golf, consequently, it does not come within the terms of s.9(1)(a) of the Act of 2000. Therefore, it is not a permitted exception to the rule against discrimination. Thus Portmarnock is a discriminating club.

  396. The approach taken by the learned High Court judge in construing s.9(1)(a) of the Act of 2000 was based on a presupposition or presumption that all clubs are for a purpose and on that basis he proceeded to consider the issue of the category of persons catered for. Such an approach is to ignore the clear and precise words of section 9(1)(a). Portmarnock's submission is to presume that clubs are for a purpose. This is an error. Section 9(1)(a) contains no such presumption or presupposition. Rather it requires that the principal purpose be identified. On its identification, if the principal is "to cater only for the needs of" men then a club may be an exception under s.9(1)(a) and a non discriminating club.

  397. However, for the reasons given, I have found that the principal purpose of Portmarnock is golf. Further, that Portmarnock caters for men and women. Portmarnock does not cater "only" for the "needs" of men. By the facilities it offers to men and women the facts show that it is a sports club for golf. The rules themselves indicate that it is primarily a golf club.

  398. Portmarnock Golf Club is exactly what its name says – a golf club in Portmarnock. It caters for men and women in different ways. Portmarnock is not a club which comes within the terms of section 9(1)(a). Consequently, I would allow the appeal. I would hold that the District Court was correct in law in finding that Portmarnock is a discriminating club.

  399. Constitutional issue

  400. The second issue, that of the constitutionality of the Act of 2000 was not before the Court and does not arise.

  401. Double construction rule

  402. The issue of the constitutionality of the Act of 2000, was not before the Court at this time. There is, of course, the presumption that the Act of 2000 is constitutional. If there were two or more interpretations open on the words of s.9(1)(a), one constitutional and the other unconstitutional, then the interpretation that it is in accordance with the Constitution would prevail. However, this does not arise in this case as the words of s.9(1)(a) are clear and precise and there is no ambiguity. There are not two or more possible interpretations of the words, nor is there another construction reasonably open, in light of the clear and precise words and their ordinary meaning.

  403. I am satisfied that the correct interpretation of s.9(1)(a) means that Portmarnock is not covered by that exception and is a discriminating club. I do not consider that there is any ambiguity. Consequently, it would not be correct to seek another interpretation or apply any further principles of construction of statutes.

  404. The Constitution provides for freedom of association. The citizens have a right to form associations. This is, of course, not an absolute right. Laws may be passed to regulate and control in the public interest. The Act of 2000 is an Act to promote equality and prohibit certain types of discrimination. Section 8 and section 9 address the matter of discriminating clubs. At this time the correct interpretation of this statute, the intent of the Oireachtas, is the only issue. No issue of the constitutional validity of the Act of 2000 is before the Court.

  405. While the learned High Court judge obviously had the best of intentions, he erred, in view of his interpretation of s.9(1)(a), in proceeding to consider and set out his "comments" on the constitutionality of sections of the Act of 2000.

  406. Justice Fennelly

  407. Portmarnock Golf Club is a national institution; it is the best known golf club in the country and is renowned internationally. Its membership is restricted to men. The central question on these appeals is whether the principal purpose of the Club is the playing of golf or whether, as the club contends, its principal purpose is to cater only for the needs of men. The answer to this question determines whether Portmarnock is entitled to remain registered as a club.

  408. The appeals are taken by the Equality Authority from the High Court judgment and orders of O’Higgins J in two separate proceedings. Firstly, the Equality Authority had applied successfully to the District Court for determinations pursuant to the Equal Status Act, 2000 that Portmarnock is a discriminating club which would have the effect of depriving it of its registration as a club enjoying the right to supply intoxicating liquor to its members. Sale of intoxicating liquor in a club is, of course, not permitted. The learned District Judge held in favour of the Equality Authority but stated a case to the High Court.

  409. In parallel, Portmarnock issued proceedings in the High Court seeking declarations that it is not a discriminating club and, alternatively, that the relevant legislation is unconstitutional. Portmarnock also argued that the double construction rule would require the relevant legislation be interpreted so as not to infringe its members’ constitutional right to freedom of association. Alternatively, Portmarnock argued that the legislation was unconstitutional.

  410. O’Higgins J heard the case stated and the plenary proceedings together. No evidence was called in the High Court. The parties agreed to accept the facts as found in the District Court. O’Higgins J decided in favour of Portmarnock. He held that it is not a discriminating club. He did not resort to the double construction rule. Nonetheless, he went on to consider the constitutional challenge. He found that, if the constitutionality of the Act required to be considered, he would dismiss Portmarnock’s claim of unconstitutionality.

  411. The Equality Authority has appealed against the judgment of O’Higgins J on the interpretation of the section. Portmarnock has brought an appeal against the dismissal of its constitutional claim. This does not now arise, in view of the decision of the majority of the Court.

  412. The Court has decided to deal, firstly, with the appeal of the Equality Authority against the decision of O’Higgins J with regard to the correct interpretation of the relevant sections. That is the sole subject of this judgment. I merely wish to emphasise from the outset that I deal only with the questions of statutory interpretation which arise.

  413. The facts

  414. The relevant facts are taken from the judgment of the District Court.

  415. Portmarnock was founded in 1894. It had 626 members and 625 associate members at the date of the District Court hearing. The Club is affiliated to the Golfing Union of Ireland.

  416. Rule 3 of the Rules provides:

  417. The Club shall consist of Members and Associate Members, as defined below, who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status, for the time being, prescribed by the Royal and Ancient Golf Club of St Andrews.

    Rule 14.4 refers to the fact that the “Club [is] primarily devoted to golf.”

  418. Women are permitted to play golf at Portmarnock either with or without a member on identical terms to those applicable to male non-members. Women may play the course at Portmarnock on seven days of the week upon payment of green fees at the times permitted for such play. At least three competitions are played at Portmarnock Golf Club in each year in which women take part as guests.

  419. The club provides changing facilities and locker rooms specifically for women as part of the clubhouse complex. Women have access to the bar and restaurant and all other clubhouse facilities (except the male locker rooms) at Portmarnock on an equal basis with men. Presumably, however, women, not being members, and like male non-members, may not purchase intoxicating liquor, though this was not adverted to at the hearing. A ladies’ scorecard is available to women playing the course and the club itself facilitates the playing of golf by women under the rules of the Irish Ladies Golfing Union, the body which regulates golf played by women in Ireland.

  420. The club enjoys tax exemption under Section 235 of the Taxes Consolidation Act 1997. That section refers to an approved body of persons who may be granted tax exemptions. An approved body is defined to mean “any body of persons established for and existing for the sole purpose of promoting athletic or amateur games or sport ....”

  421. Portmarnock has, for many years, been the holder of a Certificate of Registration under the Registration of Clubs Acts, 1904-1999.

  422. No other facts have been proved. It has been stated in the written submissions of Portmarnock that it is one of only two among 400 golf clubs in Ireland which restricts its membership to men, though there is no evidence of this fact.

  423. The legislation

  424. The Equal Status Act, 2000, according to its long title, is “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....” By that Act, equality policy moved from the area of employment law and entered a number of other areas of economic activity, in particular, the disposal of goods and the provision of services to the public (see section 5). These provisions apply to clubs only to the extent that they supply goods or services to the public. There is even a specific provision to make it clear that section 5 does not apply where a club supplies services to its own members (see section 5(2)(b)).

  425. This case is concerned only with the quite distinct and self-contained provisions of sections 8 and 9, although it is necessary, in considering them, to have regard to definitions regarding discrimination which are used generally in the Act.

  426. These are contained in section 3. Section 3(2) lists what, “as between two persons” are held to be “discriminatory grounds.” Depending on how one counts them, there are nine or more, including gender, marital status, family status, sexual orientation, religious belief, age, race or colour or membership of the Traveller Community. Section 3(1) provides that “discrimination shall be taken to occur,” where a person is treated less favourably by reference to membership of any of the categories set out in section 3(2). This simplified account of section 3 sufficiently serves the purpose of this judgment. It is a given that Portmarnock’s membership rule discriminates on the ground of gender. The Club admits only “gentlemen.”

  427. The provisions designed to deprive certain clubs of their continued registration under the Registration of Clubs Acts are contained in sections 8 and 9. Section 8 defines a “club” as “a club which has applied for or holds a certificate of registration.” Section 8(2) (a) provides that “a club shall be considered to be a discriminating club if .... it has any rule, policy or practice which discriminates against a member or an applicant for membership ....” Portmarnock’s rule restricting membership to gentlemen is caught by that provision, which is reinforced by section 8(2)(b)(i) by virtue of which it is evidence that a club is a discriminating club if it commits the act of “refusing to admit a person to membership ....”

  428. Portmarnock, therefore, is a “discriminating club” as defined by section 8. However, section 9 provides that a club “shall not be considered to be a discriminating club,” if it satisfies one or other of the provisions of section 9(1)(a) and “refuses membership to other persons.”

  429. The entire appeal turns on whether Portmarnock satisfies the first of those statutory requirements.

  430. The object of these provisions and the consequences of being a discriminating club appear from section 8. The section lays down the procedure. Any person, including the Equality Authority, may apply, pursuant to sub-section 3, to the District Court for “a determination as to whether a club is a discriminating club.” There are provisions as to service set out in sub-section 5 so as to enable interested persons “a reasonable opportunity to make representations.” The following provisions govern the decision of the District Court:

  431. (6)

    After considering the representations, the Court shall –

    (a)

    make an order in writing setting out its determination as to whether or not the club is a discriminating club, and

    (b)

    cause a copy of the order to be transmitted to the Minister.

    (7)

    (a)

    Where – 

    (i)

    the Court makes an order under subsection (6)(a) setting out its determination that a club is a discriminating club, and

    (ii)

    the order is the first such order in relation to the club,

    the Court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days.

    (b)

    Where the Court makes any subsequent such order, section 10 shall apply and have effect in relation to it.

  432. Section 8(7) provides that where a court makes a determination that a club is a discriminating club and that order is the first such order in relation to the club then the court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding thirty days.

  433. Section 10 provides, inter alia, that “while an order under section 8 determining that a club is a discriminating club remains in effect, no certificate of registration under those Acts shall be granted to or renewed for the benefit of the club....”

  434. The net effect of these provisions is to enable a registered club, found to be a discriminating club to suffer, firstly, the temporary and later potentially the permanent loss of its certificate of registration.

  435. Section 9 of the Equal Status Act provides, in relevant part:

  436. (1)

    For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that – 

    (a)

    if its principal purpose is to cater only for the needs of – 

    (i)

    persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

    (ii)

    persons who are members of the Traveller community, or

    (iii)

    persons who have no religious belief,

    it refuses membership to other persons ....

  437. Portmarnock has maintained at all times that, although it comes within the definition of a discriminating club pursuant to section 8, it is “not to be considered to be” one, since “its principal purpose is to cater only for the needs of” men.

  438. That is the case in a nutshell. The principal purpose of Portmarnock Golf Club is not, the Club says, the playing of golf, but rather to “cater only for the needs of” men.

  439. The District Court Proceedings

  440. The Equality Authority applied to the District Court on 10th June 2003 for a determination that Portmarnock Golf Club is a discriminating club and that its certificate of registration be suspended for a period not exceeding thirty days. The defendants were Portmarnock and its principal officers.

  441. District Judge Mary Collins heard the application on 28th November 2003 and 19th January 2004. Evidence was given, inter alia, by the Secretary Manager and the Captain of the Club. The learned judge made findings of fact, as summarised above. Certain correspondence was agreed.

  442. Judge Collins delivered judgment on the 20th of February 2004. She made a determination that Portmarnock Golf Club is a discriminating club within the meaning of Section 8 of the Equal Status Act 2000. On the 18th of May 2004 she made an order under Section 8(7)(a) of the Equal Status Act 2000 suspending the Certificate of Registration of Portmarnock Golf Club for a period of seven days. Judge Collins concluded her judgment:

  443. The Equal Status Act is an Act to promote equality and prohibit discrimination. I propose attributing to Section 9 the ordinary meaning in the Oxford English Dictionary. The relevant words of Section 9(1) are “principal purpose” and “to cater only for the needs of” that which is in “principal” [sic] is first in importance. The “purpose” is the object towards which one strives. To “cater for” is to provide what is needed or required and “need” is that which is wanted or required. I think the words are clear.

    The principal purpose of the club is to play golf. The ordinary words of the statute do not ascribe to men’s golf a special need. A literal approach is appropriate in this case and therefore other canons of construction are not needed. I propose to rely on the presumption of constitutionality.

    Accordingly the Defendants is a discriminating club for the purposes of the Equal Status Act 2000 and does not come within the exemptions provided therein.

  444. The reference by the learned judge to ascribing “to men’s golf a special need” seems to arise from an argument attributed in the course of her judgment to the Captain of the Club that the principal purpose of Portmarnock was the “playing of men’s golf.” It is not clear whether that argument was advanced by counsel for Portmarnock in the District Court. It is clear, however, that it was not the stance adopted by Portmarnock either in the High Court or in this Court.

  445. The learned District Judge has stated a case to the High Court pursuant to section 2 of the Summary Jurisdiction Act, 1857 as amended by section 51 of the Courts (Supplemental Provisions) Act, 1961, seeking its opinion as to whether she was correct in law to make the above-mentioned determination and order.

  446. The plenary proceedings

  447. On 11th June 2003, the above-named plaintiffs instituted plenary proceedings on behalf of Portmarnock against the Equality Authority, Ireland and the Attorney General in which they claimed:

  448. (1)

    A Declaration that Portmarnock Golf Club is not a discriminating club within the meaning of Section 8 of The Equal Status Act 2000.

    (2)

    A Declaration that by reason of the provisions of Section 9 (1) (a) of The Equal Status Act 2000 that the club shall not be considered to be a discriminating club for the purposes of Section 8 of the said Act.

    (3)

    Further and in the alternative if the provisions of Section 9 (1) (a) of the 2000 Act do not, on their proper construction, apply to the club and/or the club is considered to be a discriminating club for the purposes of Section 8 of the Act, the provisions of Sections 8, 9 and 10 in so much as they purport to apply to single gender sporting clubs are invalid having regard to the provisions of the Constitution of Ireland.

    (4)

    Alternatively a Declaration that Sections 8, 9 and 10 of The Equal Status Act 2000 in so much as they apply or purport to apply the prohibition contained in Section 8 to single gender sporting clubs, are incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms and in particular Article 11 thereof.

  449. The first two declarations relate to the subject-matter of the District Court decision. That court is designated by statute as the proper forum for the determination of whether any particular registered club is a discriminating club. The Act assigned that jurisdiction to the District Court, which was the only court having jurisdiction to make the determination in question and any consequential order. The question of whether the learned District Judge was correct in law was appropriately stated by her to the High Court. No evidence was heard in the High Court, where the hearing proceeded on the basis of the facts as found in the District Court. In reality, the entire matter proceeded within the framework of the case stated.

  450. The third and fourth questions could arise only in the event that the Equality Authority succeeds in its appeal to this Court. In view of the decision of the majority of the Court, they do not now arise.

  451. The High Court judgment

  452. The High Court judgment and, it seems to me, the entire decision in the case, turns on the question of “principal purpose.”

  453. O’Higgins J noted the submission of the Equality Authority that the principal purpose of the Club was to play golf and not to cater only for the needs of persons of one gender. He said that the Club had argued that its principal purpose is “to cater only for the needs of a particular gender, that is male golfers.” Apart altogether from the obvious difficulty of defining “male golfers,” rather than men or women, as a gender, I believe the learned judge was mistaken in attributing this argument to Portmarnock at all. Mr Donal O’Donnell, Senior Counsel, on behalf of the Club has been quite consistent, subject to one modification to which I will refer, in the way he has put the matter. He submitted both to the High Court and to this Court that the learned District Judge was wrong to determine that the principal purpose of the Club was the playing of golf. He argued that the principal purpose of the Club was to cater only for the needs of men. I have referred to a modification. At one point in oral argument, Mr O’Donnell submitted that “the purpose of the Club is the playing of golf by its members.”

  454. Subject to the interpolation of the word “golfers,” O’Higgins J accepted Portmarnock’s interpretation of section 9, saying: that its “principal purpose is to cater only for the needs of male golfers.” He held that this came within the exceptions to section 8 provided by section 9.

  455. In reaching this conclusion, the learned judge was influenced by an argument, which has been a constant theme of Portmarnock’s case, namely that he was given no plausible example of any existing club which might, in theory, fall within the exemption provided by section 9. He rejected any notion of a purposive interpretation or any resort to the remedial character of the legislation or the objective of achieving equality. He did not accept that the interpretation of section 9 advanced by Portmarnock would be so broad as to defeat the purpose of the Act. In his opinion the interpretation of section 9 of the Act advanced by Portmarnock “recognises the fact that there is nothing inherently undesirable with [sic] persons seeking – in a social context – the society of persons of the same gender or the same nationality or the same religion.” Thus, he considered:

  456. In a tolerant and free and increasingly diverse society, it is not surprising that the type of exemptions envisaged in s. 9 were enacted – as a result of which – in terms of registered clubs – it is permissible to have – exclusively – a bridge club for Bulgarians, a chess club for Catholics, a wine club for women and a golf club for gentlemen.

  457. In this way, the learned judge equated the purpose of a club with its membership rather than with its activity, which becomes a merely descriptive term.

  458. The appeal

  459. The issues on the appeal, insofar as the interpretation of the Act is concerned, are effectively the same as those which were considered so extensively by O’Higgins J.

  460. O’Higgins J found it unnecessary to consider the double-construction rule, since he thought the interpretation of the section to be clear. I propose to consider the interpretation of the section without resort to the principle of double construction.

  461. While the Equal Status Act is aimed generally at the elimination of discrimination, inter alia, on grounds of gender, the provisions of sections 8 and 9 are completely self-contained. They address uniquely the private and internal rules of clubs having a certificate of registration under the Registration of Clubs Acts. They do not restrict or limit the right of groups of persons to form associations limited to persons having particular characteristics. They do, however, where they apply, provide for the significant sanction of the termination of the right to supply intoxicating liquor to their members.

  462. Section 8 of the Act commences by limiting its scope only to those clubs which hold a certificate of Registration of Clubs Acts, 1904 to 1999. Thus, the legislation applies only to a members’ club having at least one hundred and fifty members and occupying its own premises of which it is “the tenant and proprietor and occupier.” In the same way as normal licensed premises, those premises must be shown to be suitable for the supply and consumption of intoxicating liquor. (see section 1 of the Registration of Clubs (Ireland) Act, 1904).

  463. It is not in dispute that Portmarnock is a “discriminating club” within the meaning of section 8, because it has a “rule, policy or practice which discriminates against a member or an applicant for membership.” In this case, rule 3 limits membership to “gentlemen properly elected.” Part of the argument for Portmarnock is that section 8 (as distinct from section 9) contemplates discriminatory admission rules in the case of clubs not limited to a single gender, for example a quota limiting the number of members of one gender (or other discriminating category). This is relevant to a point concerning the effect of section 9 in depriving section 8 of meaning and I will refer to it later.

  464. In any event, the clear effect of section 8 is to make it possible for a discriminating club to be deprived of its certificate of registration, initially for a limited period and potentially permanently so long as it remains a discriminating club. This is indisputably a significant sanction.

  465. However, the entire focus of the debate has, at all stages, centred not on section 8 but on section 9(1)(a), whose provisions are set out above. A registered club is not to be considered a discriminating club for the purposes of section 8 – citing only words relevant to this case –  by reason only that .... if its principal purpose is to cater only for the needs of .... persons of a particular gender .... it refuses membership to other persons ....”

  466. The provision centres around four terms: principal purpose; caters; only and needs.

  467. A registered club will clearly have a purpose or purposes. There may be a principal purpose with subsidiary purposes; there may be no principal purpose. Counsel for the Club consistently argued for a distinction between the purpose or purposes of a club and its activity. On this argument, golf is merely the activity carried on in Portmarnock, but is not its purpose. As I will explain, I am unpersuaded by the notion that the principal purpose of Portmarnock Golf Club is other than the playing of golf. It is unreal and implausible to suggest that the principal purpose of a Golf Club is not the playing of golf.

  468. There are a number of compelling indications, some of them statutory, of clubs being considered as having a purpose, a primary purpose or a principal purpose.

  469. Bearing in mind that sections 8 and 9 apply only to registered clubs, it is material that the Registration of Clubs Acts have always contemplated clubs as having a purpose or purposes. Section 2 of the Registration of Clubs Act, 1904 requires an application for a certificate of registration to state “the name and object of the club.” Section 4(k) as amended by section 42 of the Intoxicating Liquor Act, 1988 provides that “no person under the age of eighteen shall be admitted a member of a club, unless the club is one primarily devoted to some athletic purpose”.

  470. Section 9 contemplates a club which has as “its principal purpose to cater only for the needs of .... persons of a particular gender ....”

  471. Thus, the first and obvious question is: what is the “principal purpose” of Portmarnock Golf Club? That is a question of fact. The relevant finding of fact made by the learned District Judge was: “The principal purpose of the club is to play golf.” With great respect to the sophistication of the arguments advanced on behalf of the Club, which criticised the District Court for its “simple, if not simplistic interpretation,” it is difficult to find fault with this finding. It is a simple determination of an issue of fact, which was within the jurisdiction of the learned District Judge. It is in any event quite obviously correct.

  472. If the Oireachtas in 1988, by amending section 4(k) of the Act of 1904, envisaged a club being “primarily devoted to some athletic purpose,” why could a club, not be considered in an Act of 2000, to have an athletic purpose, specifically playing the game of golf, as its principal purpose? The answer, in any event, provided by Rule 14.4 of the Club Rules, which, in compliance with section 4(k) provides:

  473. The Club, being primarily devoted to golf, being an athletic purpose, may admit persons under the age of eighteen years ....

    By its own Rules, therefore, the Club states that golf is a purpose, in its case an athletic purpose, and that it is a purpose to which the Club is “primarily devoted.”

  474. This is so obvious a conclusion that one hesitates to labour the point. Portmarnock has quite properly and lawfully adopted a rule permitting it to admit members under the age of eighteen years. But a registered club may do that only if it is primarily devoted to an athletic purpose.

  475. The District Court also made a finding that Portmarnock is included in a list of sporting bodies maintained by the Revenue Commissioners for the purposes of section 235 of the Taxes Consolidation Act 1997. That section enables “approved bodies” to benefit from exemption from income tax in respect of so much of their income as is shown to the satisfaction of the Revenue Commissioners to be income which has been or will be applied to the “the sole purpose of promoting athletic or amateur games or sports.” In this way, golf becomes not only its “principal” but its “sole” purpose.

  476. These are two examples of statutory provisions whose benefits have been properly and lawfully invoked by the Club, one of which requires that it be primarily devoted to an athletic purpose and the other that it be a “body of persons established for and existing for the sole purpose of promoting athletic or amateur games or sports.”

  477. It is, moreover, a matter of simple common sense that the principal purpose of Portmarnock Golf Club is the playing of golf. When the farseeing founding members of Portmarnock came together in 1894 and led to the establishment of what is now the first and greatest of Irish golf clubs, what was their purpose if it was not the establishment of a golf club? Clearly, the answer is “none.” Any other answer would be preposterous.

  478. In short, the finding of the District Court that the principal purpose of Portmarnock is to play golf is unimpeachable.

  479. I turn then to address the respectively of the judgment of the learned High Court judge and the arguments of the Club.

  480. O’Higgins J reached the conclusion that Portmarnock came within the exemption provided by section 9(1)(a) because: its “principal purpose is to cater only for the needs of male golfers.” As I have already pointed out, this was not – I would add for good and logical reasons – the argument advanced by Portmarnock either in the High Court or in this Court. With great respect to his careful and considered judgment, it is clear that O’Higgins J fell into clear error when he treated “male golfers” as a gender. Section 9(1)(a) contemplates a club whose “principal purpose is to cater only for the needs of” (inter alia) “persons of a particular gender.” “Male golfers” are not a gender, though they belong to the male gender.

  481. It is material to recall, however, that the learned District Judge noted the differently expressed contention of the Captain of Portmarnock Golf Club that “the principal purpose of Portmarnock Golf Club was the playing of men’s golf.” Presumably, he implied that there are distinct games of men’s golf and women’s golf. That may be so. I would not wish to debate a matter on which there has been no evidence and on which I have little knowledge and no skill. There was, however, evidence before the District Court to the effect that Portmarnock in fact provides fully for the playing of golf by women. Women play golf at Portmarnock either with or without a (male) member on identical terms to those applicable to male non-members. The Club provides them with changing and locker room facilities and ladies’ score cards. Generally, according to the evidence, the Club facilities are available to women as they are to men. The one thing that cannot be done, of course, is to sell intoxicating liquor to non-members.

  482. It is thus appropriate to consider the matter on the hypothesis that the Club’s principal purpose, as argued by its Captain, is the playing of “men’s golf.” That approach has the merit of relating the purpose (playing men’s golf) to “needs” related to that purpose. The “needs” referred to in the section must necessarily serve the principal purpose contemplated by the section. A club has members who have formed it for a purpose and who have needs flowing from that purpose. This is implicit in the trial judge’s reference to the “needs of male golfers.” Their “needs” relate to the playing of golf and the Club caters for them.

  483. I appreciate that counsel for the Club has subjected the submissions of the Equality Authority on this point to extensive criticism. That submission was to the effect that, in order for a club to enjoy the exemption provided by section 9, there would have to be a link or nexus between the principal purpose of the Club and the category (here gender) to which membership was limited. It has been suggested that the Attorney General has adopted a different interpretation. In fact, the Attorney General has made no submissions to this Court on the issue of interpretation, though O’Higgins J records him as having taken a different stand on that issue in the High Court. That position appears to have been that “a gentlemen’s club or ladies club – and not only those confined to those whose objects had a logical connection with male or female could be exempt from the provisions of section 8 of the Act.” For reasons which I will explain, I prefer the approach there recorded.

  484. The entire expression which has to be interpreted is: “its principal purpose is to cater only for the needs of” persons in which ever particular category is relevant. In that context, the word “cater” presents the least difficulty. It means to provide for or look after. In context, the word “needs” must of necessity relate to the principal purpose of the club. As to the meaning of the words, “needs,” I find the analysis of Geoghegan J persuasive, while I reach a different conclusion on the issue of “principal purpose.” I agree that “needs” may include subjective, including social or cultural, requirements.

  485. The difficulty is the word “only.” Portmarnock’s principal purpose is the playing of golf; it caters for the needs of its members, who are, as a matter of fact, male golfers. It also caters, however, extensively, and (except in the matter of membership), on a generally equal basis, for the needs of female golfers. Therefore, Portmarnock does not cater “only” for the golfing needs of its members.

  486. It follows that Portmarnock does not come within section 9(1)(a) of the Act. It remains a “discriminating club.”

  487. The Club and the High Court Judge drew attention especially to the undoubted fact that single-gender clubs are recognised by section 9. It is not unfair to say that counsel for the Club very effectively turned the tables on the Equality Authority by insistently demanding that it produce examples of clubs which would satisfy the statutory test if Portmarnock did not.

  488. In my view, the section provides a clear and simple answer to this question. For reasons I have already given, it is clear – in my view it is clear beyond argument – that the principal purpose of Portmarnock Club is the playing of golf.

  489. Section 9 permits a registered club to restrict membership, as Portmarnock does, to male persons provided it meets the requirements of the section. Those requirements are comprised in the three words “cater,” “needs” and “only.” If a club has, as its principal purpose, to cater for the needs only of men, then it may restrict membership to men.

  490. Thus, if it had been the fact that the principal purpose of Portmarnock was to cater for the needs only of male golfers, it would not be a discriminating club within the statutory definition. But, on the facts as found by the District Court, which are binding for the purposes of the case stated, it is patently not the case that Portmarnock caters only for male golfers. Thus, it fails to meet the statutory test laid down in section 9(1)(a). It is true that, while the Club could limit membership to males, it could not restrict the facility of green fees to male non-members, without infringing section 5 of the Act.

  491. The Equality Authority submitted that the interpretation by of section 9 adopted by O’Higgins J. is such as to empty section 8 entirely of its content and effect. The breadth of the exemption available on the interpretation adopted by the High Court and by the majority of this Court was such that it would apply to virtually any club whose membership is limited to one of the categories of persons set out in section 9(1). This argument proceeds from the position adopted on behalf of the Club, namely that its principal purpose was to cater for the needs of its members. The playing of golf was not its purpose, but merely its activity. Hence, the words “cater” and “needs” are used merely as links between the purpose and the membership. The principal purpose and the members coincide. On this interpretation, the argument goes, there is little if any scope for the application of section 8. Mr O’Donnell, as mentioned above, in an attempted response to this point, submitted that section 8 has a different scope from section 9. He argued that it contemplates discriminatory admission rules in the case of clubs whose membership is not limited to a single gender or category He gave the example of a quota limiting the number of members of one gender (or other discriminating category). While that submission is technically correct, it lacks reality. At no other point in the proceedings was it suggested that any such clubs have existed. As a matter of common sense, they must be extremely rare. This point does not, therefore, diminish the force of the argument that the interpretation of section 9 propounded by the Club would empty section 8 of almost all meaning.

  492. I would like finally to refer briefly to two criticisms of the Equality Authority which figured to some extent in the submissions of counsel for the Club both in written and oral submissions.

  493. Counsel drew the attention of the Court to certain correspondence between the Minister and the Equality Authority. On 23rd June 2000, the Minister wrote to the Equality Authority requesting that it to draw up a Code of Practice pursuant to section 56 of the Employment Equality Act as applied to the Act of 2000 by section 39 and the Schedule to the latter statute. Such a code could relate to issues of discrimination pursuant to the latter Act. The Club complains that no such Code has been produced and states that this constitutes a breach of statutory duty by the Equality Authority. I confess to being at a complete loss to understand how that fact has any bearing on the present appeal. The point does not appear to have been raised in the District Court. It is not mentioned in the Case Stated. It is not mentioned in the judgment of the High Court. Even if it had been, it is utterly irrelevant to the question before the Court, namely whether Portmarnock is a discriminating club. The operation of section 8 is not dependant on the existence of a code of practice.

  494. Another issue raised by the Club and canvassed at the hearing of the appeal was the position of the Masonic Order under the legislation. I find it objectionable that the interests of a body which is not before the Court and not represented should be debated at all. In any event, whether that or any other club or body is treated correctly under the legislation is, to my mind, also utterly irrelevant to the legal issue before the Court.

  495. In my view, the meaning of the section is clear. It is certainly clear in its application to this case. The principal purpose of Portmarnock Golf Club is the playing of golf. To serve that purpose it caters for the needs of its members, who are, according to the rules of the Club, gentlemen. However, it is equally clear that its purpose is not to cater only for the needs of its gentlemen members. It also caters, so far as the playing of golf is concerned, equally for women, who have equal access to the club, except in the matter of membership. Thus, it does not satisfy the requirements

  496. I would, therefore, allow the appeal and answer the case stated by saying that the District Court was correct to make the declaration which it did.

  497. Like Denham J, I do not believe that there is any ambiguity in the section. For the reasons she has given in her judgment I am satisfied that the principle of double construction does not apply. It is also clear that the learned High Court judge was mistaken in entering on the issue of the constitutionality of the legislation, by reason of the authorities which he cited in his judgment, notably McDaid v Sheehy [1991] 1 I.R. 1.


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