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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Equality Authority v. Portmarnock Golf Club & Ors [2005] IEHC 235 (10 June 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H235.html Cite as: [2005] IEHC 235 |
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Neutral citation no. 2005 IEHC 235
[2004 No: 1456SS]
BETWEEN/
PLAINTIFF
DEFENDANTS
[2003 No: 7015P]
PLAINTIFF
DEFENDANTS
Judgment of O'Higgins J. dated 10th day of June 2005.
These two cases arise out of the same set of facts and may be conveniently taken together.
Facts:
The first case comes before the court by way of an 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 1661.
Portmarnock Golf Club is one of the oldest and most well known golf clubs in Ireland. It was founded in 1894, and currently has a membership of 662 members and 625 associate members. The Club is affiliated to the Golfing Union of Ireland, and has, for many years, been the holder of a Certificate of Registration under the Registration of Clubs Acts, 1904-1999. The dispute in the present proceedings relates primarily to Rule 3 of the Portmarnock Golf Club's Rules. The Rule 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"
As such, 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. The Club also provides changing facilities and locker rooms for women, and women are entitled to access to the bar and restaurant and all other Clubhouse facilities available at the Golf Club. A ladies' scorecard is available to women golfers and the Club 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.
On 17th April, 2003, the Chief Executive of the Equality Authority initiated proceedings against the Club. They sought a declaration that the Club, by refusing membership to women, was a discriminatory Club, within the meaning of s.8 of the Equal Status Act, 2000. On the 20th February, 2004, the District Judge made such a declaration. On the 18th May, 2004 she made an order under s. 8(7)(a) of the Act of 2000 suspending the certificate of registration of Portmarnock Golf Club for a period of seven days.
In her judgment, the learned Judge Mary Collins concluded as follows:-
" I have considered all submissions in depth and how I should approach the interpretation of Section 9(1) (a). The core issue is the interpretation of this section. I am satisfied that this section is to be interpreted in accordance with the rule of the interpretation as set down by the Supreme Court and the High Court. In Howard -v- The Commissioner of Public Works and judgment of Blayney J. makes it clear that if words are precise and unambiguous they must be given their ordinary and natural sense. If the meaning is not plain it is not the role of the courts to speculate. Finlay CJ at page 140 stated that it is not permissible to interpret on the basis of speculation. Denham J. stated if plain intention is expressed the court should not speculate but construe the statute as enacted. In DB -v- The Minister for Health and Children Denham J. reiterated that effect must be given to clear and unambiguous words and the natural and ordinary meaning would apply. McGuinness J. pointed out that the starting point should be the literal approach.
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" 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 Equal Status Act 2000 and does not come within the exemptions provided therein".
In the case stated, the opinion of the High Court was sought as to whether the District Judge was correct in law in making the determination and the order.
In the second set of proceedings commenced by plenary summons dated 11th June, 2003 the plaintiffs who are suing in their capacity as trustees of Portmarnock golf Club seek:-
1. A declaration that Portmarnock Golf Club (the Club) is not a discriminating Club with the meaning of that term in s. 8 of the Equal Status Act, 2000.
2. Further, in the alternative, a declaration that by reason of the provisions of s. 9 (1) (a) of the Equal Status Act, 2000 the Club shall not be considered to be a discriminating Club for the purposes of s. 8 of the Equal Status Act, 2000.
3. A declaration that in the circumstances is not open to the first named defendant to make any application to the District Court pursuant to s. 8 (3) of the Equal Status Act, 2000 requesting that the
District Court make an determination as to whether the Club is a discriminating Club within the meaning of that term in s. 8 of the said act.
4. An order restraining the first named defendant, its servants or agents, from making any application in the District Court pursuant to s. 8 (3) of the Equal Status Act, 2000, requesting that the District Court make a determination as to whether the Club is a discriminating club within the meaning of that term in s. 8 of the said Act.
5. Further, or in the alternative, if the provisions of s. 9 (1) (a) of the Equal Status Act, 2000 do not, under proper construction, apply to the Club and/or if the Club is, or considered to be, a discriminating Club for the purpose of s. 8 of the Equal Status Act, 2000, the provisions of ss. 8,9 and 10 of the Equal Status Act, 2000 are invalid having regard to the provisions of Article 40.1, 40.3, 40.6.1 and 43 of the Constitution of Ireland.
The plaintiff claims damages and relief.
The case falls to be decided on either of two grounds. The first ground is based on the interpretation of ss. 8 and 9 of the Equal Status Act, 2000. The second ground is concerned with the constitutionality of the Act. The plaintiffs argue that if the interpretation contended for by the Golf Club is found to be incorrect (having regard to the normal rules of interpretation, including if necessary the rule of double construction, whereby in cases of doubt a certain construction maybe put on words, or a section of a statute, to save the constitutionality of statute) then the Act itself is unconstitutional. I propose to deal first with the interpretation of the relevant sections of the legislation and then consider the arguments based on the Constitution. It is convenient firstly to consider the case brought by the golf club through its trustees since the issues in those proceedings encompass the question of interpretation raised in the case stated. I will refer to the golf club suing through its trustees as the plaintiffs and the Equality Authority as the first named defendant and Ireland the Attorney General as the second and third named defendants.
Interpretation:
Sections 8 and 9 of the Equal Status Act, 2000 fell to be considered by the learned District Judge.
The relevant portion of s. 8 of the Equal Status Act, 2000 reads as follows:-
8. - (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) a person involved in its management discriminates against a member or an applicant for membership in relation to the affairs of the club,
(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;
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.
(iii) terminating the membership of a person or subjecting a member to any other sanction; or
(iv) 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.
The provisions of s. 8 of the Equal Status Act, 2000 enable any person (including the Equality Authority) to apply to the District Court to request that the court make a determination as to whether a club is "a discriminating club". Following such a determination, an order of that court that a club is a discriminating club within the meaning of the Equal Status Act, 2000 will be made. In the case of a first determination by the District Court "the court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days". In the case of a subsequent determination no certificate of registration shall be granted or renewed by virtue of the provisions of s. 10 (a) of the Equal Status Act, 2000. In effect, the club loses its license. In relation to the sanctions that may be imposed by the Act of 2000, the Equality Authority set out in a statement confirming the issuing of proceedings, its understanding of the legal position as follows:-
"There are separate and distinct provisions of the Act in relation to clubs which hold certificate of registration under the Registration of Clubs Act, (sic). 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."
The relevant part of s. 9 (1) of the Equal Status Act, 2000 reads as follows:-
"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, . . ."
In effect, the section exempts clubs from the provisions of s. 8 of the Equal Status Act, 2000 in certain circumstances. The major issues in these proceedings revolve around the interpretation of s. 9. In particular 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. They contend that on a proper construction of s.9 (1)(a) of the Equal Status Act, 2000 the Club is not and should not be considered to be a discriminating Club for the purposes of the 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 that it did not fall within any of the exemptions provided for in s. 9 of the Equal Status Act, 2000. The interpretation of s. 9 of the Act is at the core of the case made by the plaintiff.
However, the Club also argues that if the interpretation for which it contends is incorrect, and if the section cannot be read so as to bring Portmarnock Golf Club within the exemption provided for by s. 9 of the Act, then the Act itself is unconstitutional.
As stated previously, I propose to deal first with the interpretation of s. 9 and then to consider the submissions based on constitutional grounds.
It is important to note that the Equal Status Act, 2000, 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 in 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 Portmarnock Golf Club is one of the type of single gender clubs envisaged by s. 9 of the Act.
The plaintiffs argue that a correct interpretation of the Act 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 Equal Status Act, 2000. It is submitted that although discrimination, inter alia on the grounds of gender, was clearly targeted by s. 8 of the Act in respect of clubs in general, s. 9 provided exceptions if the principal purpose of the club is to cater only for the needs of persons of:
"a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin."
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.
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 and that the principal purpose of a golf club is clearly not to cater for the needs of persons of a single 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 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 s. 8 of the Act. It is difficult to see how a ladies club or a gentlemans club might be exempt from the provisions of s. 8 of the Act while a gentlemans golf club or ladies golf club cannot avail of such exemptions. However counsel for the Attorney General emphasised that the matter of interpretation was essentially one for the other parties to the action, and that his function was to deal with any Constitutional challenge to the legislation.
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 or 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.
Counsel for the Equality Authority adopted the finding of the District Judge that:
"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".
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 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.
Other arguments were advanced by the Equality Authority in support of the interpretation for which they argued or against the interpretation contended for by the plaintiffs. They are as follows:-
(1) It is argued that the fact that Portmarnock Golf Club caters for women golfers and well as for men is counter indicative to the interpretation contended for by the plaintiff that the principal purpose of the Club is to cater for the needs of male golfers.
(2) The rules of the Club and specifically rule 14 (4) gives as the primary purpose of the Club "the playing of golf" and is not qualified by any such phrase as "the playing of golf by men". The purpose of the Club is also similarly described without any qualification in documents presented to the Revenue Commissioners in support of tax-free status.
(3) It is submitted that the provisions of s. 9 if interpreted as contended for by the plaintiffs would have the effect of robbing the provisions of s. 8 of most of their efficacy. If the intention of the legislature was to take all single gender clubs outside the ambit of s. 8 this goal could have been easily achieved by simply excluding gender as one of the discriminating grounds in s. 8 and it would not have been necessary to enact s. 9 of the Act.
(4) As regards the correct method of interpretation, it is submitted that because the Act is remedial in nature a purposive interpretation is required and that the section be construed so as to give effect of the purpose of the Act. It is submitted that giving the Act such purposive construction runs counter to the adoption of the construction contended for by counsel for the Golf Club.
(5) Section 9 (1)(e) is a section applicable to sports clubs and is of assistance in construing s. 9(1) of the Act.
I will deal with arguments seriatim:-
(1) The fact that Portmarnock Golf Club is used by women golfers as well
as men does not address at all the question as to what is its principal purpose. In my view it does not preclude the principal purpose from being "to cater only for the needs of male golfers". In particular, the provision of facilities for female golfers, such as female changing rooms and the provision for women of access to the bar, restaurant and other facilities, do not address the question of the principal purpose of the Club. The Club does not cease to cater primarily for the needs of male golfers, merely because it provides facilities for women golfers also.
(2) Rule 14(4) of the Club reads as follows:-
"The Club, being primarily devoted to golf, being an athletic purpose, may admit persons under the age of 18 years as members but no excisable liquor shall be sold or supplied in the Club premises to any person under the age of 18 years be they a member or not."
It is submitted that it is relevant to the case that the above rule does not refer to golf for men but only to 'golf'.
I do not think that this rule is of any particular significance in the context of this case. It describes the Club as being "primarily devoted to golf . . ." but it clearly meant the playing of golf by men. In that regard it is worth noting that the Rule refers to the power of the Club to "admit persons" whereas they mean 'male persons' because of the existence of the rule allowing men only which is at the centre of this case. Likewise, it is of no significance that in the revenue document the Club does not describe its purpose as catering for men only.
(3) There is no doubt that the provisions of s. 9 of the Equal Status Act of 2000 exempts certain registered clubs from the ambit of s. 8 of the Act. Insofar as it provides such exemption it qualifies and restricts the application of section 8. It is submitted that had it been the intention of the legislature to exempt all single gender clubs from the ambit of s. 8 this goal could have been readily achieved by excluding gender as one of the discriminating grounds in s. 8 itself. In my view, this argument is misconceived. The exclusion of gender as a discriminating ground in s. 8 in the manner suggested in the submission of the Equality Authority would have the effect of removing the provisions aimed at discouragement of gender discrimination from all registered clubs. Had this been done the efficacy of the Act would be seriously diminished and the scope of its operations would indeed have been seriously curtailed. The s. 9 exemptions argued for by the plaintiffs on the other hand, only encompass a limited category of exceptions and have no effect on the vast majority of clubs. I cannot agree that the interpretation of the exemptions contended for by the plaintiffs defeats the purposes of the Act. Section 8 of the Act continues to be a powerful and effective anti discriminatory provision regardless of the interpretation of s. 9 of the Act.
(4) The long title to the Equal Status Act 2000 is as follows:-
"AN ACT TO PROMOTE EQUALITY AND PROHIBIT TYPES OF DISCRIMINATION, HARASSMENT AND RELATED BEHAVIOUR IN CONNECTION WITH THE PROVISION OF SERVICES, PROPERTY AND OTHER OPPORTUNITIES TO WHICH THE PUBLIC GENERALLY OR A SECTION OF THE PUBLIC HAS ACCESS, TO PROVIDE FOR INVESTIGATING AND REMEDYING CERTAIN DISCRIMINATION AND OTHER UNLAWFUL ACTIVITIES, TO PROVIDE FOR THE ADMINISTRATION BY THE EQUALITY AUTHORITY OF VARIOUS MATTERS PERTAINING TO THIS ACT, TO AMEND THE EMPLOYMENT EQUALITY ACT, 1998, IN RELATION THERETO AND IN CERTAIN OTHER RESPECTS AND TO PROVIDE FOR RELATED MATTERS."
In the long title the Act is expressed to be remedial legislation and as such it is submitted that the court must adopt a purposive approach in interpreting its provisions. This approach was adopted by the Supreme Court in The Bank of Ireland v. Purcell [1989] 1 I.R. 327 when construing the Family Home Protection Act, 1976 Walsh J. stated:
"This statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done."
This approach was specifically approved by McGuinness J. in her judgment in the Supreme Court in the case of Western Health Board v. K.M. [2002] 2 I.R. 793 where she stated as follows at p.510:-
"I would therefore accept . . . that the construction of the Act of 1991, as a whole, should be approached in a purposive manner and that the Act, as stated by Walsh J., should be construed as widely and liberally as fairly can be done."
However, freedom of association is an important constitutional principle, and may itself give rise to ways of construing legislation. Indeed Finlay J. observed in N.U.J. v. Sisk [1992] 2 I.R. 171 at p. 195:-
"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.
Accepting for the purpose of this case (although the matter is by no means certain in view of those observations of Finlay C.J.) that the court should adopt a purposive approach, the adoption of a "wide, liberal interpretation" is of little assistance in the interpretation of the provisions of s. 9 of the Equal Status Act, and in particular in deciding what type of single gender clubs were encompassed by its exemptions.
The purpose of the Act is stated to be amongst other things, "to promote equality" and yet the Act envisages the existence of certain single-gender clubs exempt from being "discriminating clubs" if they meet certain criteria. 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. Thus a single gender club catering only for the needs of women as well as a single gender club catering only for the needs of men are covered by the legislation. The Act therefore does not treat men any differently than women and therefore cannot be said to discriminate against women.
The long title of the Act states amongst the purposes of the legislation to "prohibit types of discrimination", and significantly not "all types of discrimination". Indeed it could hardly claim its purpose to be to prohibit all types of discrimination – in view of the fact that by the provisions of s. 9, it specifically exempts from the provisions of s. 8 some clubs which do discriminate on gender grounds if such clubs fulfil certain criteria. Having regard to the purpose of the legislation as being to prohibit types of discrimination does not help to decide what clubs fall within the s. 9 exemptions. `+
(5) Mr. Callanan S.C. for the Equality Authority submitted that the provisions of s. 9(1)(e) of the Act concerning sports clubs are of assistance in construing s. 9(1)(a).
Section 9(1)(e) of the Act reads as follows:-
"9.—(1) For the purposes of section 8, a club shall not be considered to be a discriminating club by reason only that . . .
(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."
This section applies to all sports clubs and permits, for example, sporting events to be organised on the basis of gender if those events fall within the parameters of s. 9(1)(e). It is submitted that to escape the category of discriminating clubs under s. 8 the plaintiffs would have to bring themselves with the ambit of s. 9(1)(e) - which it clearly cannot do. Counsel points out that a golf club discriminating beyond the extent permitted by s. 9(1)(e) would be a "discriminating club" for the purpose of s. 8, whereas a golf club which refuses membership on the grounds of gender would not be a discriminating club if the interpretation contended for by the plaintiff be correct. It is submitted that such a result was anomalous and inconsistent. I cannot agree. Section 9(1)(e) applies to all sporting clubs and limits the circumstances in which discrimination may exist in order to bring them outside the parameters of s. 8 of the Act. Section 9(1) on the other hand exempts (amongst other categories) some single gender clubs, but only those whose principal purpose is to cater for the needs of persons within that category.
Conclusion
The interpretation contended for by the Golf Club makes for an intelligible reading of s. 9 of the Equal Status Act, 2004. It is straight-forward and easy to reconcile with the purposes of the Act. In particular, it does not undermine the provisions of s. 8 of the Act, but qualifies them in an understandable way in relation to clubs coming within particular defined categories. On the other hand the court was given no example of an existing club falling within the exemption of s. 9 if the interpretation of the Equality Authority is correct. The court was not given any plausible example of any club – which might, in theory, fall within their definition. A purposive interpretation of the Act affords scant assistance in the present case. The interpretation contended for by the Authority cannot be said to be required either explicitly or implicitly by the Act itself. The legislation does not warrant or mandate the reading into the interpretation of s. 9 words such as "provided that such clubs exist only for purposes with a logical connection to the grounds of exception" or some such formula. The purpose of the furtherance of equality is not of assistance in interpreting the section because of the fact that exclusion on the gender grounds from the parameters of s. 8 of the Act is not confined to men only clubs but applies equally to women only clubs. In those circumstances, there is no justification for invoking the principle of equality in interpreting the section. Likewise a purposive interpretation, based on the remedial purpose of the Act, which is to be expressed inter alia, to prohibit "types of discrimination", is not of assistance. I reject also the assertion that the interpretation contended for defeats the purpose of the Act. Section 8 of the Act continues to be an effective and discriminatory provision, regardless of the interpretations of s. 9.
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 of the Act 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 plaintiffs argument for their interpretation of the section.
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 provided for by s. 9
The Constitutional Issue
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 those 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. These arguments are addressed to the Constitutional repercussions of a finding that the interpretation contended for by the plaintiff were not accepted by the Court.
The Constitutional arguments concern the proper construction of Article 40.6 of the Constitution. The arguments centred on the limits of any permissible restriction on the right of association and the extent to which legislation was permissible to restrict the exercise of that right; the question as to whether the doctrine of proportionality had any application in this case, and the issue as to whether constitutional provisions concerning equality had any application in this case.
Article 40.6.1 of the Constitution states that:-
"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".
Counsel for the Golf Club submits that Article 40.6 of the Constitution itself provides criteria under which restrictions may be put on the right of freedom of association and submits that such restriction can only be justified within the grounds contemplated by Article 40.6.3 itself, namely, grounds of "public order or morality". Any other restriction on or interference with the right is unjustifiable. Furthermore restrictions permissible on grounds of public order and morality must themselves be proportionate. It is submitted that the doctrine of proportionality is not applicable in this case because grounds of public order and morality are not being relied on.
As stated above Article 4o.6 provides that:-
"Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right."
Mr. O'Donnell S.C., for the golf club, submits that this provision permits the regulation of the activities of an association or Club but that such regulation does not extend to what is being called the membership decision itself.
Counsel further submits that the fact that apart from the qualification mentioned above the right of the citizen to form associations and unions provided for in Article 40.6 is not qualified by any other expression such as "save in accordance with law" or "in accordance with the requirements of the common good" or "insofar as possible". He submits that the doctrine of proportionality only operates where it is expressly provided for as in the case of 40.3 or 43 or by implication (in the case of the unenumerated rights, the Constitution makes it clear that an inference can be permitted in the measured way by such words). Counsel also submits that Article 40 guarantees equality in legislative and administrative action by the State, but does not encompass private relationships between parties. He submits that the Article cannot properly be invoked to justify an otherwise impermissible interference with freedom of association. It is submitted that the doctrine of proportionality does not allow for the subtraction from the clear statement of Constitutional rights contained in Article 40.6. Counsel brought to the attention of the Court the observations of Geoghegan J. in Maguire v. Ardagh [2002] 1 IR 385 at p. 720:-
"The protection of the good name of the citizen, therefore, can almost always arguably be rendered ineffective by some semi-plausible proposition balancing the rights of others or the common good. But there is a danger that constitutional rights can be excessively whittled away by arguments based on so called "balance". In this case the wording of that paragraph in the Constitution is of relevance".
The defendants take issue and submit that the Constitutional guarantees of freedom of association are not subject only to the limitations contended for by Mr. O'Donnell. They argue that there is no warrant for the distinction between the membership decision and regulation of the activities of a Club made for by him. On a correct reading of Article 40.6, they submit that all the freedoms in it are circumscribed not only by considerations of public order and morality, but that the right to form associations and unions is further specifically qualified in the Constitution itself, by the provision that "laws may be enacted for the regulation and control in the public interest of the exercise of the foregoing right".
It was further argued that the Constitutional right in question would be capable of being qualified by legislation even were it not for the qualification which appears in the Constitution itself. The defendants also took issue with Mr. O'Donnell's submissions in relation to the non-applicability of Article 40 of the Constitution and the proportionality test.
By Article 40.6.1 the State "guarantees liberty for the exercise of" certain rights subject to "public order and morality". Those rights are:-
(i) The right of a citizen to express freely their convictions and opinions (40.6.1.i) which is qualified explicitly in Article 40.6.1.i itself:-
(ii) The right to the citizens to assemble peaceably and without arms. (40.6.1.ii) which is also qualified in Article 40.6.1.ii itself.
(iii) The right of the citizens to form associations and unions.
The guarantee of liberty for the exercise, subject to public order and morality,
of the right of the citizens to form associations and unions is qualified in terms in Article 40.6.1o.iii as follows:-
"Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right,"
i.e. the right (subject to public order and morality) to form associations and unions. That qualification is specific to the right of association. In my view it expressly allows legislation to regulate and control the right of association itself. There is no basis in either the structure or the language of the Article for the contention that there are separate aspects of the exercise of the right to association, firstly the membership decision, untrammelled by considerations other than those of public order or morality, and secondly, the activities of the Club, to which additional considerations apply. Both the "subject to public order and morality" proviso, and the provision allowing for the regulation and control of the right are expressed to be in relation to "the exercise of the foregoing right" i.e. the right to form associations. A proper reading of the provision specifically allows for the enactment of laws regulating the exercise of the right of association itself and not merely the activities in which the association engages.
Even in the absence of the qualification contained in Article 40.6.1o.iii, there is no requirement for particular enabling words in order for a Constitutional right to be qualified by legislation. Even in the absence of words such as "save in accordance with law" it is permissible to enact legislation to qualify Constitutional rights. This is made clear in the case of Murray v. Ireland [1985]1 I.R. 532 which considered Article 41 of the Constitution dealing with the rights of the family at p. 538 of the judgment Costello J. stated:-
"The power of the State to delimit the exercise of Constitutionally protected rights is expressly is given in some Articles and not referred to at all in others, but this cannot mean that where absent the power does not exist. For example, no reference is made in Article 41 to any restrictive power but it is clear that the exercise by the Family of its imprescriptible and inalienable rights to integrity as a unit group, can be severely and validly restricted by the State when, for example, its laws permit a father to be barred from the family home allows imprisonment of both parents of young children".
Those observations were made in the context of family rights which are expressed in very strong terms as being "inalienable and imprescriptible".
The case of the Irish Times v. Ireland, & Ors., [1998] 1 IR 359 is also relevant. That case concerned the interpretation of Article 34 of the Constitution. Article 34 provides:-
" 1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."
Notwithstanding the limited nature of that qualification and notwithstanding that there was no legislation prescribed by law to deal with the issue in question, it was stated by Hamilton C.J. at p. 384 of the judgment that Article 34.1 of the Constitution:-
"must be construed in the light of other provisions of the Constitution and in particular Article 31.8 which provides that no person shall be tried on any criminal charge save in accordance with law".
In the case of Murphy v. Stewart [1973] I.R. 97 the Supreme Court specifically contemplated circumstances in which the provisions of Article 40.6 might be considered in the context of other rights and not only in the context of public order and morality. Speaking of the right to work Walsh J. (delivering the judgment of the Court) observed at p. 117 of the judgment:-
"The question of whether that right is being infringed or not must depend on the particular circumstances of any given case; if the right to work was reserved exclusively to members of a trade union which held a monopoly in this field and trade union was abusing the monopoly in such a way as to effectively prevent the exercise of a person's constitutional right to work the question of compelling the union to accept the person concerned with membership . . . would fall to be considered for the purpose of vindicating the right to work".
Both of those cases are strongly supportive of the contention that the right to association is not to be taken in the isolated manner suggested for by counsel for the Golf Club but that, it may be considered in the light of other provisions of the Constitution. Moreover, it is an established principle of Constitutional interpretation to try and give effect to the Constitution's provisions together rather than in isolation. In those circumstances it appears to me that the right of an association may properly be considered in the light of other provisions of the Constitution, including those concerned with equality.
Human existence for most people would be immeasurably impoverished if persons were deprived of association through activities of common interest or pursuit of some particular sporting or cultural activity. Friendships are often not based on shared interests, ideals or beliefs but by delight or enjoyment of the company of another which defies logical analysis and in respect of which an attempt at such analysis might even be considered inappropriate or at least futile. Counsel referred me to some pertinent observations of George Kateb, the political philosopher:-
"picking one's company is part of living as one likes; living as one likes (provided one does not injure the vital clam of others), is what being free means."
And again:-
"people find in association a value in itself. The point is obvious, but has not received enough judicial attention or protection. In pursuing their ends in needing to associate in order to do so, he will discover numerous sources of pleasure apart from the pleasure of success in their specific pursuits. They discover numerous opportunities for many diverse kinds of experience. Associations of every form provide accommodation for experience, much of it pleasurable . . . To be free, to live as one likes, includes associating on one own terms . . ." (The Value of Association in Freedom of Association (Gutman Amy ed) 1998 Princeton University Press chapter 2 pages 36, 37 and 38).
The Constitutional provisions concerning the freedom of association have been the subject of much judicial scrutiny. In the case of N.U.R. v. Sullivan [1947] I. R. 77 the Supreme Court considered the question of the ambit of the regulation and control of the exercise of freedom of association - that is whether it extends to the membership decision of an organisation or association and not just to the activities permitted to such association. The case concerned the constitutionality of Part 3 of the Trade Union Act, 1941 which purported to give to a "trade union tribunal" the power to decide that an applicant union had the exclusive power to organise workers of a particular class. It provided where a determination in favour of a particular union was in place no other union should accept as a new member any workman of the class in question. As described in the judgment itself at p. 101 the question before the court was: 3
"whether Part III of the Trade Union Act, 1941, is contrary to the constitutional guarantee of the right of association and union or whether it may properly be said to be a law regulating or controlling the exercise of the right. It appears to the Court that the decision in each case must be arrived at with regard to the particular facts of each case. There is no doubt that a law may be made dealing with the exercise of the right of forming associations and unions if that law can properly be called a law regulating the exercise of such right."
The Act was found repugnant to the Constitutional right of freedom of association. Murnagnan J. stated at p. 102:-
"Both logically and practically, to deprive a person of the choice of the persons with whom he will associate, is not a control of the exercise of the right of association, but a denial of the right altogether."
That case was considered in the case of Aughey and Others v. Attorney General [1989] ILRM 87 where Walsh J. giving the judgment of the court said at p. 92:-
"The former Supreme Court of Justice in its decision in the National Union of Railwaymen v. Sullivan [1947] I.R. 77 quite clearly rejected the view that in the context in which the Court was examining the question the word 'regulation' could be used to effect a prohibition. This court has been asked by the defendants in the present case to overrule this aspect of National Union of Railwaymen v. Sullivan and in effect to hold that the provision in the Constitution referring to 'regulation' may be construed as 'prohibition'. As appears from this judgment the Court is of opinion that s. 13 of Act is a 'regulation' only. It does not consider it is necessary to review the decision in National Union of Railwaymen v. Sullivan."
In the case of Tierney v. The amalgamated Society of woodworkers [1959] I.R. 254 a claim by the plaintiff to compel the defendant to accept him as a member failed, Budd J. observing at p. 263 of the judgment that:
"The right contended for here on the other hand, is altogether revolutionary. It has heretofore been, the essence of voluntary organisation that the members, and they alone, should decide who should be their fellow-members. Otherwise the element of "voluntariness" ceases to exist. A social Club, for example, could scarcely exist if the association of its members ceased to be voluntary".
Counsel submits that it is significant that the example of a social Club was chosen to emphasise the concept of 'voluntariness'. However this case does not address at all question of the ambit or the parameters of the permissible regulation by law of the right of association, the topic of which is at the core of the Constitutional argument in this case.
Much reliance is placed on passages in the judgment of the case of The Educational Co. of Ireland v. Fitzpatrick [1961] I.R. 345. In that case it was held that a picket which would otherwise have been protected under the provisions of the Trade Disputes Act, 1906 was outside the protection of the Act because the object of the picket was to secure the violation of the Constitutional right of association of the citizen. In the High Court Budd J. stated at p. 368:
"If an established right in law exists a citizen has the right to assert it and it is the duty of the Courts to aid and assist him in the assertion of his right. The Court will therefore assist and uphold a citizen's Constitutional rights. Obedience to the law is required of every citizen, and it follows that if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it. To say otherwise would be tantamount to saying that a citizen can set the Constitution at nought and that a right solemnly given by our fundamental law is valueless. It follows that the court will not act so as to permit any body of citizens to deprive another of his constitutional rights and will in any proceedings before them see that these rights are protected, whether the be assailed under the guise of statutory right otherwise."
Counsel for the golf club also relied on statements of Kingsmill Moore J., who said at p. 396 of the judgment:-
"It seems to me that any form of pressure which compels me to act in a way in which I would not have acted but for such pressure is a form of coercion and any such pressure designed to deprive me of a right given me by the Constitution is against the spirit of the Constitution"
and at p. 398 he observed that:
"the Constitution implicitly guarantees the right of a person not to be so coerced. Statute which authorises or facilitates such coercion, if now passed by the Oireachtas, would be to that extent unconstitutional."
It is argued on behalf of Portmarnock Golf Club that the Equal Status Act, 2000 and in particular s. 9 goes further than the Trade Dispute Act, 1906. It is submitted that (if the plaintiffs interpretation is not accepted) the section not only authorises or facilitates the coercion of citizens to act in a way which they do not wish to act, but actually seeks to coerce citizens to waive their freedom of association.
These statements of law however are of limited assistance in the present case. The Constitutional right in question i.e. the right to association, is circumscribed and the Constitution specifically envisages legislation for the regulation and control of that right in the public interest. It is in that context that the right in question must be assessed in its application to the facts of this case. The Educational Co. v. Fitzpatrick was not concerned with legislation involving regulation or control of the exercise of the right of association. Moreover I do not accept the contention that the Act attempts to coerce persons to waive their freedom of association, as the right of association is not interfered with nor are the essential activities of the club interfered with (a topic to which I will return).
In Murphy v. Stewart [1973] I.R. 97 it was held that a trade union could not be compelled to admit an applicant to membership. In that case, too the scope and ambit of the regulation and control of the right of an association was not subject to judicial scrutiny.
In Meskell v. Coras Iompair Eireann [1973] I.R. 121 the court held that the right of citizens to form associations and unions guaranteed by Article 40.6.1o of the Constitution necessarily recognised the correlative right to abstain from joining unions, and that an attempt by the defendants to coerce the plaintiff into abandoning his right of dissociation was a violation of the fundamental law of the State and was unlawful notwithstanding that the attempt was based on a proper notice of termination of the plaintiffs contract of service. At p. 135 of the judgment Walsh J. observed:
"If the Oireachtas cannot validly seek to compel a person to forgo a constitutional right can such a power effectively be exercised by some lesser body or by an individual employer? To exercise what may be loosely called a common-law right of dismissal as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common-law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two."
It is submitted that if Portmarnock Golf Club does not come within the exception contemplated by s. 9 of the Equal Status Act, and that the provisions thereof amount to coercion or a way of compelling the Club to forgo a Constitutional right and are therefore impermissible.
The defendants rely on the decisions in the case of Private Motorists Provident Association v. Moore [1983] I.R. 339 and the case of Aughey and Others v. Attorney General [1989] ILRM 87 - as illustrating the powers to enact legislation to regulate and control the right of association despite the severe consequences of such regulation for certain associations or individuals. In P.M.P.S. v. Moore the plaintiff challenged provisions of the Industrial and Provident Societies (Amendment) Act, 1978 which had the effect of precluding the plaintiff from accepting or holding deposits. This provision had the effect of putting an end to the banking business on behalf of the plaintiffs which was a very drastic consequence. While the case turned primarily on property rights under the Constitution it entailed a consideration of the right of association. It was held that the impugned provisions of the Act did not constitute an infringement of the right to form associations.
At p. 361 of the judgment O'Higgins C.J. observed:-
"Mr. Moore's right to associate with others has not been interfered with. The exercise of such a right is not prevented by a law limiting and controlling in the public interest what an association may do. In this instance the law which is impugned does no more than regulate what the Society or association may do and this is not an infringement of Article 40,5.6, subs.s. 1(iii)."
In that case legislation which has a very severe effect on the business of the plaintiff was held not to be repugnant to the guaranteed Constitutional right of association but a permissible control and regulation of those rights in the public interest.
In the case of Aughey and Others v. Attorney General [1989] ILRM 87 the plaintiffs who were detective gardaí who wished to organise a separate representative body rather than joining either of the two recognised garda bodies at the time which alone were authorised to represent the membership. They claimed inter alia that the provisions of section 13 of the Garda Síochána Act, 1924 as amended by s. 1 of the Garda Síochána Act, 1927 infringed the rights of citizens to form associations and unions as guaranteed by Article 40.6.1(iii). Section 13(3) of the Act stated:-
"It shall not be lawful for a member of the Garda Síochána to be or become a member of any trade union or of any association other than the in an association established under this section of which the objects or one of the objects are or is to control or influence the pay pensions or conditions of service of any police force."
The court held at p. 91 that:
"It seems quite from the provision of subs. 3 and 4 that there is no prohibition on members of the Garda Síochána forming or becoming members of a trade union or any other association provided the objects or one of the objects are not or is not to control or influence the pay, pensions or conditions of service of themselves or any police force."
The court held that the restrictions were permissible on the grounds that they were a "regulation" or "control" of the public interest in their right to form associations and unions. As has already been noted that court found it unnecessary to review the decision of the National Union of Railwayman v. Sullivan on the basis that s. 13 of the Act was merely a regulation of the right of association and it was unnecessary to decide whether the considerations of public interest could justify the enactment of laws even from prohibiting the formation of associations and unions absent considerations of public order and morality. The court also held that the restrictions were not an unreasonable or disproportionate regulation of the exercise of the right guaranteed by the Constitution, nor, could it be said that they strike at the roots of the Constitutionally guaranteed right, namely the right to form associations and unions.
Although it is true that, as pointed out by counsel of behalf on Portmarnock Gold Club, both of these decisions were based on the regulation of the activities of the respective associations rather than their formation or their membership decision itself, I cannot agree that all restrictions on membership (at least those falling short of prohibition of membership) can be said to fall outside the ambit of regulation and control, and can only be restricted by considerations of public order and morality.
The case of Educational Company v. Fitzpatrick is not authority for the proposition that membership decisions of clubs cannot be subject to restrictions by legislation. It merely decides that - absent considerations of public order and morality - regulation and control may be such as to be construed as prohibition of the right of association. The present case is not at all concerned with prohibition - at the most it is concerned with regulation and control.
In my view the provisions of the Equal Status Act, 2000 do not amount to actions authorising or facilitating coercion in relation to the right of freedom of association. The members right to associate with each other is unchanged. The right to carry on the main activities of the Club is not affected by the legislation. The right to exclude women from membership is unchanged. The restrictions which would be imposed on the Club by an interpretation other than that contended for by the Golf Club would not strike at the core of freedom of association but would constitute a permissible control and regulation in the public interest of an ancillary activity of the Club. This is still true even if the deprivation of what is loosely termed a Club licence and what have been called the "naming and shaming" provisions are regarded as sanctions, a point which I do not have to decide. The restrictions on activities in this case are - if not peripheral - at least incidental to the purposes of the Club in marked contrast to the regulation held to be permissible in the P.M.P.S. v. Moore and the Aughey v. Attorney General. cases where regulations which impinged on essential purposes of the associations were involved.
The activity prohibited i.e. the holding of what is termed a Club licence - is not a primary or core activity of the Club, and it has not been argued otherwise. Likewise no argument was advanced as to necessity, or even the advantages on a financial level of holding such a Club licence. The right of association is a constitutionally protected right but the right to hold a social Club licence is not. The right to hold such a licence is dependant on the existing statutory regime.
In my view a statute such as the Equal Status Act, 2000 - even if it were to have the effect of depriving the golf Club of its Club licence in circumstances contemplated by s. 8 of the Equal Status Act, 2000 - could not be said to be contrary to the constitutionally protected right of association unless its provisions were unjustified as being disproportionate to the goals of the legislation. No such argument has been pursued in this case.
In the course of submissions, I was also referred to a number of authorities from the United States dealing with the right of association which stressed the difference between private and public associations, and which illustrated the different approaches the courts taken in relation to each. In Bell v. Maryland [1963] 378 US 226 at p. 312/313 Goldberg J. stated:
"Petitioners frankly state that the 'extension of Constitutional guarantees to the authentically private choices of a man is wholly unacceptable, and any Constitutional theory leading to that result would reduce itself to absurdity'. Indeed, the constitutional protection extended to privacy and private associations assures against the imposition of social equality. As noted before the Congress that enacted the Fourteenth Amendment was particularly conscious that the 'civil' rights of man should be distinguished from his 'social' rights. Prejudice and bigotry in any form are regrettable, but it is the constitutional right of every person to close his home or club to any person or to choose his social intimates and business partners solely on the basis of personal prejudices including race. These and other rights pertaining to privacy and private associations are themselves Constitutionally protected liberties".
Counsel also referred me to the dissenting view of Douglas J. in Moose Lodge (No. 107) v. Iris [1971] 407 U.S. 163 at p. 179/180:
"My view of the First Amendment and the related guarantees in the Bill of Rights is that they create a zone of privacy that precludes Government from interfering with private clubs or groups. The association rights which our system honours permit all white, all black, all brown and all yellow clubs to be formed. They also permit all Catholic, and all Jewish or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be. The individual can be as selective as he desires so the fact that the Moose Lodge allows only Caucasians to join or come in as guests is Constitutionally relevant as is the decision of black Muslims to admit to their services only members of the black race. The problem is different, however where the public domain is concerned".
That passage emphasises the importance of freedom of association and also the distinction between private and public domain.
I was also referred to a passage in the case of Evans v. Newton [1996] 382 U.S. 296 at p.229 which stresses the distinction between private and public clubs:-
"A private golf club however restricted to either negro or white membership is one expression of freedom of association. But a municipal golf course that serves only one race is a State activity indicating a preference and the matter to which the State must be neutral".
Roberts v. U.S. Jaycees [1984] U.S. 609 recognised the distinction between the protection offered to private clubs and other. It was held that the local chapters of the Jaycees lacked the distinctive characteristics of a private club that might have afforded constitutional protection to the decision of its members to exclude women from membership.
All these authorities stress the importance of the protection of the freedom of association, in particular, when dealing with private clubs. The cases are supportive of the concept that private associations are protected from State interference.
In the course of submissions, counsel also referred to a number of decisions of the European Court of Human Rights in support of their claims. The right of freedom of association is expressly provided for in Article 11 of the European Convention on Human Rights. It states that:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
Of relevance also to the present case is Article 14 of the Convention which provides that:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The European Convention on Human Rights Act, 2003, came into force on the 1st January, 2004. Therefore, it came into force after the commencement of proceedings in this case, and cannot be applied retrospectively. However, it is well established that Irish Courts will be open to analysis of the Convention and of the case law from the European Court of Human Rights, especially when used as a means of bolstering or clarifying existing constitutional rights. (O'Leary v. Attorney General [1993] 1 I.R. 102, and Murphy v. Independent Radio and Television Commission [1999] 1 IR 12).
The court was referred to the decision of the Court of Human Rights in Sigurjonsson v. Iceland (1993) 16 EHRR 462, where the court adopted the same approach as the Irish courts in Meskell's case in holding that freedom of association necessarily involves the negative right to disassociate from other people, and went on to hold that an Icelandic law requiring taxi drivers to join a trade union was contrary to the Convention and in Young, James and Webster v. United Kingdom (1982) 4 EH RR 38, the European Court similarly held that an attempt to oblige employees to join a union, under threat of dismissal, was a breach of the Convention's guarantee of freedom of association. The Court held at para. 55 that "such a form of compulsion…strikes at the very substance of the freedom guaranteed by Article 11". Another case that displayed some parallels with the present case, is that of Wilson & Ors v. United Kingdom (2002) 13 E.H.R.R. 39. In that case, the applicants were journalists whose employer sought to introduce a scheme of differential payment, effectively paying those employees that didn't join the union more than those that did. The Court held that such indirect pressure to abandon, waive or modify the right to freedom of association could not conform with the Convention's protection afforded to that very right. The Court said at para. 48 that:
"By permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention".
The actions of the employer were held to constitute impermissible pressure on the employees. It was submitted that if economic pressure not to join a union could be said to be contrary to Article 11, the imposition of a sanction would amount to an infringement on the constitutional and Convention right to freedom of association. However, Article 11(2) of the Convention does provide that there may be restrictions on the freedom, where such restrictions are "prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others". The Equality Authority relies on the decision of the European Court of Human Rights in Gorzelik & Ors v. Poland (2004) 38 EHRR 4. , which concerned the Polish authorities' refusal to register an association by the name of "Union of People with Silesian Nationality". The effect of registration would have been to give the applicants the status of a registered organisation of a national minority. While it was accepted that there was an interference with the applicant's freedom of association, the question which fell to be decided was whether or not such interference was justified. The Court stated at para. 88 that:
" The right to freedom of association…incorporates the right to form an association. The ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning…. The Court has on numerous occasions affirmed the direct relationship between democracy, pluralism and the freedom of association and has established the principle that only convincing and compelling reasons can justify restrictions on that freedom."
The Court recognised the fundamental nature of the freedom of association, but also held that it could be subjected to restrictions, provided such were necessary in a democratic society and in accordance with the law. This approach is consistent with the approach adopted by the Irish courts and is of use as an illustration of the importance that must be attached to the freedom of association. However, the Convention does not have direct application to this case and ultimately the case must be decided on Irish Constitutional law grounds.
The case law from other jurisdictions and from the Court of Human Rights are instructive that in they emphasise the importance attached to freedom of association and in particular private associations. However in Article 40.6.1.iii is not replicated in the Constitution of the United States and there is a considerable body of Irish case law on the question of freedom of association. For the reasons I have outlined I accept the argument of the defendants as to the extent to which it is permissible for legislation to circumscribe the constitutional right of freedom of association and cannot agree with the plaintiffs' submissions on that topic.
Equality
The second and third named defendants seek to rely on the Article 40.1 guarantee of equality before the law as providing some constitutional support for the provisions of ss. 8,9 and 10 of the Act. Counsel for the Golf Club argues that the membership rules of the plaintiff Club are protected by Article 40.6.1o.iii of the Constitution and are not inconsistent with Article 40.1. He submits that constitutional boundaries between the associational rights and equality were fixed by the Constitution from the time of its adoption by the People. He submits that this is not legislation which seeks to enforce a Constitutional right or to balance competing constitutional rights. It is contended that the Equal Status Act, 2000 (unless interpreted in the manner for which the golf club contends) interferes with the Constitutional rights of the citizen, which interference could only be restricted by considerations of public order and morality which do not apply in this case. The plaintiff's argument that Article 40.1 of the Constitution is not a guarantee of the treatment between individuals in society but of equality before the law.
It is submitted that Article 40.1 guarantees equality before the law `but does not impose obligations on private citizens such as members of a club in their private relations. Counsel points out that the Constitutional Review Group recommended against such a development. It is submitted that Article 40.1 has no application in this particular case. The defendants however argue that equality is a core Constitutional value of the State. In An Blascaod Mór Teoranta v. Commissioners of Public Works (No. 3) [2000] 1 IR 6 Barrington J. stated at p. 19, that Ireland:-
"is a democratic society committed to the principle of equality".
The extent to which, if at all the provisions of Article 40.1 are applicable in the area of private law was specifically referred to but not decided in the case of the Employment Equality Bill, 1996 [1997] 2 IR 321. Hamilton C.J. stated at p. 347 that:
"the forms of discrimination which, presumptively at least, prescribed (sic) by Article 40, s.1 are not particularised: manifestly, they would extend to classifications based on sex, race, language, religious or political opinions".
(There is clearly a misprint here and the word "proscribed" is intended.)
I accept the plaintiffs submission that as interpreted by the courts Article 40.1 of the Constitution guarantees process equality and does not impose obligations on citizens in their private relations. In my view, however the Oireachtas is entitled to legislate positively to vindicate and promote the value of equality in the legislation promoting those values, that may legitimately have an effect on private individuals. The question of balance between such competing Constitutional rights is primarily to be resolved by the Oireachtas. In this case no argument has been made to the Court that the provisions were impermissible insofar as they were disproportionate.
Conclusion
For the reasons I have set out the plaintiffs' constitutional arguments cannot prevail. I do not accept that the right of association can only be circumscribed by considerations of "public order and morality". In my view there is no warrant in the case law for his contention that the "membership decision" (as it has been called) is subject to different criteria to the activities of a club with regard to what may be subject matter of legislation. Furthermore, I do not accept the submission that the constitutional right of freedom of association is to be taken in the isolated fashion contended for by the golf club. Moreover the submissions of the golf club on Article 40.1 of the Constitution do not preclude t he enactment of legislation to achieve equality.
The opinion of the High Court is sought in the case stated as to whether the District Court was correct in law in making the determination that the Club was a discriminating Club and in imposing the consequential order. It follows from the findings of this Court that the answer to the question is in the negative.
In the other proceedings the plaintiff is entitled to a declaration that by reason of the provisions of s. 9 of the Equal Status Act, 2000 the Club shall not be considered a discriminating Club for the purposes of s. 8 of the Equal Status Act, 2000.
Approved: Kevin O'Higgins J.
10th June, 2005
