Regulations governing Garda sick pay were not ultra vires

(Finlay Geoghegan J.) Administrative law – employment law – whether the Minister is obliged to consult in advance with the representative association of the group of individuals directly affected by statutory instruments – judicial review – Public Service Management (Sick Leave) Regulations 2014 (S.I. 124/2014) – whether the respondent was obliged to consult with GRA in advance of making the Regulations and failed to do so – legitimate expectation – whether or not Kearns P. was correct in dismissing the applicants’ challenge to the validity of the Regulations based upon the procedures followed was or was not correct – sick pay reform – labour relations – duty to consult – whether the Regulations are themselves incoherent – promise or representation to GRA that there would be a consultation process – fair procedures – s. 58B of the 2013 Act – regulations potentially apply to broad but specified categories of persons and are intended to alter existing conditions of employment – trial judge was correct in dismissing the claims made by the appellants that the Regulations were ultra vires the Minister by reason either of a breach of their legitimate expectation to a further consultation process or by reason of a failure in a duty to consult imposed by law prior to the making of the Regulations – cross appeal on costs dismissed – appeal dismissed.

"However, the decisions delegated to the respondent by sub-ss. (1), (2), (5) and (6) of s. 58B and the matters to which he must have regard in subs. (4) require the respondent to make decisions which are essentially policy decisions. He is of course bound by the general policy of the 2013 Act. Nevertheless s.58B requires the respondent to balance the financial situation and constraints on the State referred to in sub-s(4)(a),(b),and (c) with the need to protect the health of public servants (e) and the desirability of there being a measure of provision, for making payments to public servants who are unable to attend to their duties due to illness or injury. The decision as to how to balance these competing matters primarily involves policy considerations. It is also relevant that the Regulations alone do not determine the actual sick pay to be made to any individual. They do of course determine by what criteria the individual administrative decisions are to be reached by the relevant public service body. However subs. (5) and (6) authorise the respondent to leave certain decisions to the relevant public service body."

(Hogan J): Administrative law – whether the Minister is obliged to consult in advance with the representative association of the group of individuals directly affected by statutory instruments – rank and file members of An Garda Síochána – Public Service Management (Sick Leave) Regulations 2014 (S.I. No. 124 of 2014) – 2014 Regulations significantly curtail the pre-existing entitlements of Garda members to sick pay remuneration – Public Service Management (Recruitment and Appointments) (Amendment) Bill, 2013 – Minister changed his mind and decided that both the new legislation and the regulations to be made there under would apply to the Gardai with immediate effect – reason for this volte face was that the General Secretary of the public sector trade union IMPACT made it clear that the public sector trade unions could not accept a special exemption or derogation for the Gardai – whether the 2014 Regulations were ultra vires because the Minister made the decision to include An Garda Siochána in the new sick pay regime while the promised consultations were still outstanding – difference between the judicial function and that the rather different roles performed by the two branches of government which are democratically accountable, namely, the Oireachtas and the Government – Article 34.1 of the Constitution – legitimate expectation of the promise of consultation independently – fair procedures – rationality of Article 9 and Article 10 of the 2014 Regulations – while the GRA are understandably aggrieved by both the manner of the Minister’s sudden volte face and the reasons for it, this does not give the applicants any legal ground of objection to the manner in which the 2014 Regulations were promulgated – appeal dismiss.

"For the reasons stated, therefore, I consider that while the GRA are understandably aggrieved by both the manner of the Minister’s suddenvolte face and the reasons for it, this does not give the applicants any legal ground of objection to the manner in which the 2014 Regulations were promulgated. These are generally applicable rules which were made by the respondent Minister pursuant to the authority conferred on him by the 2013 Act. The principles of fair procedures have no application in the context of the making of generally applicable regulations of this kind."