Supreme Court: GRA did not have right to be consulted on introduction of sick leave regulations

About this case:

• Judgment:
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The GRA argued that there was a legal entitlement to be consulted prior to the making of regulations which significantly reduced the level of remuneration, however Chief Justice Frank Clarke concluded that there was no right to consultation conferred by the statutory regime, and that a generalised entitlement had been satisfied by the lengthy engagement between the GRA and the government.

Background

The Public Service Management (Sick Leave) Regulations 2014 had the effect of significantly altering the sick leave regime applicable for certain categories of public servants including members of An Garda Síochána.

The Regulations did not arise by operation of the Garda Síochána Act 2005, but by operation of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013, which in essence created a parallel system for the making of regulations in relation to the sick leave remuneration of inter alia An Garda Síochána.

Section 58 of Part 7A of the Public Service Management (Recruitment and Appointments) Act 2004 conferred the power to make the Regulations on the Minister for Public Expenditure and Reform.

The central issue raised in these proceedings concerns the extent to which the law may impose an obligation to consult before such introducing measures, and therefore the case was concerned with whether the changes to the sick pay regime were lawful.

The GRA brought judicial review proceedings in the High Court which challenged the lawfulness of the Public Service Management (Sick Leave) Regulations 2014 which brought about the alteration in the sick leave regime

The claim failed in the High Court, and the Court of Appeal dismissed the GRA’s appeal.

Supreme Court

Chief Justice Clarke identified the following questions:

Clarke CJ was satisfied that the relevant statutory regimes did “not, of themselves, confer any right to be consulted prior to the making of regulations by the Minister for Public Expenditure and Reform under the measures introduced by the ”.

The Public Service Management (Sick Leave) Regulations 2014 were introduced under the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013, which applies “notwithstanding any other legislative provision”.

Clarke CJ said that he had been “prepared to accept” that the GRA was entitled to some engagement prior to the 2014 Regulations on two bases:

1. The possibility that the restrictions placed on the ability of An Garda Síochána to conduct what for others might be considered to be ordinary industrial relations may give rise to an entitlement to be consulted.

2. That the history of the engagement between the parties was such as to give rise to a legitimate expectation that some form of consultation or the right to make representations would be afforded.

However, Clarke CJ concluded that it was not arguable that there “could be a right to any specific form of process” under either of those headings.

At most, the entitlement could only extend to to “a generalised form of consultation or facility to make representations”.

In those circumstances, no breach of any such general entitlement was established, as there had been “a lengthy engagement between what might loosely be called the Government side and the GRA”.

Dismissing the appeal, Clarke CJ said it was not “necessary to finally determine whether any such rights exist in the first place for even if they do, such rights have not been breached”.