Constitutional - Equality Before The Law

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Zappone & Gilligan v. Revenue Commissioners (2006)

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High Court - Dunne J. rejected the same-sex couple’s claim (for the same tax benefits as enjoyed by an opposite-sex couple) by quoting a Californian Court which had analysed the issue not as “unequal access”, but rather “equal protection”.

The state is not interfering with how people conduct personal aspects of their lives, but rather with how they access tangible and intangible benefits offered by the state. Finally,

Dunne J. held that the justification for any discrimination is contained in the Constitution itself – i.e. in Article 41 (Family).

Substantive appeal still pending.

Held by the High Court (Dunne J.), in dismissing the claim,

1, that the right to marry contained in the Constitution was not an express right but was clearly implicit from the terms of Article 41. The definition of marriage to date had always been understood as being opposite sex marriage. Marriage was understood under the Constitution to be confined to persons of the opposite sex and the court could not now redefine marriage to encompass same sex marriage.
Murray v. Ireland [1985] I.R. 532 ; T.F. v. Ireland [1995] 1 I.R. 321 ; D.T. v. C.T. (Divorce: Ample resources) [2002] 3 I.R. 334 and Foy v. An tArd Chláraitheoir (Unreported, High Court, McKechnie J., 9th July, 2002) followed. Goodwin v. United Kingdom (2002) 35 E.H.R.R. 447 considered.

2. That the Constitution was a living instrument and must be interpreted in the light of prevailing ideas and concepts. Section 2(2)(e) of the Civil Registration Act 2004 set out what was previously the common law exclusion of same sex couples from the institution of marriage and this was an indication of the prevailing idea and concept of what marriage was and how it should be defined. The Act of 2004 was entitled to a presumption of constitutionality and was an expression of the prevailing view as to the basis for capacity to marry.
McGee v. Attorney General [1974] I.R. 284 and Sinnott v. Minister for Education [2001] 2 I.R. 545 followed.

3. That the right to opposite sex marriage was derived from the Constitution and that was justification for any distinction between the position of the plaintiffs and married couples. The tax code was applied to the plaintiffs in the same way as it applied to cohabiting heterosexual couples. The plaintiffs were not in law treated any differently from any other non-married heterosexual couples.
Woo v. Lockyer and Others (Unreported, Court of Appeal for the State of California, 5th October, 2006) considered.

4. That if there was, in fact, any form of discriminatory distinction between same sex couples and opposite sex couples by reason of the exclusion of same sex couples from the right to marry, then Article 41 in its clear terms as to guarding the family provided the necessary justification. A further ground of justification was the protection of the welfare of children. The State was entitled to adopt a cautious approach to changing the capacity to marry albeit that there was no evidence of any adverse impact on the welfare of children.

5. That, having regard to all of the provisions of Articles 41 and 42 of the Constitution, the definition of marriage could not, having regard to the ordinary and natural meaning of the words used, relate to a same sex couple

6. That the legal provisions in relation to the right to marry and to capacity to marry in this jurisdiction were not incompatible with the provisions of the European Convention on Human Rights. There were clear limitations to the "living instrument" doctrine and it could not be applied to bring within the scope of the European Convention on Human Rights issues which were plainly outside its contemplation. It was not possible to interpret or extend article 12 of the Convention so as to recognise an unqualified right of a man or a woman to marry a person of the same, as well as the opposite, sex.
Johnston v. Ireland (1987) 9 E.H.R.R. 203 and Wilkinson and Kitzinger v. Attorney General [2006] EWHC 2002 (Fam), (Unreported, High Court, Potter P., 31st July, 2006) followed. Goodwin v. United Kingdom (2002) 35 E.H.R.R. 447 considered.

7. That article 8 of the European Convention on Human Rights did not avail the plaintiffs in the circumstances of this case. Article 8 did not impose on contracting states a positive obligation to establish for unmarried couples a status analogous to that of married couples. While the plaintiffs wished to marry they were legally incapable of doing so.
Johnston v. Ireland (1987) 9 E.H.R.R. 203 and Wilkinson and Kitzinger v. Attorney General [2006] EWHC 2002 (Fam), (Unreported, High Court, Potter P., 31st July, 2006) followed.

8. That there was no violation of the plaintiffs' rights under article 14 of the European Convention on Human Rights. The lack of a civil partnership scheme in this jurisdiction did not bring into effect the provisions of article 14. Article 12 of the Convention stated expressly that the right to marry was "according to the national laws governing the exercise of this right". Clearly, there was a wide margin of appreciation given to contracting states in this area and this area was one on which there was no consensus across Europe.
Johnston v. Ireland (1987) 9 E.H.R.R. 203 followed and Wilkinson and Kitzinger v. Attorney General [2006] EWHC 2002 (Fam), (Unreported, High Court, Potter P., 31st July, 2006) considered.

Obiter dictum: That people in the position of the plaintiffs, be they same sex couples or heterosexual couples, can suffer great difficulty or hardship in the event of the death or serious illness of their partners but it was for the legislature to determine the extent to which legislative changes should be introduced to ameliorate the situation of same sex couples and unmarried heterosexual couples.

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MD v Ireland & A. Gen (2010)

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The plaintiff challenged the constitutionality of various provisions (ss 5 and 3(1)) of the Criminal Law (Sexual Offences) Act 2006.

In September 2007 criminal proceedings were instituted against the plaintiff in relation to having engaged in sexual intercourse with a girl under 17 years contrary to s 3 ( 1) of the 2006 Act.

At the time the plaintiff was 15 years old and the girl was 14 years old. Sectwn 3(1)
provides that any person who engages in a sexual act with a child under 17 years "shall be
guilty of an offence".

Under Section 3(7) consent is not a defence. Section 5 provides that a female child is not guilty of an offence "by reason only of her engaging in an act of sexual intercourse".

The plaintiff alleged that s 5 was gender based and discriminatory and was based on "crude, traditional sexual stereotype".

The State argued that:
(1) the physical differences between male and females under 17;

(2) the fact that a female child may become pregnant, and

(3) the different medical and psychological effects of sexual intercourse for a male and female justified the differing treatment of male and female children.

Dunne J referred to a number of Irish precedent cases involving gender based discrimination - The State ( DPP) v Walsh [1981] 1 IR 412; M v Ireland[2007J 4 IR 369; Somjee v Minister for
Justice [1981] J ILRM 324 and CC v Ireland [2004] IR 1.

Limited, Rational and Justified Discrimination ·

Dunne J clarified that the scope of s 5 was limited:

"s.5 does not confer immunity in respect of women from prosecution. Only girls under
the age of seventeen receive immunity and such immunity is limited to cases of sexual
intercourse."

She also drew attention to the fact that if section 5 were found unconstitutional it would be of
no benefit to the plaintiff as it would simply remove the immunity for females under 17.

In relation to the key question of whether a distinction can be made based on gender, she noted that the discrimination in this case was rational and justified. This was one of the areas where there are differences between the sexes and this justified a differing approach.

Based on the consequences of pregnancy, the risk of females not reporting offences for fear of prosecution were legitimate considerations. The Act adopted a balanced approach:

"Girls and boys are equally liable to prosecution in respect of sexual activity falling short of sexual intercourse. S.5 applies only to acts of sexual intercourse. Thus the
immunity only applies to the one area of sexual activity that can result in pregnancy ... The risk of pregnancy is only borne by girls. "

Dunne J concluded:

"Far from being an example of good old fashioned discrimination against young
boys ... the Act provides a limited immunity to girls in the one area of sexual activity
that can result in pregnancy.

Society is entitled to deter such activity and to place a
burden of criminal sanction on those who bear the least adverse consequences of such
activity. The Act goes no further than is necessary to achieve this object."

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Lowth v. Minister for Social Welfare (1999)

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SC upheld legislation giving preferential treatement to deserted wives as compared to deserted husbands, purely on the basis of statistics showing that far fewer deserted wives returned to the labour force.

Per Kelly: this is a case of judicial gender stereotyping, and lacks any real constitutional rationale.

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W. v. W. (1993)

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Common law rule of dependent domicile (a wife was domiciled where her husband was, but not vice versa) was held to be in breach of Art. 40.1; despite marriage’s social function, “there can be no sex discrimination between equals”.

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O’G v. AG (1996)

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Proviso failed; impugned legislation allowed a widow to adopt a child in a couple’s custody where the man died, but did not allow the widower to do the same; the Pl adduced expert evidence to show that a difference in sex of the remaining parent would not affect the child developmentally; McMahon J. rejected the Def’s argument that the “social function” referred to in the proviso played a role here.

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Murphy v. AG (1982)

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Proviso relied on; unfavourable tax treatment of married couples was impugned; the Pl’s case failed on the basis that the treatment could be offset against other favourable treatment. A very dubious decision indeed – this seems like judicial legislation in balancing up pros and cons, and, as Casey has pointed out, the reasoning would justify denying blind people university places on the basis of favourable treatment elsewhere.

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de Burca v. AG (1976)

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Woman’s exemption from jury service impugned; majority held that it breached Art. 40.1.

Per Walsh J.: sex cannot be used as a grounds of discrimination unless the proviso applied, i.e. some relevant distinction of physical or moral capacity or social function must be shown.

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Somjee v. Minister for Justice (1981)

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Legislation provided almost automatic right of citizenship for a woman marrying an Irish man – only formalities had to be fulfilled, and nobody was vested with discretion to refuse.

Meanwhile, a similar application by a man marrying an Irish woman was subject to the absolute discretion of the Minister for Justice.

Somjee’s application for declaration of unconstitutionality under Art. 40.1 was rejected;

Keane J. deferred fully to the legislature, presuming there was a reasonable ground for the distinction: “it was open to the legislature to take the view that the likelihood of females being engaged in any of the activities which might be relevant to considering an application for citizenship was sufficiently remote to justify the automatic granting of citizenship”.

A terrible decision.

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Gender Based Discrimination

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*insert summary*

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Equality Authority v. Portmarnock Golf Club (2005)

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O’Higgins J. (HC) held that, provided constitutional rights are balanced properly, the equality guarantee could lead to obligations on private citizens (in this case, a golf club).

Facts: section 8 of the Equal Status Act 2000 prohibits discrimination by clubs in its admission policies or rules. Section 9 of the Act of 2000 provides that “a club shall not be…a discriminating club…if its principal purpose is to cater only for the needs of persons of a particular gender”. Rule 3 of the defendant’s rules provides that it is a golf club whose members “shall be gentlemen…”. As such, women were not permitted to become members. The plaintiff initiated proceedings against the defendant seeking a declaration that the club by refusing membership to women, was a discriminatory club within the meaning of section 8 of the Act of 2000. The District Court stated a case to the High Court for its opinion as to whether it had been correct in making such a declaration. The defendant contended that, by virtue of section 9 of the Act of 2000, it was exempt from section 8 thereof as the word “needs” included social, cultural and recreational needs.

Held by O’Higgins J in answering the case stated in the negative that an interpretation of section 9 of the Act of 2000 which included social, cultural and recreational needs did not undermine the aims of the Act but recognised the fact that there was nothing inherently undesirable with persons seeking in a social context the society of persons of the same gender or the same nationality or religion. As such, the defendant, whose purpose was to cater only for the needs of male golfers came within the exceptions of section 8 of the Act of 2000 provided for by section 9.

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Norris v. AG (1984)

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SC rejected Norris’ argument that the impugned legislation discriminated unconstitutionally between male and female homosexuals, on the basis that the legislature was entitled to consider one type of homosexuality (i.e. between males) a social problem, while finding no need to criminalise female homosexual acts; thus the discriminaton was proportionate.

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Cox v. Ireland (1992)

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S. 34 OASA 1939 provided that a public servant convicted of a scheduled offence would be automatically disqualified from public service employment and forfeit pension entitlements; the accused was convicted of storing firearms and argued that s. 34 was an unconstitutional infringement of his right (to equality? Really?) The court deemed the infringement to be disproportionate.

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Dillane v. Ireland (1980)

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SC upheld a DC rule that costs could be awarded against common informers but not against members of the Garda Síochána acting in the course of duty; the rationale was that Gardaí fufil a social function in appearing before courts and they should be entitled to do this with immunity from liability; thus the breach of equality between persons was deemed proportionate to the social purpose of the rule.

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An Blascaod Mór Teo v. Commissioner of Public Works (2000)

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While legislation may classify citizens into various groups for legislative purposes, classification based on pedigree has no place in a democratic society; thus discrimination between people who owned or occupied and resided on the Blaskets prior to 1953 was deemed unconstitutional.

The court held that the constitution should be pedigree-blind, just as it is gender- and colour-blind.

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Quinn’s Supermarket v. AG (1972)

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Walsh J. developed the human personality doctrine;

(1) the Pl, as a corporate entity, was precluded from relying upon Art. 40.1 because it is specifically addressed to humans,

(2) “this guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades, or pursuits which they may engage in or follow”.

Thus, discrimination against e.g. teachers is fine; but discrimination against e.g. black-haired people is not.

Supreme Court: Walsh J:

Article 40.1" is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and .. .is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.

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Condon v. Minister for Labour (1980)

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Under Walsh J.’s (Quinn's Supermarket) doctrine, discrimination against bank clerks in respect of a national wage agreement were upheld as not breaching Art. 40.1.
 The human personality doctrine an exceedingly narrow view of equality, and is possibly in decline; however, to achieve this, the CRG recommends the deletion of “as human persons” from Art. 40.1. The doctrine is ridiculuous, as Kelly points out, because it suggests that “human personality could exist in a void”.

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Article 40.1

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All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity, physical and moral, and of social function.

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Equality before the law - general

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Article 40.1: All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity, physical and moral, and of social function.

“This provision is not a guarantee of absolute equality for all citizens in all circumstances, but it is a guarantee of equality as human persons … a guarantee related to their dignity as human beings”, per Walsh J. in Quinn’s Supermarket.

“Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances but it forbids invidious or arbitrary discrimination”, per Walsh J. in de Burca.

Unlike other rights, not a substantive right, but rather an obligation of the State not to administer the law arbitrarily or unreasonably.
Marked reluctance to declare legislation unconstitutional under Art. 40.1; restricted to cases of human dignity; e.g. MacMathúna v. AG (1995)

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MacMathúna v. AG (1995)

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The SC held that the equality rights of a married couple with nine children had not been breached; they had argued that, because unmarried or separated mothers receive more state benefit, they had been discriminated against.

The SC held that deciding on these issues would be to usurp the legislature.

Equality in all circumstances is not protected: discrimination is permitted where relevant.

Here, the touchstone is reasonableness or rationality:

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Dillan v. Ireland (1980)

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Henchy J.: the court will not condemn discrimination if “it is is not arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection of classication complained of”

State is a party to the Convention (first to ratify it, in fact – February 1953), but it was never part of domestic law.

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Murphy v. AG (1982)

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“Inequality would not be set aside as repugnant to the constitution … if any state of facts exist which may reasonably justify it”. What a weak protection! Clearly influential in the Somjee decision.

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“As Human Persons” – Human Personality Doctrine

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o Quinn Supermarkets

o Context vs Basis for Discrimination. Basis was religion (covered by Human Personality doctrine) but Context was trading (not covered)

o Application of “Human Personality” test – analogy to Proportionality Test Application – Read Acadmic articles – Brian Foley

o Murtagh Properties v Cleary - Does not apply to Trading activities

o O’Beolain v Fahy - Failure of the State to provide Irish Translations of the Rules of Court to allow one conduct one’s case through Irish. Could have been deemed a non-Human Persons “context” but was not.

o Brennan v AG - Property tax on land values. not referable to any “human person” attributes. the differences were in the parcels of land themselves, not the persons who owned the land

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Presumptively Invalid/Suspect Classification

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o Re A26 and the EEB 1996

o Supreme Court considered whether presumptive Discrimination could be applied and proscribed by Article 40.1

o Can be applied, but was not in the context of Age

o An Blascoad Mor Teoranta v Commissioner for Public Works
o Discrimination based on Pedigree (who parents were) Unconstitutional, possibly presumptively invalid.

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Legitimate reasons for Legislative Discrimination

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o Sex Discrimination
o Mitchell v Ireland, De Burca v AG No legitimate legislative reason
o Re Phillip Clarke – Differences of Mental Capacity - not physical, moral or social function

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Standard applied by Courts for testing legislative discrimination/classifications

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o Be for a legitimate legislative purpose
o The classification must be relevant to that purpose
o Each class must be treated fairly.
o Dillane v AG, TO’G v AG, State (Nicolau) v An Bord Uchtala

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Horizontal Effect

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In Ireland it seems that in some circumstances constitutional principles are not only applicable as against the State but as against private persons, too. Some cases support this proposition only inferentially.

For example, in Meskell -v- CIE (1973), and not in the context of the equality guarantee, a trade union was held liable for a breach of rights.

In the context f equality it was noted in Re Article 26 and the Employment Equality Bill (1997) that the Supreme Court made comments that Art 40.1:

"is in its terms not confmed to the State in its legislative role. It is unnecessary, in the context of the present case, to consider to what extent, if any, the provisions of the Article may be applicable in the area of private law."

Students must consider the recent decision of O'Higgins J in Equality Authority v Portmarnock Golf Club & Ors4 (2005).

His comments, although in obiter, seem to cast some doubt on the possibility of horizontal effect. He noted that:

"I accept the plaintiff's 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."

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J & J Haire & Company Ltd & Ors v Min for Health & Ors (2009)

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The plaintiffs were pharmacists engaged in the provision of medicines to eligible members of the public under a contract agreed with the Health Service Executive. That contract allowed the first defendant ("the Minister"), after consultation with a pharmacist's representative body, to approve or direct the rates to be paid in return for the provision of services under the contract. It also provided that nothing in the contract was to interfere with the statutory functions of the Minister.
In response to a downturn in the public finances the Government introduced the Financial Emergency Measures in the Public Interest Act 2009 ("the Act") which allowed for the reduction of amounts paid by the State to certain persons, including pharmacists. Pursuant to powers under this Act, the Minister introduced the Health Professionals (Reduction of Payments to Community Pharmacist Contractors) Regulations 2009 ("the Regulations") which reduced payments made to pharmacists under the scheme.

The plaintiffs brought proceedings challenging the constitutionality of both the Act of 2009 and the Regulations. They argued, inter alia , that the Act was unconstitutional in so far as it allowed the Minister to unilaterally alter contracts between the plaintiffs and the Health Service Executive; that the contractual property rights which they enjoyed under their contract with the Health Service Executive had been infringed in an arbitrary, capricious and discriminatory manner; that the Minister had exceeded her powers under the Act and was not merely giving effect to its principles and policies in introducing the Regulations; that the Regulations infringed the principles of equality in that other professionals received a lesser reduction in their rates; that the Minister had failed to engage in a meaningful consultation with pharmacists as required under the Act and that the Regulations were not published or promulgated in a proper manner in that they were signed prior to being laid before the Houses of the Oireachtas. They further argued that the Minister had acted in breach of contract by failing to employ the provisions of the contract to alter the rates payable under it.

Held by the High Court (McMahon J.), in refusing the relief sought, 1, that the plaintiffs' constitutional property rights were no more or no less than those they enjoyed under the contract. As the Minister was entitled to vary the rates under the contract, the varying of those rates pursuant to a statutory power did not infringe any constitutional right of the plaintiffs.
Blake v. The Attorney General [1982] I.R. 117 ; Condon v. Minister for Labour (No. 2) (Unreported, High Court, McWilliam J., 11th June, 1980); Hempenstall v. Minister for the Environment [1994] 2 I.R. 20 and Shanley v. Commissioners for Public Works in Ireland [1992] 2 I.R. 477 considered; Irish Pharmaceutical Union v. Minister for Health [2007] IEHC 222, (Unreported, High Court, Clarke J., 29th June, 2007) distinguished.

2. That the reduction of the rates in question did not constitute an unjust attack on the plaintiffs' property rights as alleged by them. The Act of 2009 was a measured, proportionate and carefully drawn response to an unprecedented economic crisis and had a number of significant safeguards contained in it.
Moynihan v. Greensmyth [1977] I.R. 55 ; Hamilton v. Hamilton [1982] I.R. 466 and The Health (Amendment) (No. 2) Bill 2004 [2005] IESC 7, [2005] 1 I.R. 105 considered.

3. That the purpose of the Act of 2009 was to reduce State spending and the reductions effected by the Minister in introducing the cuts were merely giving effect to that purpose. The Minister had not, therefore, gone beyond the principles and policies contained in the legislation itself.
Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381 applied.

4. That the Minister had not acted in breach of contract in choosing to engage in a consultation process established in the legislation rather than that provided for in the contract itself, particularly since the process contained in the legislation was more onerous and afforded the plaintiffs more protection. The plaintiffs had also failed to offer any evidence that the consultation process which had taken place with regard to the reductions in payments was inadequate.

5. That the plaintiffs had failed to offer any evidence of unequal treatment and they bore the burden of proof in this regard. The mere fact that the reduction in payments to pharmacists was greater than that to other professionals was not sufficient to show unequal treatment since no comparative evidence of the circumstances or contracts of those other professionals had been tendered to the court. In any event the equality protection under the Constitution extended to humans only and could not be relied upon by companies or other legal entities.
Murphy v. The Attorney General [1982] I.R. 241 ; Brennan v. Attorney General [1983] I.L.R.M. 449 ; J.D. v. Residential Institutions Redress Board [2009] IESC 59, [2010] 1 I.R. 262 and The Employment Equality Bill, 1996[1997] 2 I.R. 321 applied.

6. That the promulgation of the Regulations complied with the requirements of Irish law and the plaintiffs had not, in any event, been prejudiced by any perceived shortcomings in this regard.
Madigan v. Attorney General [1986] I.L.R.M. 136 applied; Heinrich (Case C-345/06) [2009] 3 C.M.L.R. 7, Skoma-Lux v. Celníøeditelství Olomouc (Case C-161/06) [2007] E.C.R. I-10841 and ROM-projecten v. Staatssecretaris van Economische Zaken (Case C-158/06) [2007] E.C.R. I-5103 distinguished.

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Equality Authority v. Portmarnock Golf Club (2010)

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The plaintiff ("the Equality Authority") applied to the District Court for a determination pursuant to the Equal Status Act 2000 that the first defendant ("Portmarnock Golf Club") was a discriminating club. The District Court Judge found in favour of the Equality Authority, but subsequently, on the application of Portmarnock Golf Club, stated a case to the High Court for determination.

In parallel, Portmarnock Golf Club issued plenary proceedings in the High Court seeking, inter alia , declarations that it was not a discriminating club and, alternatively, if it was so found, that the Equal Status Act 2000 was unconstitutional. The High Court (O'Higgins J.) heard both proceedings together, and found that Portmarnock Golf Club was not a discriminating club (see [2005] IEHC 235).

O'Higgins J. went on to consider Portmarnock Golf Club's constitutional challenge and concluded that if it was necessary to consider same, the claim of unconstitutionality would be dismissed. The Equality Authority appealed against the finding that Portmarnock Golf Club was not a discriminating club, while Portmarnock Golf Club cross-appealed against the dismissal of its constitutional challenge and the order of costs made against it in respect of same. Portmarnock Golf Club argued that it should not be considered to be a discriminating club as it came within the exception of s. 9 of the Equal Status Act 2000, as a club which had the principal purpose of catering only for the needs of men.

The Equality Authority submitted that the principal purpose of Portmarnock Golf Club was to play golf and not to cater for the needs of one gender. The Equality Authority further argued that in order to successfully come within the exception of s. 9 of the Act of 2000, it would have to be shown that there was a link or nexus between the principal purpose of the club and the category to which membership was limited, and that to interpret s. 9 in the manner contended for by Portmarnock Golf Club would entirely empty the section of its content and effect. The Equality Authority also argued that Portmarnock Golf Club did not cater "only" for the needs of men as it also allowed women golfers to play on the course and use its facilites.

Held by the Supreme Court (Hardiman, Geoghegan and Macken JJ.; Denham and Fennelly JJ. dissenting), in dismissing the appeal of the Equality Authority, 1, that the interpretation of s. 9(1)(a) of the Equal Status Act 2000 argued for by the Equality Authority would require the court to add words, namely "as such", to the subsection, which it would decline to do as the legislature had specifically chosen not to employ such words. Neither was it a requirement that a party show a logical connection between the principal purpose of the club and the category of person to which membership was limited. It was to be assumed that statutory words had some meaning and made practical sense, and it would not be appropriate to adopt an interpretation which negatived both of these things. The legislature was presumed not to act vainly or futilely, which would be the result if s. 9(1)(a) was interpreted in such a way as to mean that a category of entities was created that in practice never had, and never would have, any members. It was reasonable to assume that s. 9 was not designed to deal with purely theoretical and potentially non-existent clubs but was concerned with actual categories of clubs which did exist within the State.

Per Denham J. (dissenting): Under the Act of 2000, it was necessary to determine the principal purpose of a club from the facts and there might be no presumption that all clubs were for a purpose or to commence from that presumption. The principal purpose of Portmarnock Golf Club was to play golf. In order to come within the exceptions of s. 9, there should be a logical connection between the objects of the club and the category of persons to whom membership was limited. There was no logical connection between the playing of golf and the male gender.

Per Fennelly J. (dissenting): That, in the context of s. 9 of the Act of 2000, the word "needs", of necessity, had to relate to the principal purpose of the club.

2. That the fact that Portmarnock Golf Club catered for women golfers without allowing them become members was not relevant, as it was necessary to distinguish between the club's principal purpose, and the fact that it was obliged by law to cater for the needs of women golfers. The fact that the club complied with the law in how it dealt with the general public in no way undermined its right to have a different arrangement in its own private and internal affairs, which was what s. 9(1)(a) permitted. A rigid limitation of the club's activities to an activity which was a need of men qua men would be inconsistent with the use of the phrase "principal purpose", which necessarily involved a possible plurality of purposes and activities. The expression "principal purpose" related to the category of persons whose needs were catered for and not the activities of the club.

Per Denham J. (dissenting): The fact that Portmarnock Golf Club catered for women was a relevant factor in analysing whether the club catered only for the needs of men.

Per Fennelly J. (dissenting): Portmarnock Golf Club's principal purpose was the playing of golf and in this regard it catered for the needs of its members, who were male golfers. However, the fact that Portmarnock Golf Club also catered extensively for female golfers meant that it did not cater "only" for the golfing needs of its members and therefore the club could not come within the exception in s. 9.

3. That the use of the word "only" in s. 9 of the Act of 2000 qualified the verb "cater", and that catering for the needs of the relevant group was to be the principal purpose, an adjective which permitted of and indeed assumed the existence of other purposes. Having a principal purpose was not inconsistent with having other additional purposes. Portmarnock Golf Club's principal purpose was not to play golf, but to provide facilities for the playing of golf by gentlemen. This did not prevent the club from having other ancillary purposes, but, by reason of the use of the word "only" these had to be linked to the playing of golf by men.

4. That the ordinary and literal meaning of the word "needs" was broad enough to embrace social, cultural and sporting needs, as well as more basic needs for things such as air, food and water. The use of the word "needs" in s. 9 meant a subjective requirement in the broadest sense, which might include a social or cultural requirement. To interpret the word more narrowly would be inconsistent with the constitutional freedom of a person to associate with others of his choice for any purpose agreed upon by him and them.

National Union of Railwaymen and Others v. Sullivan and Others [1947] I.R. 77 followed.

Per Denham J., (dissenting): The clear meaning of the word "needs" in general use referred to a necessity, of what must be, or an inexorable requirement. It did not mean simply a choice. The exceptions in s. 9 should be construed narrowly rather than so broadly as to negate the rules set down in s. 8.

Per Fennelly J., (dissenting): The word "needs" may include subjective, including social or cultural requirements. However, to interpret s. 9 in the manner adopted by the High Court and the majority of the court would empty s. 8 of almost all meaning, as virtually any club whose membership was limited to one of the categories of person set out in s. 9(1) would come within the exception of s. 9.

5. (Fennelly and Denham JJ. concurring): That the trial judge had erred in embarking, without necessity, on comments on Portmarnock Golf Club's claim that the Act of 2000 was unconstitutional, when his decision on the interpretation of the Act rendered the constitutional point moot.

Quaere per Hardiman J.: Whether a tension existed between the use of the words "principal", which implied a plurality of objects and the word "only", implying singularity, but that if so, this was a defect in the Act of 2000 which created an ambiguity which should enure in favour of the constitutional right to associate.

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MD v Ireland & A. Gen (2012)

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Facts The appellant appealed from a decision of the High Court (Dunne J.) which upheld the constitutionality of s. 3(1) and s. 5 of the Criminal Law (Sexual Offences) Act, 2006. The appellant was charged with having sexual intercourse and committing a sexual act of buggery with a female person under the age of seventeen years, contrary to s. 3(1) of the Act of 2006. At the time of the alleged offences the appellant was 15 years of age and the complainant, who was not charged with any offence was 14 years old. By virtue of s. 5 of the 2006 Act, a female under the age of 17 years does not commit an offence contrary to s. 3(1) by reason only of engaging in an act of sexual intercourse. The appellant sought a declaration that s. 3(1) and s. 5 of the Act of 2006 were repugnant to the Constitution in that they discriminated against the appellant on the basis of gender, contrary to Article 40.1 of the Constitution. The appellant also submitted that s. 5 breached his right to trial in due course of law provided by Article 38.1 of the Constitution as no penalty would be imposed on a female under the age of 17 years. It was further submitted that s. 3(1) breached Articles 6, 8 and 14 of the European Convention on Human Rights. Dunne J. in the High Court determined that on the face of it there was no apparent Constitutional or Convention frailty in the provisions of s. 3. However, Dunne J. determined that s. 5 was discriminatory but having regard to the fact that the section only provided immunity in respect of the one area of sexual activity that can result in pregnancy, she decided that the discrimination was legitimated by being founded on differences in capacity, physical or moral or differences of social function of men and women in a manner not invidious, arbitrary or capricious. Dunne J. also held that the European Convention on Human Rights did not bring the matter any further than Article 40.1 of the Constitution and consequently she rejected the appellant's submission that the provisions breached the Convention. The appellant submitted herein that the learned High Court judge erred in law in the findings she made.

Held by Supreme Court: Denham C.J. (Murray, Hardiman, Fennelly, Macken JJ) in dismissing the appeal: That the decision of the learned High Court judge regarding the constitutionality of s. 3 of the Act of 2006 was correct. By virtue of s. 3 a person of either sex and of any age may be guilty of an offence, if he or she engages in a sexual act with a child under the age of seventeen or attempts to do so and does not have a reasonable and honest belief that the child has attained the age of 17 years. However, s. 5 provides an exemption for a female child under the age of 17 years who engages in sexual intercourse. Article 40.1 of the Constitution recognises that perfectly equal treatment is not always achievable and it permits the State, in its enactments to have "due regard to differences of capacity, physical and moral, and of social function". The State justified s. 5 of the Act of 2006 by a social policy of protecting young girls from pregnancy, by creating a law governing under age sexual intercourse. The danger of pregnancy for the teenage girl was an objective which the Oireachtas was entitled to regard as relating to 'differences of capacity, physical and moral and of social function', as provided for in Article 40.1 of the Constitution and consequently s. 5 was not repugnant to the Constitution. Furthermore, the appellant did not formulate any claim based on the European Convention on Human Rights provisions capable of being entertained by this Court.

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D (J) v Residential Institutions Redress Committee (2009)

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Facts: the applicant's application for redress was refused on the ground that she had not been a child within the meaning of section 1(1) of the Act 2002 when she had been placed in an institution. She was granted leave to seek judicial review of the decision of the respondent on the basis, inter alia, that the definition of "child" contained in the Act of 2002 was contrary to Article 40.1 of the Constitution by being discriminatory in that it established differences of treatment between people who were under 21 on the date she entered the institution, all of whom should be treated equally. She also obtained leave on the ground that the legislation was not in conformance with the obligations of the State pursuant to the combined basis of Articles 8 and 14 of the European Convention on Human Rights in that the definition of "child" constituted discrimination. The respondent appealed the decision of the High Court to grant the applicant a declaration that the Act of 2002 was unconstitutional to the Supreme Court. The applicant cross-appealed the decision of the High Court to dismiss the application for a declaration, pursuant to section 5 of the European Convention on Human Rights Act 2003 that section 1 of the Act of 2002 offended the provisions of the European Convention on Human Rights.

Held by the Supreme Court (Murray CJ) in allowing the appeal and dismissing the application for judicial review based on the allegation that the Act of 2002 was unconstitutional that any person wishing to challenge the compatibility of a provision of an Act of the Oireachtas with the Constitution had to overcome and rebut the principle of the presumption of constitutionality which operated in favour of the impugned provision. Almost all legislation addressed to the regulation of society resorted to some form of classification and age was frequently used as a classification of inclusion or exclusion for various legislative purposes. There was nothing in such classification that was invidious, unfair or discriminatory. In deciding, as a matter of policy, to establish a special scheme of redress for abused children, the Oireachtas necessarily had to define the scope and limits of its application and the choice of an age limit of 18 constituted a legitimate legislative designation of the persons who naturally and normally have been described as children.

Held by the Supreme Court (Fennelly J) in dismissing the cross-appeal of the applicant and the application for a declaration pursuant to section 5 of the Act of 2003 that the definition of "child" in section 1 of the Act of 2002 was compatible with the obligations of the State pursuant to the European Convention on Human Rights. The alleged abuse had occurred before the entry into force of the Act of 2003, which did not apply retrospectively. There was a clear distinction between the obligations of the State by its laws to protect Convention rights and the voluntary enactment by the State of a scheme for redress for abuse suffered in the past. In the first case, the State was bound to provide protection for victims of criminal infringement of Convention rights. The State, in enacting the Act of 2002 was not indirectly attracting to itself Convention obligations derived from the actions of other persons committed in the past.