JUDGMENT of Mr. Justice Geoghegan delivered 3rd day of November 2009
This appeal relates to two separate sets of proceedings and categories of litigation involving on the one hand the Equality Authority and on the other hand Portmarnock Golf Club. The personal names in the titles of the two respective sets of proceedings are simply names of officers or trustees of Portmarnock Golf Club. In terms of relevant parties, I will henceforth be referring for simplicity to the Equality Authority, “the Club” and to a limited extent, the Attorney General. The two sets of proceedings arise in the following context.
By a civil summons in the District Court, the Equality Authority, pursuant to the provisions of section 8(3) of the Equal Status Act, 2000 made a claim for a determination by the District Court that the club was a “discriminating club” for the purposes of that section and for an order suspending the club’s certificate of registration under the Registration of Clubs Acts, 1904 to 1999 which certificate enabled the club, subject to the Acts, to sell intoxicating liquor. The application duly came on for hearing in the District Court before Judge Mary Collins and she delivered a judgment on the 20th February, 2004. The learned District Court judge had the benefit of written and oral submissions and she was addressed in court by Mr. Donal O’Donnell, S.C., counsel for the club. It is clear from the terms of her judgment that she gave consideration to the submissions but, having done so, she came to the conclusion that she should make the determination sought. I will be explaining the issues which she had to consider later on in my judgment. At this stage, it is sufficient to state that the club was dissatisfied with the judge’s decision and appealed it by way of Case Stated to the High Court.
The appeal came on for hearing in the High Court before O’Higgins J. who held that the learned District Court judge was incorrect in her interpretation of the relevant provisions of the Act. He was of the view that, whilst, if section 8 stood alone, the club would be a “discriminating club”, “it was not a “discriminating club” having regard to statutory exemptions contained in section 9(1)(a) of the Act. The relevant parts of these sections are helpfully set out in the judgment of Denham J.
In addition to appealing the decision of the District Court by way of Case Stated, the club in the names of its two trustees instituted original High Court proceedings by way of plenary summons seeking various declarations as to the alleged correct interpretation of the relevant provisions of sections 8 and 9 of the Act of 2000 and seeking, in the event that the High Court upheld the view of the District Court, a declaration that the provisions of sections 8, 9 and 10 of the Equal Status Act, 2000 were invalid having regard to four different specified provisions of the Constitution. The summons also sought damages for breach of statutory duty and breach of the plaintiffs’ constitutional rights.
Sensibly, the two sets of High Court proceedings were brought on for hearing together before O’Higgins J. The learned High Court judge essentially dealt with two issues. The first was whether the determination of the District Court was appropriate having regard to the exemptions contained in section 9(1)(a) of the Equal Status Act, 2000, a matter which I will be fully explaining later. The second was whether if the determination was correct, the relevant sections were unconstitutional. The judge decided that the District Court determination was wrong and that the club fell within the above mentioned exemption. That being so, the question of the constitutionality of the relevant provisions did not arise. Nevertheless, O’Higgins J. went on to express the view that the sections were in fact valid having regard to the Constitution. In taking this latter step which was probably well intentioned with the idea that the Supreme Court on an appeal could deal with the constitutionality issue if it considered that the decision of the High Court on the other issue was incorrect, it must be said that that procedure was contrary to the established jurisprudence of this court. At any rate, it is not entirely clear what the exact status is of that part of the judgment in which the learned High Court judge deals with the constitutionality issue, given that the order drawn up seems only to refer to the appeal by way of Case Stated.
I do not intend to express any views on either the procedural or substantive aspects of the judgment dealing with the constitutionality issue. The court has already indicated to the parties that before considering those issues, if they should arise it will first determine, what I might describe, as the issues of statutory interpretation.
In this connection, I should expressly mention that the Equality Authority has appealed to this court from the decision on the statutory interpretation issue and the club has appealed the purported decision on the constitutionality issue.
Before dealing specifically with the statutory issue which is the only issue I have to consider, there are some further introductory remarks which I think it appropriate to make. The method by which the Oireachtas has chosen to encourage (and in reality to force) “discriminating clubs” to abandon the “discrimination” is not merely unusual but quite extraordinary. The sanction is the future prohibition on the sale of intoxicating liquor even though that trade had nothing whatsoever to do with any alleged “discrimination”. Furthermore, the effect of the provision is that upon a lawful determination of the kind made by the District Court in this case, the “discriminating” club may continue for ever “discriminating” if it is satisfied to lose its club registration and, therefore, the authority to sell liquor. In the case of ordinary trading with the public and not in an internal club context “discrimination” can actually be prohibited by order. But the Act provides for the unusual indirect means of enforcement in relation to “discrimination” within the internal arrangements of a club. Although the solution arrived at by the Oireachtas is undoubtedly unusual, it is not difficult to discern the reason for its adoption. The elaborate draftsmanship of sections 8, 9 and 10 with all their qualifications and exemptions etc. is clearly designed to avoid unconstitutionality having regard to the well established constitutionally protected right to freedom of association. I think it obvious that the Oireachtas was nervous and in my view, rightly nervous of infringing that right. There is, therefore, an element of what I might describe as “tiptoeing” in the draftsmanship which in turn has resulted in real problems of interpretation.
The freedom of association recognised as an inherent right by the Constitution, though not, of course, an unqualified right, is highly relevant to the interpretation of these sections quite apart from its relevance to arguments on the constitutionality of the provisions. The club’s written submissions (and followed up in the oral submissions) referred to the wholly different manner of dealing with services to the public on the one hand and “discrimination” within the internal organisation of registered clubs on the other hand. I fully agree with the observation in the written submissions which reads as follows:
“This change of regime, it is submitted, can only be explained as a clear reflection of an awareness that in respect of the membership of private clubs, the constitutional freedom of association is directly engaged. Accordingly, it is submitted that it is particularly appropriate to interpret sections 8, 9 and 10 on the basis that they are designed to seek to avoid unjustified intrusion on constitutional rights in general and the freedom of association in particular.”
In a footnote the written submissions refer to NUJ v. Sisk  2 I.R. 184 at 195 in which McCarthy J. in the Supreme Court made the following observation:
“In my view, the right of free association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it.”
That quote from McCarthy J. seems to me to be certainly relevant to this case and the difficulties of interpretation involved.
For reasons which I will be elaborating upon, I have come to the firm view that the judgment and for the most part the reasoning of O’Higgins J. in the High Court was correct and that the appeal of the Equality Authority should be dismissed.
To explain why I have formed this view, it is necessary that I refer briefly to the relevant statutory provisions. For a more detailed treatment, resort can be had to the High Court judgment.
A treatment of how the Equal Status Act, 2000 affects clubs must necessarily begin with a reference to two statutory definitions contained in section 2 of the Act. These are “discriminate” and “discriminatory grounds”. “Discriminate” is defined by reference to a meaning given to it in sections 3(1) or 4(1) of the Act. Those subsections are in turn basically uncontroversial in the meaning they ascribe to “discriminate” and nothing would seem to turn on them for the purposes of the issues in this case. It is necessary, however, to explain in more detail what is meant by “discriminatory grounds”. These are set out in section 3(2) of the Act. They are, in effect, grounds based on gender, marital status, family status, sexual orientation, religion, age, disability, race, membership of the Traveller community and what is described as “victimisation ground” which is essentially an unfair procedures ground. Section 5 deals with disposal of goods and the provision of services. Section 6 deals with the disposal of premises and the provision of accommodation and section 7 with educational establishments. There are then enforcement provisions contained in the Act for the most part of a conventional nature ensuring compliance with those sections or compensating for lack of compliance.
As already mentioned this case relates to “discriminating clubs” which for the most part are dealt with in sections 8, 9 and 10 of the Act and provide for a unique sanctions regime i.e. the removal of registration under the Registration of Clubs Acts, 1904 to 1999. I would, however, reiterate that in so far as relations with the public are concerned i.e. persons other than the club’s own members, the normal remedies apply. In embarking on curbs on private associations not involving the public in general, a person or body doing so is immediately treading on dangerous constitutional territory even though the freedom of association recognised and upheld by the Constitution can never be absolute. As I have already surmised, it seems reasonably clear that this is the reason why a different regime is adopted for the purposes of sections 8, 9 and 10.
The scheme of those sections is as follows. Section 8 provides that a registered club shall be considered to be a “discriminating club” if it has any rule, policy or practice which discriminates against a member or an applicant for membership or if a person involved in the management of the club discriminates against a member or an applicant for membership in relation to the affairs of the club. Without prejudice to the generality of those provisions certain acts are to be regarded as “evidence that the club is a discriminating club”. These are:
(i) refusing to admit a person to membership;
(ii) providing different terms and conditions of membership for members or applicants for membership;
(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 section then goes on to provide for an application to the District Court of the kind that was brought in this case seeking a determination that the club is a “discriminating club”. If the court makes such a determination and it is the first such order, the court has to include in the order a provision suspending the certificate of registration of the club for a period not exceeding thirty days. Where the court however makes any subsequent such order, the club by virtue of section 10 of the Act is effectively precluded from claiming club registration until the discrimination has been removed.
If section 8 stood alone the decision of the District Court in this case would have been correct and the decision of the High Court reversing it erroneous. But section 8 does not stand alone. Section 9 contains important exemptions and indeed they are of such importance that for a proper understanding of the Act’s regime relating to “discriminating clubs”, it is essential to read and consider the two sections together. There is one point of differentiation, however, which in my view is relevant in the interpretation of section 9 as distinct from the interpretation of section 8. It seems reasonable to assume that an exempting section such as section 9 was not dealing with purely theoretical and potentially non-existent clubs but was concerned with actual categories of clubs which did exist within the State. This seems to have been a point to which the learned High Court judge rightly attached considerable importance. I will return to it in due course. First of all, I will outline the provisions of section 9.
Subsection (1)(a) of that section is the key provision as far as the issues in this case are concerned. It reads as follows:
It is the opening words of this sub-paragraph which give rise to the difficulty of interpretation. The learned District Court judge made the determination that the club was a “discriminating club” based on the second last paragraph of her judgment which neatly encapsulates the view she took. This paragraph reads as follows:
“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.”
This approach is adopted by the Equality Authority but is strongly disputed by counsel for the club. A fundamental point of disagreement is that the club argues that the expression “principal purpose” relates to the category of persons whose needs are catered for and not to the activities of the club. I have come to the conclusion that this latter approach is correct. It has been rightly submitted by both sides that analysis of the words and their meaning within the context in which they are used is of vital importance. Such analysis is particularly material if it is applied to the entire phrase “its principal purpose is to cater only for the needs of” but to that end separate consideration of the meaning of the words “principal”, “purpose”, “cater”, “only” and above all “needs” is helpful. I am satisfied, for instance, that when read in its context, “needs” certainly does not mean “special necessary requirements” in some objective sense. It is of some interest that in the revised 10th edition of the Concise Oxford Dictionary published in 2001 “need” as a verb is somewhat differently defined than “need” as a noun. “Need” as a verb is defined (inter alia) as “require (something) because it is essential or very important rather than just desirable” whereas “need” as a noun is defined as “1 circumstances in which something is necessary; necessity. 2. A thing that is wanted or required.” Put simply “need” as a noun may, depending on context, mean an essential objective requirement or simply a subjective requirement in the broadest sense which may include a social or cultural requirement. I do not believe that “needs” in section 9 was ever intended to mean more than requirements in that second sense. Indeed I link this interpretation with the word “cater”. One does not normally speak of catering for necessities. One might speak of providing for necessities. On the other hand “cater” would be the more usual word where simple requirements are involved. .
Crucially, however, I believe that the entire phrase must be considered as it stands rather than by reference, except to a limited extent, to the separate words. Within the interpretation that I am satisfied is correct, the principal purpose of the club is to cater for the golfing needs of persons of a particular gender only i.e. males. If the argument of the Equality Authority is correct it is virtually impossible to envisage what kind of clubs of a single gender the Oireachtas had in mind for exemption, a point to which O’Higgins J. correctly attached considerable importance. Even if it is accepted that a so-called “gentlemen’s club” which did not permit of female members is exempt under section 9 whilst a sports club of some kind of single gender is not, extraordinary anomalies arise. A gentlemen’s club that had a squash court facility would be exempt but a male only squash club would not. That this is unlikely to have been the intention of the Oireachtas is highlighted when one comes to consider the other exemptions. The example was considered in the High Court of a club for Bulgarians only. The Equality Authority was and is forced to argue that a football club for Bulgarians only would be a discriminating club whereas a club for Bulgarians only but with no particular specified activity other than sociability would be exempt.
It is clear from the judgment of the High Court that as the case was argued before that court, a different approach to exemption from the provisions of section 8 was adopted by counsel for the Attorney General than that adopted by counsel for the Equality Authority. Referring to the Attorney General’s submissions, the learned High Court judge said the following in his judgment:
“It is conceded by him that a gentlemen’s club or ladies club – and not only those confined to those whose objects had a logical connection with male or female could be exempt from the provisions of section 8 of the Act. It is difficult to see how a ladies club or a gentlemen’s club might be exempt from the provisions of section 8 of the Act while a gentleman’s golf club or ladies golf club cannot avail of such exemptions.”
The Equality Authority argued in the High Court and before this court that there must be a logical connection between the objects of the club claiming to be exempt and the exclusive gender of the membership. But the learned High Court judge rightly considered it “significant that the court was not provided with any example of an existing club of that type.” Farfetched theoretical or even mythical examples were offered such as a club for men who had a perceived grievance concerning how justice was administered in the family courts and who wished to give mutual support to one another in some practical fashion such as babysitting were put forward. To my mind, the learned High Court judge if anything was extraordinarily tolerant in his assessment of these examples. It is quite absurd to suggest that the gender exception in section 9 was intended by the Oireachtas to cover only farfetched theoretical examples of clubs that did not even exist, to say nothing of the fact that even if such clubs did exist it would be highly unlikely that they would be “registered” clubs with the consequent right to have a bar supplying liquor to each other and their visitors. I have already made clear my view that the section 9 exemptions were intended for real existing concrete situations.
It is also clear from the judgment of the High Court that counsel for the Equality Authority in argument before that court conceded that in the case of clubs whose principal purpose was to cater only for the needs of persons of a particular nationality or ethnic or national origin the word “needs” would have to be construed broadly so as to include the cultural needs of such persons. The learned High Court judge, however, rightly took the view that it would be wrong to apply a wider definition of “needs” to some exemptions than to others.
The club, in its submissions, points out also a factor that is not without significance. Section 9(1)(a) of the Act does not include all the discriminatory grounds set out in section 3(2). Omitted are “race” and “colour”. It follows that a club established for the principal purpose of catering only for the needs of persons of a particular race or colour would not be entitled to the exemption under section 9(1) which would mean it would not be able to refuse membership to other persons.
I have not up to now mentioned the fact that women may play golf in Portmarnock club by paying a green fee and may use the bar facilities etc. In that instance, however, the club is simply providing external facilities. Indeed, it means that they are not discriminating in the provision of services as such. Entitlements of female non-members to play golf in Portmarnock is not a point that is either helpful in argument to the club or to the Equality Authority on the points at issue. It is neutral evidence.
What is of significance, however, is that the exemption under section 9 does not apply to race or colour. This to some extent reinforces the argument of the club that the exemption is intended to be widely interpreted in relation to the other grounds of discrimination under section 8.
Paragraph 25 of the written submissions of the club to this court summarises the position correctly. The paragraph is worth quoting and reads as follows:
“The club’s submission as to the proper interpretation of sections 8 and 9 makes full sense against this factual background. Section 9(1)(a) is a total exception from the requirements of section 8(2)(a)(i) and 8(2)(b)(i), save that a club can neither (A) choose or refuse members on the basis of race or colour nor (B) choose positively to exclude members on the basis of a proscribed ground. However it is permissible for a club to include on a proscribed ground (other than race or colour) even if that incidentally results in the exclusion of a group defined by a proscribed ground.”
As the learned High Court judge pointed out the exemption becomes almost meaningless if the Equality Authority’s interpretation is correct. On the other hand, if the Equality Authority’s interpretation is not correct, that does not mean that gender discrimination may not render a club a “discriminating club” within the meaning of section 8 and not exempt by section 9. Persons admitted to membership of a club may be discriminated within such club by virtue of one of the prohibited grounds. As counsel for the Portmarnock club point out, for instance it is well-known that there may be what they describe as “dual structure” golf clubs with separate rules for men and women as to the days and times for playing etc. Section 9 would not be relevant to this type of discrimination as it applies only to single structure clubs.
The learned District Court judge, in her judgment, referred to the traditional principles of statutory interpretation as set out in the judgment of Blayney J. in Howard v. The Commissioner of Public Works  I I.R. 309. Even when adopting the traditional literal interpretation, however, a court does not do so in a vacuum. If there are problems of interpretation it must always bear in mind, context. Like the learned High Court judge and with respect to the learned District Court judge, I find the arguments of the club more convincing for the reasons which I have indicated and I would, therefore, dismiss the appeal.