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Judgment
Title:
Equality Authority -v- Portmarnock Golf Club & ors; Cuddy & anor -v- Equality Authority & ors
Neutral Citation:
[2009] IESC 73
Supreme Court Record Number:
296 & 312/05
High Court Record Number:
2004 1456 SS
Date of Delivery:
11/03/2009
Court:
Supreme Court
Composition of Court:
Denham J., Hardiman J., Geoghegan J., Fennelly J., Macken J.
Judgment by:
Denham J.
Status:
Approved
Result:
Dismiss
Judgments by
Link to Judgment
Concurring
Hardiman J.
Macken J.
Geoghegan J.
Macken J.
Denham J.
Fennelly J.



THE SUPREME COURT
[Appeal No: 296/2005]
      Denham J.
      Hardiman J.
      Geoghegan J.
      Fennelly J.
      Macken J.

      In the matter of s.2 of the Summary Jurisdiction Act 1857 as amended by s.51 of the Courts (Supplemental Provisions) Act 1961

      Between/

      The Equality Authority
Plaintiff/Appellant
and

Portmarnock Golf Club, Daniel Lynch, Colin Harnett, T.M. Healy, Joseph Leyden, Joseph McAleece, W.P. Twamley and R.C. Cuddy

Defendants/Respondents
and




Between/

Robert C. Cuddy and David Keane
Plaintiffs/Appellants
and

The Equality Authority, Ireland

and the Attorney General

Defendants/Respondents
      Judgment delivered the 3rd day of November, 2009 by Denham J.

      1. In the High Court two cases, which arise out of the same set of facts, were taken together. There were two principal issues: (i) the interpretation of sections of the Equal Status Act, 2000, and (ii) the constitutionality of the Equal Status Act, 2000.

      2. This Court decided to proceed first on the issue of statutory interpretation, which is essentially the issue arising on the case stated from Mary Collins, Judge of the District Court. However, because the issues are somewhat interlinked, while the State is not a party to the case stated, the Court indicated that it would hear any submissions which the State wished to make on the interpretation of the Equal Status Act, 2000, referred to as "the Act of 2000".

      Case Stated
      3. The case stated arose pursuant to s.2 of the Summary Jurisdiction Act 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961. At sittings of the District Court, at Court 54, Richmond Hospital, North Brunswick Street, Dublin 7, on the 28th November, 2003, and at Court 40, Dolphin House, Dublin 2, on the 19th January, 2004, Portmarnock Golf Club, Daniel Lynch, Colin Harnett, T.M. Healy, Joseph Leyden, Joseph McAleece, W.P. Twamley and R.C. Cuddy, the defendants/respondents, and hereinafter referred to as "Portmarnock", appeared to answer a complaint by The Equality Authority, the plaintiff, and hereinafter referred to as "the Authority".

      4. The complaint was made pursuant to s.8 of the Act of 2000. The Authority sought a determination of the court that Portmarnock is a discriminatory club for the purpose of s.8 of the Act of 2000, and for an order suspending the certificate of registration of the Club for a period not exceeding thirty days.

      5. Evidence was given to the District Court on behalf of Portmarnock by the Secretary Manager of the Club and the Captain of the Club. Facts were proved, admitted or agreed, and held by the District Court, as follows.

      Facts
      6. Portmarnock, founded in 1894, is one of the oldest golf clubs in Ireland and is affiliated to the Golfing Union of Ireland, the body which regulates men's golf in Ireland.

      7. Portmarnock has for many years been the holder of a certificate of registration under the Registration of Clubs Act, 1904 to 1999, referred to herein as a "drinks licence", and during that time has not been the subject of complaint or prosecution by An Garda Síochána in respect of the provision of intoxicating liquor on its premises.

      8. Evidence was given that there were 662 members and 625 associate members of Portmarnock, all of whom are men. Under its rules, since it was established in 1894, Portmarnock consists of members and associate members who are "gentlemen properly elected" and who conform with the rules of amateur status prescribed by the Royal and Ancient Golf Club of St. Andrews.

      9. Women may play golf at Portmarnock either with or without a member on identical terms to those applicable to all non-members. Women may play the course at Portmarnock on seven days a week on payment of green fees at the times permitted for such play. There are at least three competitions played at Portmarnock each year in which women take part as guests. Portmarnock provides changing facilities and locker rooms specifically for women as part of the clubhouse complex. Women are entitled to access a bar and restaurant and other clubhouse facilities on an equal basis to men, with the exception of the men's locker rooms and toilets. A score card is available to women golfers playing the course and Portmarnock 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.

      10. On the 17th April, 2003 the Chief Executive of the Authority decided to initiate proceedings against Portmarnock. That decision was made pursuant to a board minute of the 6th November, 2001.

      District Court
      11. On the 20th February, 2004, the District Court held that Portmarnock is a discriminating club within the meaning of s.8 of the Act of 2000.

      12. On the 18th May, 2004, the District Court made an order under s.8(7)(a) of the Act of 2000 suspending the certificate of registration of Portmarnock for a period of seven days.

      13. The opinion of the High Court was sought as to whether the District Court was correct in law in making the above stated determinations.

      Plenary Summons
      14. The second set of proceedings were brought by Robert C. Cuddy and David Keane suing in their capacity as trustees of Portmarnock, and hereinafter referred to as "the trustees". These proceedings were commenced by way of plenary summons. The Authority, Ireland and the Attorney General were named as defendants.

      15. In the second case the trustees sought:-


        (a) A declaration that Portmarnock is not a discriminating club within the meaning of that term in s.8 of the Act of 2000.

        (b) Further, or in the alternative, a declaration that by reason of the provisions of s.9(1)(a) of the Act of 2000 Portmarnock shall not be considered to be a "discriminating club" for the purposes of s.8 of the Act of 2000.

        (c) A declaration that it is not open to the Authority to make any application to the District Court pursuant to s.8(3) of the Act of 2000 requesting that the District Court make a determination as to whether Portmarnock is a "discriminating club" within the meaning of that term in s.8 of the Act of 2000.

        (d) An order restraining the Authority, its servants or agents, from making any application to the District Court pursuant to s.8(3) of the Act of 2000 requesting that the District Court make a determination as to whether Portmarnock is a "discriminating club" within the meaning of that term in s.8 of the Act of 2000.

        (e) Further, or in the alternative, if the provisions of s.9(1)(a) of the Act of 2000 do not, on their proper construction, apply to Portmarnock, and/or if Portmarnock is a "discriminating club" for the purposes of s.8 of the Act of 2000, the provisions of ss.8, 9 and 10 of the Act of 2000 are invalid having regard to the provisions of Articles 40.1, 40.3, 40.6.1 and 43 of the Constitution of Ireland.

        (f) Damages for breach of statutory duty, for breach of Portmarnock's constitutional rights; interest and costs were also sought.



      The High Court
      16. The High Court (O'Higgins J.) held that the two proceedings before the High Court fell to be decided on two grounds. The first ground was based on the interpretation of ss.8 and 9 of the Act of 2000. The second related to the constitutionality of sections of the Act of 2000. The learned High Court judge dealt first with the interpretation of the relevant sections of the Act of 2000 and then considered arguments on the issue of the constitutionality of the legislation.

      17. On the issue of the interpretation of the Act of 2000 O'Higgins J. concluded:-


        "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 (sic) provided for by s.9."

      The High Court declared that by reason of the provisions of s.9 of the Act of 2000 Portmarnock:-

        "… shall not be considered a discriminating Club for the purposes of section 8 of the Equal Status Act 2000."

      18. The learned High Court judge then referred to the constitutional issue, stating:-

        "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 these 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."

      The learned trial judge then proceeded to consider and make comments on the constitutional issues.

      Notice of Appeal
      19. The Authority filed a notice of appeal with 28 grounds of appeal. Reference was made to ss.8 and 9 of the Act of 2000 and it was claimed that the learned trial judge erred in his interpretation and application of these sections.

      20. The trustees also filed an appeal against the judgment of the learned trial judge. Their twenty one grounds of appeal included the grounds that:- (a) the learned High Court judge erred in proceeding to deliver a judgment setting out his "comments" on the issues concerning the constitutionality of ss.8, 9 and 10 of the Act of 2000 notwithstanding his conclusions on the correct interpretation of those provisions on foot of the case stated; (b) the learned High Court judge erred in proceeding to deliver judgment on the constitutional issues and arguments when it was not necessary for him to do so having regard to his conclusions on the interpretation issues; (c) the High Court erred in proceeding to deliver judgment on the constitutional issues when the issues between the parties could and ought to have been determined by resolution of issues of law, including the interpretation of the Act of 2000, other than the constitutional law issues.

      Issue
      21. This Court decided to consider first the issue of the construction of the Act of 2000. Counsel acting on behalf of the parties were requested to address only the issue of the interpretation of the statute. Therefore, the issue before the Court is the interpretation of the relevant sections of the Act of 2000.

      Law
      22. The Act of 2000 is described in the long title as an Act to promote equality and to 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, amongst other matters. Section 3 defines discrimination for the purpose of the Act. Section 4 covers discrimination on the ground of disability. Section 5(1) refers to the disposal of goods and the provision of services, prohibiting discrimination in disposing of goods to the public generally or a section of the public or in providing a service. While discrimination in the disposal of goods and services to the public is prohibited in general, there are exceptions. Section 5(2)(a) provides that s.5(1) does not apply in respect of a service offered to its members by a club in respect of which s.8 applies. Also section 5(2)(g) provides that s.5(1) does not apply in respect of differences in the treatment of persons on the gender ground where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender. Clearly this refers to services such as single sex changing rooms. The specialist nature of the exceptions is seen in s.5(2)(h) which provides that s.5(1) does not apply in respect of:-


        "differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests."

      This refers to the special needs of groups, to disadvantaged groups, where the discrimination is reasonably necessary. For example, where the State provides language classes for foreign nationals, nationals are excluded. Similarly, s.5(2)(i) states that s.5(1) does not apply in respect of:-

        "differences in the treatment of persons on the gender, age or disability ground or on the ground of race, reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment."

      This discrimination is allowed on the grounds, inter alia, of gender, where it is reasonably required on the basis of authenticity, etc. in connection with a dramatic performance or other entertainment. This brings to mind an entertainment traditionally provide by a gender, prohibiting another - reasonably - because of tradition, authenticity or custom. Perhaps sumo wrestling by gentlemen and belly dancing by ladies might be somewhat frivolous illustrations. However, s.5 does not govern the issue in this case. Although, perhaps it sheds some light on the exclusions from the rule against discrimination in that they are limited, they protect disadvantaged or special groups, and they uphold ethnic and traditional customs. The section is not applicable to the facts of this case which are expressly governed by the words of section 8 and section 9.

      Section 6 prohibits discrimination in the disposal of any estate or interest in premises, the termination of any tenancy or other interests in premises, and the provision of accommodation and related services. Section 7 relates to discrimination in education and educational establishments.

      23. Section 8 is at the core of this case. This section relates to discriminating clubs and provides for intervention when the club holds a drink licence, i.e. is registered under the Registration of Club Acts. The section does not apply to a club without a drinks licence. Thus clubs without a drinks licence are not covered by the section and consequently may have any type of membership it wishes. However, a club which has the privilege of a licence may not discriminate if they wish to keep their licence.

      Section 8
      24. Section 8 provides:-

            "(1) In this section—

            “certificate of registration”, in relation to a club, means the certificate of registration of the club under the Registration of Clubs Acts, 1904 to 1999; “club” means a club that has applied for or holds a certificate of registration.

            (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) …

            (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;

            (iii) …

            (iv) …

            (3) Any person, including the Authority … may, on application to the District Court … request that the Court make a determination as to whether a club is a discriminating club.

            (4) …

            (5) …

            (6) After considering the representations, the [District] Court shall—

            (a) make an order in writing setting out its determination as to whether or not the club is a discriminating club, and

            (b) cause a copy of the order to be transmitted to the Minister.

            (7) (a) Where—

            (i) the [District] Court makes an order under subsection (6)(a) setting out its determination that a club is a discriminating club, and

            (ii) the order is the first such order in relation to the club,

            the [District] Court shall include in the order a provision suspending the certificate of registration of the club for a period not exceeding 30 days.

            (8) (Provision for appeal to Circuit Court)

            (9) (Provision for period of suspension of certificate of registration)

            (10) …

            (11) An order under this section suspending the certificate of registration of a club shall, while it is in force, have effect for the purposes of the Registration of Clubs Acts, 1904 to 1999, as if no certificate under those Acts had been granted in respect of the club for the period of suspension.

            …"

      Section 9
      25. Section 9 makes provision for non-discriminating clubs. It provides:-

        "(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, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin,

        (ii) persons who are members of the Traveller community, or

        (iii) persons who have no religious belief,

        it refuses membership to other persons,

        [Emphasis added]

        (b) it confines access to a membership benefit or privilege to members within the category of a particular gender or age, where—

        (i) it is not practicable for members outside the category to enjoy the benefit or privilege at the same time as members within the category, and

        (ii) arrangements have been made by the club which offer the same or a reasonably equivalent benefit or privilege both to members within the category and to members outside the category,

        [Emphasis added]

        (c) it has different types of membership, access to which is not based on any discriminatory ground,

        (d) for the purpose of reducing or eliminating the effect of any rule or practice of the club (whether adopted before or after the commencement of this section) restricting access to particular types of membership to persons of a particular gender it offers concessionary rates, fees or membership arrangements to persons who were or are disadvantaged by any such rule or practice, or

        (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."



      Portmarnock's Membership
      26. The issue in this case arises primarily because of rule 3 of Portmarnock's rules, which provides that Portmarnock shall consist of members and associate members who shall be "gentlemen properly elected". 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. Portmarnock provides changing facilities and locker rooms for women, and women are entitled to access a bar and restaurant and all other Clubhouse facilities available at Portmarnock. A ladies' scorecard is available to women golfers and Portmarnock 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.

      High Court Judgment
      27. The High Court pointed out that:-


        " … 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."

      The learned trial judge stated that the question is not whether the legislation permits single gender clubs - as it does - but whether Portmarnock is one of the type of single gender clubs envisaged by section 9. The High Court referred to Portmarnock's argument that a correct interpretation of the Act of 2000 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 Act. It was submitted that while s.8 targeted gender discrimination, amongst other forms of discrimination, s.9 provided for exceptions. The learned High Court judge stated:-

        "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."

      The learned trial judge held that:-

        "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 of 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 a 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."

      Rules of Portmarnock Golf Club
      28. The rules of Portmarnock in relation to membership provide:-


        "3. The Club shall consist of Members and Associate Members, as defined below, who shall be gentlemen properly elected and who shall conform with the Rules of Amateur Status, for the time being, prescribed by The Royal and Ancient Golf Club of St Andrews."

      In other words, Portmarnock confines its membership to gentlemen.

      29. The issue as to whether Portmarnock is a discriminating club under the statute turns on the construction of s.8 and s.9 of the Act of 2000. While section 8 prohibits discrimination, exceptions are provided for in section 9.

      Submissions
      30. Written and oral submissions were made on behalf of the parties.

      30.1 Extensive written submissions were made on behalf of the Authority. The Authority submitted that the Act of 2000 seeks to address discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community. It was submitted that the Act of 2000 was adopted in order to comply more fully with Ireland's obligations under the 1979 United Nations Convention on the Elimination of all Forms of Discrimination Against Women and to enable Ireland to ratify the 1966 United Nations Convention on the Elimination of all Forms of Racial Discrimination. While the Act of 2000 prohibits discrimination in a number of areas, these proceedings deal specifically with clubs which usually have over 150 members. The Act of 2000 established the concept of "discriminating clubs", which hold certificates of registration under the Registration of Clubs Acts 1904 to 1999 being necessary for the sale of alcohol.

      The Authority submitted that the Act of 2000 aimed to address discrimination in specific fields of Irish society. One such field was the membership of recreational and sporting clubs and in particular golf clubs, many of whom allowed women only a limited membership and others which completely barred women. It was submitted that Portmarnock prohibits women from becoming members and that it is only if Portmarnock can avail of the exemption provided by s.9 of the Act of 2000 that it can avoid the consequences of being a "discriminating club" for the purposes of the Act of 2000. It was submitted by the Authority that the meaning of the statute is plain and that Portmarnock is a discriminating club under the Act of 2000. It was submitted that a literal interpretation of the Act of 2000 which gives the words of s.8 and s.9 their ordinary meaning results in the single conclusion that Portmarnock is a discriminating club under the Act of 2000. Further, it was submitted, that even if there were a need to depart from the literal meaning of the words used it is clear that the purpose of the Act is to promote equality and prohibit discrimination. It was argued that Portmarnock discriminated against women but that it seeks to justify this under section 9. It was submitted that a purposive or teleological interpretation of the Act of 2000 can only support the interpretation which results in Portmarnock being found to be a discriminating club. Counsel submitted that Portmarnock is a discriminating club for the purposes of s.8 of the Act of 2000 and cannot avail of the exception provided by section 9.

      30.2 Extensive written submissions were made also on behalf of Portmarnock. It was pointed out that the issue raised by the appeal was the true interpretation of section 9(1)(a) of the Act of 2000. It was submitted that the interpretation of s.9 by the judgment of the High Court was impeccable. It was submitted that the clear and obvious meaning of s.9(1)(a) of the Act of 2000 is that clubs may choose to include members on discriminatory grounds (other than race and colour) even if that method of inclusion necessarily excludes a certain group or groups identifiable by reference to discriminatory grounds. However, a club is not permitted to target a particular group for exclusion from membership. Nor is a club permitted, having chosen to associate with a particular membership, to discriminate within that membership on any of the proscribed grounds, save as expressly permitted by the Act of 2000. It was submitted that this interpretation correctly identifies the mischief at which s.8 is aimed, while preserving meaningful scope to the exception drawn by section 9(1)(a).

      Mr Donal O'Donnell S.C., in oral and written submissions, advanced the legal argument for Portmarnock. Counsel submitted that the mischief to which the Act was directed was clear, it was concerned that within clubs there was discrimination; women could not use the bar, etc. Counsel submitted that s.8 does not permit different treatment of members and he proceeded to address issues of dual membership within clubs and submitted that that was the mischief to which the Act of 2000 was addressed. While this was skilfully argued, and such mischief is covered by the Act of 2000, I am of the view that the mischief to which the Act was directed was not so limited.

      Counsel drew the Court's attention to the EU context, Council Directive 2004/113/E.C. Attention was drawn to recitals, including Recital (i) which refers to respect for human rights, fundamental freedom, the rule of law and constitutional traditions. Recital 16 was raised, which refers to differences in treatment being justified only by a legitimate aim: such as single sex shelters, single voluntary bodies, freedom of association (including single sex private clubs) and the organisation of sporting events: any limitation should be appropriate and necessary in accordance with the criteria of case law from the European Court of Justice. Counsel submitted that the Act of 2000 has to be read as achieving the aims of the Directive.

      While I agree with counsel's general analysis, however, the facts of a case have to be analysed to consider whether there has been discrimination under the Act of 2000. Thus in this case the facts of Portmarnock are analysed under the requirements of section 9(1)(a). Whether or not there is similar legislation in other jurisdictions does not assist the statutory interpretation of the Act of 2000 in this State.

      Counsel also submitted that if there was an ambiguity in the Act of 2000 the Court would have to adopt the interpretation advanced on behalf of Portmarnock because it impinges less upon the right of association. As I find no ambiguity in s.9(1)(a) this issue does not arise.

      Counsel referred to the constitutional context. He submitted that if Portmarnock were not to win the case it would be a denial of the freedom of association, or a regulation of that right, which would be disproportionate to any permissible aim. Reference was made to cases on the constitutional right of association here, in the United States of America and in Canada.

      At issue before this Court at this time is the construction of s.9(1)(a) of the Act of 2000. In essence it is whether Portmarnock is a discriminating club under the legislation or not. The constitutionality of the Act of 2000 is not before the Court. Consequently, it is neither necessary nor appropriate at this time to consider the constitutionality of the legislation.

      The issue in this appeal is the construction of s.9(1)(a) of the Act of 2000. In addressing that issue I have considered carefully and borne in mind the written and oral submissions made to the Court on behalf of the parties.

      Decision
      31. The issue before the Court is the interpretation of ss.8 and 9 of the Act of 2000. Having construed the sections it is then necessary to apply that law to the facts of the case.

      Section 8
      32. Section 8 defines and refers to discriminating clubs. The section does not apply to all clubs, however it does apply to those which hold a drinks licence. The statute does not apply to a club which does not have a drinks licence. In other words the sanction put in place by the Oireachtas is the withdrawal of a drinks licence.

      33. Section 8 establishes a general rule of law that a club which holds a drinks licence may not discriminate. Under section 8(2)(a) a club is defined as being a discriminating club if it has any rule, policy or practice which discriminates against a member or an applicant for membership. Section 8(2)(b) lists a number of acts any of which, if done by a club, is evidence that a club is a discriminating club. Included in the list are: (i) the act of refusing to admit a person to membership; and (ii) providing different terms and conditions of membership for members or applicants for membership.

      34. Discrimination is defined in s.3 of the Act of 2000. Section 3(2) provides that, as between two persons, discriminating grounds include that one is male and the other female - the gender ground.

      35. Thus section 8 provides a general rule that, in the relevant clubs, discrimination is illegal and this includes gender discrimination.

      Construing Statutes
      36. The ordinary rules of statutory interpretation apply to construing the words of the Act of 2000. In Howard v. The Commissioners of Public Works [1994] 1 I.R. 101, at p.151, Blayney J. stated the general principles to be applied and adopted Craies on Statute Law 7th Ed., (1971) at p.65, as follows:-


        "The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver."

      In D.B. v. Minister for Health [2003] 3 I.R. 12 McGuinness J. stated at pp.49 and 50 that:-

        "It may, I think, be safe to sum up the judicial dicta in this way. In the interpretation of statutes the starting point should be the literal approach - the plain ordinary meaning of the words used. The purposive approach may also be of considerable assistance, frequently, but not invariably, where the literal approach leads to ambiguity, lack of clarity, self-contradiction, or even absurdity. In the interpretation of a section it is also necessary to consider the Act as a whole. As was stated by Keane J. (as he then was) in Mulcahy v. Minister for the Marine (High Court 4th November, 1994):
            'While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.'"
      Following the well trodden path laid by common law on the interpretation of statutes, I will first consider the literal meaning of the words. If the words are precise and unambiguous then it is necessary only to interpret the words in their ordinary and natural meaning. If the literal approach leads to ambiguity or an absurdity, then I will apply the purposive approach, and consider the Act of 2000 as a whole.

      Section 8 considered
      37. Under section 8 Portmarnock is a "club" as it holds a certificate of registration, a drinks licence. In accordance with s.8 a club shall be considered to be a discriminating club if it has any rule which discriminates against a member or an applicant for membership. Any of the following acts, if done by the club, is evidence that it is a discriminating club - for example, refusing to admit a person to membership, providing different terms and conditions of membership for members or applicants for membership.

      38. Under the rules of Portmarnock only "gentlemen" may be members. Ladies are excluded from membership by the rules. This is gender discrimination. Portmarnock is in breach of the law against discrimination as established under section 8. Portmarnock is a discriminating club under section 8.

      Section 9 considered
      39. The decision in this case rests on the words of section 9. Section 9 makes provision for some exceptions to the general rule against discrimination established in section 8. The question is whether Portmarnock comes within the exception provided. Section 9 provides that in certain instances a club shall not be considered to be a discriminating club under section 8. These instances arise if its principal purpose is to cater only for the needs of (i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin, (ii) persons who are members of the Travelling Community, or (iii) persons who have no religious belief, and it refuses membership to other persons. This case centres around the first exception - that it shall not be considered to be a discriminating club if its principal purpose is to cater only for the needs of persons of a particular gender.

      40. Clearly section 9 makes provision for single gender clubs. However, these are limited to the terms set out in section 9. Section 9(1)(a) makes provision for non-discriminating clubs, and permits discrimination in certain circumstances. The portions of the statute relevant to this case, in s.9(1)(a), are as follows:-

            "… 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 …

            it refuses membership to other persons."

        [Emphasis added]

        Key words are "principal purpose", "cater only" and "needs".



      "Principal purpose"
      41. The legislation permits a club to discriminate if its "principal purpose" is to cater only for the needs of persons of a particular gender. Therefore, it is necessary to identify the principal purpose of Portmarnock.

      42. It is relevant to note that the legislation does not refer to the "purpose" or "purposes" of the club. Rather the legislation refers specifically to the "principal purpose". Thus under the statute it is necessary to identify the principal purpose of Portmarnock, which does not mean that there may not be other purposes, and to find out whether that principal purpose is to cater only for the needs of men.

      43. The learned trial judge accepted submissions made on behalf of Portmarnock. These included the submissions that although discrimination, including on the grounds of gender, was clearly targeted by s.8 of the Act of 2000 in respect of clubs in general, that s.9 provided exceptions if the principal purpose of the club is to cater for the needs of persons of a particular gender. The learned trial judge accepted the submission that this presupposes that all clubs are for some purpose. The learned trial judge referred to Portmarnock's submission that 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, that 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 Club argued for a relatively broad interpretation of "needs" in s.9, that it included social, cultural and recreational needs.

      44. I respectfully disagree with the learned High Court judge and I am of the view that he fell into error in construing the legislation on the presupposition that all clubs are for some purpose. Under the Act of 2000 it is necessary to determine the principal purpose of a club from the facts and there may be no presumption that all clubs are for a purpose or to commence from that presumption. The analysis should start from the facts of the case to determine the principal purpose of a club. The words of s.9 providing that a club shall not be considered a discriminating club are clear. They exempt a club:


        "if its principal purpose is to cater only for the needs of …"

      persons of a particular gender.

      There is no ambiguity in these words. Nor is there any room under the statute for a presumption or presupposition as to some purpose. Consequently, I am satisfied that the learned trial judge erred in his presupposition and in his construction of these words.

      45. To construe section 9, and to apply it, it is necessary to determine the principal purpose of Portmarnock.

      46. To identify the principal purpose of Portmarnock I shall consider its rules. The first rule of Portmarnock is that the name shall be "Portmarnock Golf Club". Thus the name states its location and a purpose - golf.

      47. The second rule has the heading "Game". It states that the rules of golf for Portmarnock shall be the rules of golf, as approved from time to time by the Royal and Ancient Golf Club of St. Andrews. This rule is thus also addressed to the issue of the playing of golf, although inferences may be drawn from it as to whom it is referring.

      48. Rule 3 deals with membership. It 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 prescribed by the Royal and Ancient Golf Club of St. Andrews.

      49. There is also provision for other members, all being men or boys. There are details as to how members may be admitted, as to subscriptions and entrance fees, as to officers, management, accounts, general meetings, change of rules, notices, breach of discipline.

      50. As was found by the learned trial judge, while women are not permitted to become members or associate members of Portmarnock, women may play golf there, either with or without a member, on the payment of a green fee. Portmarnock provides changing facilities and locker rooms for women. Women are entitled to access a bar and restaurant and other clubhouse facilities. A ladies scorecard is available to women golfers. Also, Portmarnock facilitates the playing of golf by women under the rules of the Irish Ladies' Golfing Union. It is clear that women are fully catered for to play golf at Portmarnock.

      51. Having considered the rules I am satisfied that primarily they refer to a golf club in Portmarnock, called Portmarnock Golf Club. The next question is whether this principal purpose is qualified by the remaining words of the phrase in s.9(1)(a), being "to cater only for the needs of" men.


        "To cater only for the needs of" men

      52. Referring to the relevant words of s.9(1)(a), they state that a club will not be a discriminating club if its principal purpose is to cater only for the needs of a particular gender, in this case, men. Thus Portmarnock would not be a discriminating club if its principal purpose is to cater only for the needs of men.

      53. The words "to cater" are defined in the Concise Oxford Dictionary 8th Edit. as to supply food, provide meals for, provide entertainment for, to pander to. The words "to cater" are words in general use and are clear and precise. They usually are applied in relation to the provision of food. If this narrow construction were taken it could be related only to the restaurant etc. However, the High Court found that women are entitled to access a bar and restaurant and all other clubhouse facilities on an equal basis to men. Thus on the facts women are "catered for" in the provision of food also.

      In general, and in the particulars in this case, the words "to cater" may be construed as having a wider dimension than just the provision of food. It appears to me that the words refer to "making a provision for".

      54. It is notable that s.9(1)(a) has the word "only" after the words "to cater". It is a limiting word. It identified that the club would be catering "only" for a specific group. Thus, in an issue of gender discrimination, it would be catering "only" for one gender. However, as the facts of the case indicate, Portmarnock caters for men and women, but differently. Women are not excluded from the Golf Club. They are excluded from membership.

      55. This brings me on to the further qualifying words of s.9(1)(a) being "the needs of". It is notable that the term used is "needs". The word "needs" is defined in the Concise Oxford Dictionary 8th Edit. as "of necessity", and reference is made to the phrase "needs must". This definition is consistent with the clear meaning of the word in general use. The word raises the concept of a necessity, of what must be, of an inexorable requirement. It is not simply a choice.

      56. Section 9(1)(a) provides that there may be single gender clubs when the principal purpose is to cater only for the needs of a single gender. There should be a logical connection between the objects of the club and the gender. There was an example given to, and referred by, the High Court as "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". This was dismissed as "not at all convincing". I would not dismiss such an example out of hand.

      Application of the facts under section 9
      57. I am of the view that on the face of the rules the principal purpose of Portmarnock is the playing of golf. Further, it does not cater only for the needs of men. It caters for men and for women but in different ways. Both men and women may play golf and use facilities and the Clubhouse, but only men may be members.

      58. The words of s.9(1)(a) are clear and precise. Thus it is necessary only to interpret the words in their natural and ordinary meaning. Giving the words their natural and ordinary meaning they do not include Portmarnock. The principal purpose of Portmarnock is golf. It does not cater only for men. It caters for women also, in a different manner. To obtain the protection of s.9(1)(a) there should be a logical connection between the objects of the club and the gender. In this case Portmarnock's principal object is golf and there is not logical connection between that object and the gender on the facts. There are no "needs" connected to the men who are gentlemen members such as to necessitate the club and enable it receive the protection and be an exception to the general rule as provided for in section 9 of the Act of 2000.

      59. However, if there were any ambiguity, which I do not find, the Act of 2000 should be interpreted purposively. The Act of 2000 should be interpreted in accordance with the intent of the legislature. The Act of 2000 was a remedial social statute. Its purpose was to promote equality and prohibit certain forms of discrimination.

      60. Section 8 lays down the general rule prohibiting discrimination, including gender discrimination. Section 9 provides some exceptions. The exceptions should not be interpreted so broadly as to negate the rule set down in section 8. Rather, the exceptions in section 8 should be construed narrowly.

      61. Section 9(1)(a) is an exception to the broad rule against discrimination set out in section 8. The words of s.9(1)(a) are limiting. On the facts of this case they provide an exception only if Portmarnock's principal purpose is to cater only for the needs of men. It is my view that Portmarnock is not covered by s.9(1)(a) as its principal purpose is golf.

      Several arguments addressed by the High Court
      62. The learned trial judge dealt specifically with several arguments, to which I shall refer in the same order.


        (i) The fact that Portmarnock caters for women golfers as well as men is a relevant factor. I am satisfied that this is relevant in analysing the facts and in determining whether it is a club with the principal purpose "to cater only for the needs" of men. Portmarnock caters for men and women. It caters more fully for men than women, but that is not the test set by the statute - which is to "cater only for the needs of" men.

        (ii) Rule 14(4) is relevant in the analysis of the principal purpose of the Club. That rule provides "The Club, being primarily devoted to golf, being an athletic purpose, may admit persons under the age of eighteen years as Members but no excisable liquor shall be sold or supplied in the Club premises to any person under the age of eighteen years be they Members or not ..." The rule specifically states that Portmarnock is primarily devoted to golf. The word "primarily" is similar to the term "principal purpose". Further, the fact that it is a golf club is underscored by the reference "being an athletic purpose". Indeed, the wording of this rule essentially states that Portmarnock is "primarily" devoted to golf, being its "purpose".

        (iii) Section 8 of the Act of 2000 is a powerful general rule against discrimination. Section 9 provides for some exceptions and is limited in its application.

        (iv) The long title in the Act of 2000 states that it is an Act to promote equality and prohibit inter alia types of discrimination - it is to remedy certain discrimination and other unlawful activities. Consequently, as it is remedial legislation the Court should adopt a purposive approach in interpreting the Act, if necessary. I am satisfied that it is not necessary to take that step in this case as the words of the section are clear and precise and do not need the assistance of taking a purposive approach.


      63. I am satisfied that on each of these issues it is clear that the analysis, as stated earlier, of the principal purpose of Portmarnock is applicable. On such analysis Portmarnock's principal purpose is golf. Consequently, Portmarnock is a discriminating club under the Act of 2000.

      64. Reference was made by counsel to s.235 of the Taxes Consolidation Act 1997 - which applies to sole purpose amateur games, of which Portmarnock benefits. The section provides that an appropriate body is any body whose sole purpose is amateur games/sport. This is consistent with the finding that the principal purpose of Portmarnock is golf.

      Conclusion
      65. A club may be established as an association of persons with a common interest. They may share an activity, such as sailing or golf. They may offer members amenities, such as a restaurant and a bar. Section 8 of the Act of 2000 applies to such associations if they have a drinks licence, in which case discrimination is forbidden. However, exceptions are identified in s.9, where discrimination is permitted. While the general rule of s.8 is broadly stated the exceptions are limited by the terms of section 9.

      66. I adopt a literal interpretation to the words of s.8 and s.9(1)(a) of the Act of 2000. Section 8 prohibits discrimination, including discrimination on the basis of gender. However, exceptions are provided for in s.9(1)(a), which makes provision for single gender clubs. This is a specific exception to the general rule stated in section 8. To obtain the status of an exception a club has to comply with the terms of section 9(1)(a).

      67. For the reasons given I am of the view that Portmarnock's principal purpose is golf, consequently, it does not come within the terms of s.9(1)(a) of the Act of 2000. Therefore, it is not a permitted exception to the rule against discrimination. Thus Portmarnock is a discriminating club.

      68. The approach taken by the learned High Court judge in construing s.9(1)(a) of the Act of 2000 was based on a presupposition or presumption that all clubs are for a purpose and on that basis he proceeded to consider the issue of the category of persons catered for. Such an approach is to ignore the clear and precise words of section 9(1)(a). Portmarnock's submission is to presume that clubs are for a purpose. This is an error. Section 9(1)(a) contains no such presumption or presupposition. Rather it requires that the principal purpose be identified. On its identification, if the principal is "to cater only for the needs of" men then a club may be an exception under s.9(1)(a) and a non discriminating club.

      69. However, for the reasons given, I have found that the principal purpose of Portmarnock is golf. Further, that Portmarnock caters for men and women. Portmarnock does not cater "only" for the "needs" of men. By the facilities it offers to men and women the facts show that it is a sports club for golf. The rules themselves indicate that it is primarily a golf club.

      70. Portmarnock Golf Club is exactly what its name says - a golf club in Portmarnock. It caters for men and women in different ways. Portmarnock is not a club which comes within the terms of section 9(1)(a). Consequently, I would allow the appeal. I would hold that the District Court was correct in law in finding that Portmarnock is a discriminating club.

      Constitutional issue
      71. The second issue, that of the constitutionality of the Act of 2000 was not before the Court and does not arise.

      Double construction rule
      72. The issue of the constitutionality of the Act of 2000, was not before the Court at this time. There is, of course, the presumption that the Act of 2000 is constitutional. If there were two or more interpretations open on the words of s.9(1)(a), one constitutional and the other unconstitutional, then the interpretation that it is in accordance with the Constitution would prevail. However, this does not arise in this case as the words of s.9(1)(a) are clear and precise and there is no ambiguity. There are not two or more possible interpretations of the words, nor is there another construction reasonably open, in light of the clear and precise words and their ordinary meaning.

      73. I am satisfied that the correct interpretation of s.9(1)(a) means that Portmarnock is not covered by that exception and is a discriminating club. I do not consider that there is any ambiguity. Consequently, it would not be correct to seek another interpretation or apply any further principles of construction of statutes.

      74. The Constitution provides for freedom of association. The citizens have a right to form associations. This is, of course, not an absolute right. Laws may be passed to regulate and control in the public interest. The Act of 2000 is an Act to promote equality and prohibit certain types of discrimination. Section 8 and section 9 address the matter of discriminating clubs. At this time the correct interpretation of this statute, the intent of the Oireachtas, is the only issue. No issue of the constitutional validity of the Act of 2000 is before the Court.

      75. While the learned High Court judge obviously had the best of intentions, he erred, in view of his interpretation of s.9(1)(a), in proceeding to consider and set out his "comments" on the constitutionality of sections of the Act of 2000.











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