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1. This is the decision of the Supreme Court on the Reference to it by the President of the Employment Equality Bill, 1996 (hereinafter referred to as the Bill) pronounced pursuant to Article 26, Section 2, sub-s 1 of the Constitution of Ireland.

The Reference

By order given under her hand and seal on the 3 April 1997, the President, Mary Robinson, after consultation with the Council of State, referred, in pursuance of the provisions of Article 26 of the Constitution, the Bill to the Supreme Court for a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the Reference

Counsel were assigned by the Court to argue that the Bill is repugnant to the Constitution.

Prior to the oral hearing, counsel assigned by the Court presented in writing heads of the argument intended to be made by them and submissions of law in support of such arguments.

These were replied to in writing by and on behalf of the Attorney General together with submissions of law on his behalf.

The oral hearing then took place before the Court on the 29 and 30 April 1997 and on the 1, 2, 6 and 7 May, 1997. During the course of such hearing the Court heard the oral submissions made by Counsel assigned by the Court and Counsel on behalf of the Attorney General.

Long Title to Bill

The long title of the Bill states that it is:-

"An Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies; to make further provision in connection with Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; to make further provision with respect to harassment in employment and in the workplace; to change the name and constitution of the employment equality agency; to repeal The Anti-Discrimination (Pay) Act, 1974 and to amend the Employment Equality Act, 1977; and to provide for related matters."

As is apparent therefrom the purpose of the Bill is to make further provision for the promotion of equality between employed persons, the prohibition of discrimination between persons, to deal with harassment in employment and in the workplace and to provide for the implementation of the said Council Directives. It is a long and detailed Bill containing seventy four sections and impacting on the thirty three Statutes referred to in the Bill.

Practical Problems posed by the Reference

The form of the Reference in this case raises certain practical problems for the Court. The President has referred for the Court's decision "the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution . . .". When one considers that the Bill consists of seventy-four sections and either amends or refers to thirty-three other statutes one can see that the task confronting the Court is a formidable one. The task is not made lighter by the fact that the Court is constitutionally obliged to give its decision on the Bill within sixty days of the date on which the Bill was referred to the Court by the President. Within this time the Court must assign Counsel, give them time to prepare their written submissions, hold an oral hearing at which the issues are debated in open Court, make its decision and deliver its judgment.

It would have been possible for the President to specify some specific provision or provisions of the Bill on which she needed the Court's decision but she was not obliged to do that. Article 26, Section 1, sub-section 1 of the Constitution provides that the President may, after consultation with the Council of State, refer any Bill to which the Article applies to the Supreme Court for a decision "on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution". Article 26, Section 2 provides that the Supreme Court "shall consider every question referred to it by the President" and that it "shall pronounce its decision on such question . . .".

Article 26, Section 3 provides that if the Supreme Court decides that "any provision" of a Bill the subject matter of a reference is repugnant to the Constitution the President "shall decline to sign the Bill".

If therefore the Supreme Court finds that any provision of a Bill referred to it by the President under Article 26 is repugnant to the Constitution that is a sufficient, and indeed a compelling, reason for the President to refuse to sign the Bill. But if the President has referred to the Supreme Court "the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution", the problem remains whether the Supreme Court by deciding that one provision was repugnant to the Constitution and remaining silent about the others, would have fulfilled its constitutional duty under Article 26, Section 2, sub-section 1 to consider "every question referred to it by the President" and to "pronounce its decision on such question".

This Court in the case of In re The Housing (Private Rented Dwellings) Bill 1981 (1983) IR 186 and in In re The Matrimonial Home Bill 1993 (1994) IR 305 seems to have taken the view that if, on such a reference, the Supreme Court found one provision of the Bill unconstitutional, its proper course was to remain silent concerning the other provisions of the Bill. A passage which appears at p 327 of the Report in the latter case reads as follows:-

"The powers and duty of the Court on the consideration of this reference are provided by Article 26 s 2, sub-s 1 which reads as follows:-

'The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference'.

"The powers and duty of the President in the event of the Court deciding that any provision of the Bill is repugnant to the Constitution are provided by Article 26, s 3, sub-s 1 which reads as follows:-

'In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill'.

"It was stated in the decision of this Court In re The Housing (Private Rented Dwellings) Bill, 1981 [1983] IR at p 186 as follows:-

'It is to be noted that the Court's function under Article 26 is to ascertain and declare repugnancy if such there be) to the Constitution in the referred bill or in the specified provision or provisions thereof. It is not the function of the Court to impress any part of a referred bill with a stamp of constitutionality. If the Court finds that any provision of the referred bill or of the referred provisions is repugnant, then the whole bill fails, for the President is then debarred from signing it, thus preventing it from becoming an Act. There thus may be areas of a referred bill or of referred provisions of a bill which may be left untouched by the Court's decision.'

"The Court accepts this as a correct summary of the legal consequence of the relevant constitutional provisions. The Constitution does not vest in the Court any advisory function to the Oireachtas or to the Houses of the Oireachtas in regard to proposed legislation other than the specific net duty of deciding on a question referred to it under Article 26.

It is for this reason that for it "to impress any part of a referred bill with a stamp of constitutionality" would be for it to act without constitutional authority and in disregard of the constitutional doctrine of the separation of powers."

Nevertheless the fact remains that the function of the Court under Article 26 is to advise the President in relation to the exercise of her powers. The President can specify the provisions on which she seeks the Court's advice and the duty of the Court is to consider "every question referred to it by the President" and to "pronounce its decision on such question in open Court" (see Article 26, s 2, subs 1). No doubt there will be many cases where it is quite clear that there is only one provision of the Bill which is causing the President concern. But in the present case the Court is confronted by a novel and wide ranging reformist measure which is, apparently, to be followed by other similar legislation. Another Bill (the Equal Status Bill, 1997) has already been referred to the Court by the President. In the present case the President has referred to us the question of whether "the said Bill or any provision or provisions thereof" is repugnant to the Constitution. If, in the present case, the Court were to find one provision of the Bill unconstitutional and to say no more the Court might have not addressed the problem or problems which is or are causing the President concern. The result, in the event of the legislature attempting to introduce amending legislation, could be a second reference or series of references which would be singularly unsatisfactory to the President and to the legislature. Moreover Counsel assigned by the Court have attacked several provisions of the Bill. Under these circumstances the Court is obliged to consider the whole Bill and all its provisions particularly those which have been impugned by Counsel as being repugnant to the provisions of the Constitution.

Balancing of Constitutional Rights

The scope of the Bill is comprehensive and purports to deal with all employment related areas from vocational training to access to employment and employment conditions generally, including training work experience and promotion. Its purpose is to outlaw discrimination in employment and promote equality between employed persons and the manner in which this purpose is sought to be achieved is set out in the Bill.

As will appear when the terms of the Bill are discussed, the achievement of such purpose necessitated a balancing by the legislature of different constitutional rights.

It was stated by this Court in Tuohy v Courtney [1994] 3 IR 1 at p 47:

"In a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the Courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights."

It is in accordance with these principles that the Court approaches the ultimate task of deciding upon the question of whether any of the impugned provisions is repugnant to the Constitution.

Presumption of constitutionality of the Bill

The Bill having been passed by both Houses of the Oireachtas is entitled to the presumption that no provision thereof is repugnant to the Constitution.

This Court has held in many previous decisions including the Criminal Law (Jurisdiction) Bill, 1975 [1977] IR 129; the Electoral Amendment Bill, 1983 [1984] IR 268 ; the Adoption (No 2) Bill, 1987 [1989] IR 656); the Matrimonial Home Bill, 1993 [1994] 1 IR 305 and the Information (Termination of Pregnancies) Bill, 1995 [1991] IR 1 that there must be applied by the Court, to a Bill referred to it by the President pursuant to Article 26 a presumption of constitutionality. In particular, the court accepts the principles laid down by the former Supreme Court in Re Article 26 and the Offences Against the State (Amendment) Bill, 1940 that "where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established".

The Court has also applied the principle, previously identified by it In re Information (Termination of Pregnancies) Bill (1995) 1 IR 1 at p 25 of the Report that:-

"as between two or more reasonable constructions of the terms of the Bill, the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions."

The Court in its consideration of this Bill on this Reference applies the presumption of constitutionality and if and where relevant to the provisions of the Bill the principles by way of presumption of constitutionality laid down by it in East Donegal Co-operative v The Attorney General [1970] IR 317 which are summarised in the decision of this Court in The Adoption (No 2) Bill, 1987 [1989] IR 656 as follows at p 661:-

"(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and

(2) That as between two or more reasonable constructions of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions."

The issue which falls to be decided by the Court is the question whether it has been clearly established that the provisions contained in the Bill or any of them are or is repugnant to the Constitution or any provision thereof.

Council Directives 75/117/EEC and Council Directive 76/207/EEC

As appears from the long title to the Bill, one of the objectives of the Bill was "to make further provision in connection with Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and Council Directive 76/207/EEC on the implementation of the principles of equal treatment for men and women as regards to access to employment, vocational training and promotion, and working conditions."

It is not necessary to set out in detail the provisions of the said two Directives.

Council Directive 76/207/EEC deals with the equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

Council Directive 75/117/EEC deals with the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women.

Part III of the Bill deals with the specific provisions as to equality between women and men and such provisions were intended to comply with the requirements of such directives, together with the other objectives set forth in the Bill.

Article 26 and Article 29.4.5 of the Constitution

Article 29.4.5 applies to those provisions of the Bill necessitated by the obligation on Ireland under the EU Treaties fully to implement the provisions of the Equal Pay Directive and the Equal Treatment Directive. This provides that --

"5. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Community or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by the institutions thereof or by bodies competent under the Treaties establishing the Communities from having the force of law in the State."

If the Court were to conclude that any provision of the Bill was necessitated by the obligations of membership of the European Union or the Community, then such provision could not be invalidated by any other provision of the Constitution.

In reaching its decision on the issues raised in connection with the provisions of the Bill, the Court has not considered it necessary to consider the effects of Article 29.4.5 of the Constitution as no issue arose thereon.

Discrimination

One of the objectives of the Bill, as appears from the long title thereto is to 'make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies'.

The general provisions designed to achieve this objective are set forth in Part II of the Bill.

Part II of the Bill

Section 6 provides that:-

"6. (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in sub-s (2) (in this Act referred to as 'the discriminatory grounds'), one person is treated less favourably than another is, has been or would be treated.

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are --

(a) that one is a woman and the other is a man ("the gender ground");

(b) that they are of different marital status ("the marital status ground");

(c) that one has family status and the other does not ("the family status ground");

(d) that they are of different sexual orientation ("the sexual orientation ground");

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not ("the religion ground");

(f) that they are of different ages, but subject to subsection (3) ("the age ground");

(g) that one is a person with a disability and the other either is not or is a person with a different disability ("the disability ground");

(h) that they are of different race, colour, nationality or ethnic or national origins ("the ground of race");

(i) that one is a member of the travelling community and the other is not ("the travelling community ground").

(3) Where --

(a) a person is 65 or over, or

(b) a person is under 18, then subject to section 12(3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.

(4) The Minister shall review the operation of the Act, within two years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section."

This section purports to define discrimination for the purposes of the Bill.

Subject to the provisions of the Bill and the exceptions therein contained, the discriminatory grounds set forth in the Bill are 'gender ground', 'marital status ground', 'family status ground', 'sexual orientation ground', 'religion ground', 'the age ground', 'the disability ground' and 'the ground of race'.

Section 8 provides that:-

"(1) In relation to --

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker."

While the Bill prohibits discrimination on the grounds set forth in the Bill, the Bill however contains many exemptions from such prohibition, such as the exemption on age grounds contained in Section 6(3), and the exemptions set forth in Section 17 of the Bill and on the grounds of religion contained in Sections 12 and 37 of the Bill. Some of these exemptions have been challenged as being repugnant to the Constitution.

Exemptions

The exemptions contained in the Bill which are challenged as being repugnant to the Constitution are those contained in the following provisions of the Bill:-

1. Sections 6(3), Section 33 and Section 37(6)

Sections 6(3) provides that:-

"(3) Where --

(a) a person is 65 or over, or

(b) a person is under 18,

then subject to section 12(3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground."

Section 33 provides that:-

"(1) Nothing in this Part or Part II shall prevent the taking of such measures as are specified in subsection (2) in order to facilitate the integration into employment, either generally or in particular areas or a particular workplace, of --

(a) persons over the age of 50;

(b) persons with a disability or any class or description of such persons; or

(c) members of the travelling community.

(2) The measures mentioned in subsection (1) are those intended to reduce or eliminate the effects of discrimination against any of the persons referred to in paragraphs (a) to (c) of that subsection.

(3) Nothing in this Part or Part II shall render unlawful the provision, by or on behalf of the State, of training or work experience for a disadvantaged group of persons if the Minister certifies that, in the absence of the provision in question, it is unlikely that that disadvantaged group would receive similar training or work experience.

Section 37(6) provides that:-

"(6) In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment --

(a) in the Defence Forces;

(b) in the Garda Siochana; or

(c) in the prison service."

The provisions as to the 'age ground' are challenged as being discriminatory, without rational justification and a violation of Article 40.1 of the Constitution.

2. Section 12, (1)-(6) and Section 37(1) and (2)

Section 12 provides that:-

"(1) Any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the age at which those persons are statutorily obliged to attend school, discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions or otherwise) --

(a) in the terms on which any such course or related facility is offered;

(b) by refusing or omitting to afford access to any such course or facility; or

(c) in the manner in which any such course or facility is provided.

(2) In this Act "vocational training" means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.

(3) For the purposes of this section, Section 6(3)(b) shall have effect as if the reference to the age of 18 were a reference to the age referred to in subsection (1).

(4) For the purposes of ensuring the availability of nurses to hospitals and teachers to primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools, the prohibition of discrimination in subsection (1), in so ar as it relates to discrimination on the religion ground, shall not apply in respect of --

(a) the nomination of persons for admission to the School of Nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970 (Section 76) (Adelaide and Meath Hospital, Dublin, incorporating the National Children's Hospital) Order, 1996, or

(b) places in a vocational training course specified in an order made under subsection (5).

(5) Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).

(6) Without prejudice to section 3(1), an order under subsection (5) may be revoked by a further order made by the Minister for Health, or the Minister for Education, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who took advantage of the effect of the order when it was in force."

Section 37(1) and (2) provides that:-

"(1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if --

(a) it gives more favourable treatment, on the religious ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution; or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

(2) Nothing in this Part or Part II applies to discrimination against C in respect of employment in a particular post if the discrimination results from preferring D on the ground that the relevant characteristic of D is or amounts to an occupational qualification for the post in question."

These provisions are challenged as being repugnant to the Constitution on the grounds that they would, if enacted into law, purport to legalise religious discrimination contrary to the provisions of Article 40.1 and Article 44.2 of the Constitution and endow certain religions contrary to the provisions of Article 40.2.2.

The Court considers it desirable at this stage to deal with these two issues, viz "the age ground" and "the religion ground".

THE AGE GROUND

Under the heading "personal rights", Article 40.1 of the Constitution provides that --

"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 differences of capacity, physical and moral, and of social function."

The nature of the guarantee provided in this Article was explained as follows by Walsh J, speaking for the majority of this court, in Quinns Supermarket v Attorney General [1972] IR 1 at p 13.

"The provisions of Article 40, s 1, of the Constitution were discussed in the decision of this court in the State (Nicolaou) v An Bord Uachtala [1966] IR 567. As was there decided, 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 and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequality grounded upon an assumption, or indeed a belief, that some individual or individual 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."

The enactment by the Oireachtas of a measure which discriminates between groups of persons in the community is, accordingly, not of itself a violation of the guarantee of equality contained in Article 40.1: see the observations of Finlay CJ giving the judgment of this court in DPP v Quilligan (No 3) [1993] 2 IR 305 at p 321. The Article itself expressly allows for the recognition in legislation of differences of capacity, physical and moral, and of social function.

Article 40.3 provides that:

"(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

(2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

It has been held in several cases in the High Court and in this Court that, among the unenumerated personal rights guaranteed by this article, is the right to work and the right to earn a livelihood. (See Murtagh Properties v Cleary [1972] IR 330; Murphy v Stewart [1973] IR 97.) It is also clear that certain rights associated with these rights, such as the right to a pension, gratuity or other emolument or the right to the advantages of a subsisting contract of employment are property rights which the State is obliged to protect, so far as practicable, from unjust attack: see the decision of this Court in Cox v Ireland [1992] 2 IR 503.

These rights are not absolute rights: the State in its laws may impose restrictions on their exercise where that is required by the exigencies of the common good. (See the observations of Finlay CJ in Cox v Ireland at p 522).

It will be clear from the foregoing summary of the relevant constitutional provisions that the enactment by the Oireachtas of legislation such as that now under consideration intended to promote equality between employed persons necessitates the balancing by the legislature of different constitutional values, specifically, the guarantee of equality and the protection of the citizen's right to work and earn a livelihood and of his or her property rights. That difficult exercise is peculiarly within the province of the Oireachtas, but as was made clear by the judgment of this Court in Tuohy v Courtney [1994] 3 IR 1 at p 47:-

"In a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individuals constitutional rights.

It is in accordance with these principles that the court approaches the ultimate task of deciding upon the constitutional validity of those impugned statutory provisions."

It is clear from the judgment of this Court in Re: Article 26 of the Constitution and the Regulation of Information (Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 that precisely similar considerations apply where a Bill is referred to the Supreme Court in accordance with the provisions of Article 26 of the Constitution for a decision as to whether it or any provision thereof is repugnant to the Constitution.

Counsel assigned by the court submitted that s 6(3) of the Bill -- which provides that treating a person who is aged 65 or over or under 18 more favourably or less favourably than another is not to be regarded as discrimination on the age ground -- was itself a discriminatory provision without rational justification which was accordingly a violation of Article 40.1. Where the Oireachtas elected to enshrine an existing constitutional right not to be subjected to unfair or irrational discrimination on the ground of age in statutory form, such a statutory provision would fall to be condemned if it itself was inconsistent with Article 40.1. It was submitted that the same frailty attached to s 33(1) which provided that the anti-discrimination sections of the Bill were not to prevent the taking of measures to facilitate the integration into employment of persons over the age of 50. While it was acknowledged that this provision was clearly intended to ensure that the Bill would not affect the desirable social objective of reducing long-term unemployment, it was submitted that this did not provide an objectively justifiable ground for discriminating between persons aged 18 and 50 on the one hand and those aged between 50 and 65 on the other. The objective could have been more reasonably achieved, it was submitted, by using the length of time for which a person was registered as unemployed as a more appropriate ground for exempting him or her from the effects of the anti-discrimination provisions rather than the arbitrary cut off effected by the Bill at the age of 50.

It was further submitted that s 37(6) which exempted employment in the Defence Forces, the Garda Siochana and the Prison Service from the application of the provisions of the Bill outlawing discrimination on the age ground itself constituted an objectively unjustifiable discrimination between employees in the public and private sectors (such as, for example, employees of security firms) which was itself in breach of Article 40.1.

It was finally submitted in relation to the age ground by counsel assigned by the court that, considered from the employers' perspective, these provisions constituted an unjust and disproportionate interference with the rights of citizens to earn their livelihood and with their property rights in preventing them from taking into account in recruiting employees their suitability for the work in question having regard to their age.

Counsel on behalf of the Attorney General submitted that it should be borne in mind in construing this and other provisions of the Bill that its overriding objective, as was apparent from the long title, was to promote equality between employed persons.

While there might be differing views as to how that goal might be achieved, it was for the Oireachtas, it was said, to adopt the measures which seem to it most likely to achieve the desired result. The Court, it was said, in accordance with the authorities, should not interfere with the resolution by the Oireachtas of the competing constitutional rights implicated unless, objectively judged, that resolution was so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the citizen. The impugned provisions, it was submitted, met those criteria.

It was further submitted that the Court should take into account the fact that what this Bill did was to enhance the legal remedies of, inter alia, employees or potential employees who were the victims of age related discrimination. It did not purport to limit in any way the rights of employees or prospective employees as they now existed: the provisions under attack did no more than spell out the qualifications subject to which the rights capable for the first time of being statutorily enforced were to be so enforced. The rights enjoyed by employees or potential employees before the Bill became law, derived from statutes such as the Unfair Dismissals Act, 1977, were entirely unaffected.

The qualifications subject to which the rights of persons not to be discriminated against on the age ground were given statutory vesture were, objectively considered, necessary and reasonable. It was beyond argument that not to permit employers to make any discrimination on the ground of age would be wholly unjust and impracticable and the fixing of the relevant ages at 18, in the case of young people and at 65 in the case of older citizens, simply reflected a choice by the Oireachtas of generally accepted median age limits for entry into and departure from the work place. Similarly, the modification of the Bill's provisions where they might otherwise have an adverse effect on measures being adopted to reduce long-term unemployment represented a rational and objectively justifiable attempt by the Oireachtas to meet the competing needs of different age groups in the area of work.

It was further submitted on behalf of the Attorney General that, while the legislation undoubtedly imposed new obligations on employers, it also contained measures expressly designed to ensure that their legitimate interests were reasonably safeguarded. Thus, s 16(1) ensured that an employer would not be under an obligation to employ a person who was not competent, by reason of his or her age, to perform the duties of a particular position and s 34(3), (4) and (5) provided additional protection where matters such as increased costs were involved, while at the same time enabling employers to fix different ages for the retirement of employees or any class of employees. In these circumstances, it was submitted, it could not reasonably be said that the provisions constituted an unjust attack on the constitutional rights of employers to earn their livelihood or on their property rights.

The submission by counsel assigned by the Court that these provisions discriminate against employees or potential employees on the ground of age in violation of their rights under Article 40.1 of the Constitution must first be considered.

Article 40.1, as has been frequently pointed out, does not require the State to treat all citizens equally in all circumstances. Even in the absence of the qualification contained in the second sentence, to interpret the Article in that manner would defeat its objectives. In the present context, it would mean that the State could not legislate so as to prevent the exploitation of young people in the work place or, at the other end of the spectrum, to make special provision in the social welfare code for the elderly. The wide ranging nature of the qualification which follows the general guarantee of equality before the law puts beyond doubt the legitimacy of measures which place individuals in different categories for the purposes of the relevant legislation. In particular, classifications based on age cannot be regarded as, of themselves, constitutionally invalid. They must, however, be capable of justification on the grounds set out by Barrington J in Brennan v AG [1983] ILRM 449 as follows:-

"The classification must be for a legislative purpose . . . it must be relevant to that purpose, and . . . each class must be treated fairly."

The provisions of the Bill now under consideration have, of course, as their objective the elimination, so far as practicable, of discrimination on the ground of age in employment. It is urged on behalf of the Attorney General that, since the Bill thus affords statutory protection against discrimination on the ground of age which is not otherwise available, it necessarily follows that the qualifying provisions, which are impugned as being themselves discriminatory, do not in fact encroach on any existing rights of the citizen.

In support of that proposition, it was suggested that the requirements in Article 40.1 that all citizens be held "equal before the law" was essentially a prohibition against unjustifiable discrimination in legislation. It followed, it was said, that a Bill which, far from introducing any form of discrimination was expressly designed to prohibit such, could not be said to violate Article 40.1, because (as was argued by counsel assigned by the court) its qualifications were themselves seen to be impermissibly discriminatory.

The Court is satisfied that this submission goes too far. The guarantee of "equality before the law" is in its terms not confined 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. It is sufficient to say that the Article, in common with the other Articles of the Constitution which are concerned with fundamental rights, does not confer a right on any person which, in the absence of the Constitution he would not in any event enjoy as a human being. As Walsh J said, speaking for this court in The State (Nicolaou) v An Bord Uchtala, Article 40.1 is:

"An acknowledgement of the human equality of all citizens and that such equality will be recognised in the laws of the State."

The forms of discrimination which are, presumptively at least, prescribed by Article 40.1 are not particularised: manifestly, they would extend to classifications based on sex, race, language, religious or political opinions.

Discrimination based on age would not seem, at first sight, so clearly within the ambit of Article 40.1. It is noteworthy, in this context, that the Supreme Court of the United States in Massachusetts Board of Retirement Et Al v Murgia [427 US 307] declined to treat a classification based on age as "suspect" within the terms of its then jurisprudence. However, the comments of Marshall J in the course of his dissenting opinion in that case are also of relevance to the present enquiry:

"Whether older workers constitute a "suspect" class or not, it cannot be disputed that they constitute a class subject to repeated and arbitrary discrimination in employment . . .

Of course, the court is quite right in suggesting that distinctions exist between the elderly and traditional suspect classes such as Negroes, and between the elderly and "quasi-suspect" classes such as women or illegitimates. The elderly are protected not only by certain anti-discrimination legislation, but by legislation that provides them with positive benefits not enjoyed by the public at large. Moreover, the elderly are not isolated in society, and discrimination against them is not pervasive but is centred primarily in employment. The advantage of a flexible equal protection standard, however, is that it can readily accommodate such variables. The elderly are undoubtedly discriminated against, and when legislation denies them an important benefit -- employment -- I conclude that to sustain the legislation appellants must show a reasonably substantial interest and a scheme reasonably closely tailored to achieving that interest . . ."

It will be seen that the test adopted by Marshall J in the closing paragraph is not in essence different from that adopted by Barrington J in Brennan v Attorney General.

The aged are thus entitled as human beings to protection against laws which discriminate against them, unless the differentiation is related to a legitimate objective and is not arbitrary or irrational. The young are also so entitled, although the need for protection may be less obvious and pressing in their case. There is no question but that the Bill under consideration in seeking to eliminate such discrimination from the work place so far as practicable is designed to meet an important objective which is enshrined in the Constitution itself.

In precisely the same manner, however, as the wide ranging constitutional guarantee of equality necessarily envisages the recognition by the State in many contexts of inequality, so too must legislation of the nature now under scrutiny. The law cannot require an airline company to employ a child or a nonagenarian as an airline pilot. The Bill attempts to meet this difficulty by the various provisions already referred to, which relieve employers from the obligation not to discriminate on grounds of age in a number of different circumstances. No criticism has been advanced in argument of those provisions since they clearly envisage that the employer will not be able to escape responsibility, unless on an objective assessment he or she can be regarded as coming within the exemption in question. It was, however, urged, that, where the exemptions are based on specific age thresholds, they are inescapably discriminatory and in breach of Article 40.1.

It may, of course, be argued that, in the case of s 6(3), the age limit could have been fixed at a higher age than 65 or a lower age than 18. Once, however, it was conceded that the protection against discrimination on the grounds of age cannot be unqualified, it becomes a matter for the Oireachtas to determine at what level the exemptions should begin to operate. Since the age limits chosen, of 18 and 65 respectively, reflect the thresholds at which a significant number of the population enter or leave the working place, their choice could not plausibly be characterised in the view of the court, as irrational or arbitrary.

The Bill, in seeking to ensure that its objective of reducing discrimination on the ground of age does not adversely affect measures intended to alleviate the problem of the long-term unemployed, has, as already noted, removed such measures from the ambit of the Bill where they are designed to facilitate the integration into employment of persons over the age of 50. No doubt in this instance the age limit chosen does not correspond to any recognised threshold. Where, however, as here, the Oireachtas was dealing with a specific problem in ensuring that its legislative goal of equality of employment did not unnecessarily frustrate another objective of eliminating or reducing long-term unemployment, it was entitled, as a matter of social policy, to choose between fixing the relevant age at what was an appropriate level or employing another and more flexible, but it may be a less practicable, yardstick, such as the length of time an individual is registered as being one of the long-term unemployed. While it is possible to argue that the Oireachtas has made the wrong choice, that cannot amount to a finding that the classification for which they have adopted is irrelevant to the objective intended to be achieved or unfair or irrational.

It might be, at first sight, more difficult to defend on constitutional grounds the wide-ranging exclusion from the Bill's provisions of employment in the Defence Forces, the Garda Siochana or the Prison Service. Once, however, it is accepted that discrimination on the grounds of age falls into a different constitutional category from distinction on grounds such as sex or race, the decision of the Oireachtas not to apply the provisions of the Bill to a relatively narrowly defined class of employees in the public service whose duties are of a particular character becomes more understandable. It must be emphasised again at this point that a provision of this nature in this particular Bill does not have as its consequence a shielding from judicial scrutiny on constitutional grounds of legislation fixing age limits for any of the employments in question. The right of persons affected by such legislation to advance a challenge to compulsory retirement at a specified age without any testing to determine individual fitness for the post in question, such as was unsuccessfully advanced in the United States case of Murgia, remains. Given the distinctive requirements associated with these branches of the public service and the particular importance of ensuring a high level of physical and mental fitness, it can hardly be said, in the court's view, that the decision of the Oireachtas to remove them from the am bit of this particular measure, whether correct or not, is unrelated to a permissible legislative objective or irrational or unfair.

There remains to be considered the submission that these provisions are an unfair and disproportionate interference with the rights of employers to earn their livelihood and with their property rights. The court is conscious of the difficulties which legislation of this nature creates for employers in the private sector. Thus clearly, the smaller the firm, the correspondingly more onerous will be the burden of this form of regulation. At the same time, it must also be recognised that, in the various provisions already referred to, the legislature has sought to ease the burden to the extent that it deemed practicable. Once it is accepted that the Oireachtas was entitled to enact measures intended to eliminate so far as practicable unjust discrimination in employment on the grounds of age, the manner in which it sought to balance the conflicting interests of the employees and potential employees on the one hand and employers on the other was a matter for them. Where, as here, the result, objectively viewed, cannot be regarded as arbitrary or irrational, they must be upheld as constitutionally valid.

The Court is satisfied that it has not been established that the provisions relating to the age ground are repugnant to the provisions of the Constitution.

THE RELIGION GROUND

The Sections of the Bill relevant to this issue viz Sections 12 and 37 have already been set forth in the course of this decision and it is unnecessary to repeat them.

Summary of Submissions of Counsel Assigned by the Court

Counsel assigned by the Court submit that the provisions quoted are repugnant to the Constitution in that they would, if enacted into law, purport to legalise religious discrimination contrary to the provisions of Article 40 s 1 and Article 44 s 2 of the Constitution and to endow certain religions contrary to the provisions of Article 44 s 2 subsection 2. They say that the sections, if enacted into law, would have the effect of making religion a criterion for employing people, for dismissing them from their employment or for admitting them to vocational training.

Moreover they submit that the form of religious discrimination which the section purports to permit is far wider than anything necessitated by any provision of Article 44 of the Constitution and is totally disproportionate. The reference to religious "ethos" is so vague as not to be justiciable. Each of the religious institutions referred to in Article 37 will therefore be entitled to define its own ethos and thereby to dictate the circumstances in which its staff can be appointed, promoted or dismissed. The result will be to undermine, in an unconstitutional way, the right of citizens who are members of a minority religious denomination or who have no religion to earn their livelihood. Moreover they submit that the Bill refers to "institutions" and is therefore broad enough to cover private hospitals and other institutions which are not institutions maintained by a religious denomination for religious or charitable purposes of the kind contemplated by Article 44 s 2 subsection 5 of the Constitution.

Summary of Submissions of Counsel for the Attorney General

Counsel for the Attorney General submit that insofar as the Bill purports to authorise a religious discrimination or distinction the discrimination or distinction authorised is a form of positive discrimination necessary (and no more than is necessary), to give effect to the provisions of Article 44 of the Constitution. Moreover they submit that the Bill would offend Article 44 of the Constitution if the ban on religious discrimination contained in s 6 of the Bill stood alone without the exception contained in s 37. They deny that the Bill in any way authorises the endowment of any religion. They say moreover that State aid to religious and charitable institutions maintained by various religious denominations is authorised by the Constitution and the kind of distinctions made by the Bill are also authorised by necessary implication. Moreover they say that the institutions referred to in the distinctions under discussion are religious, educational or medical institutions under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values. These bodies will invariably be boards of governors, trustees or guardians under the control or influence of the various religious denominations and are the "institutions for religious or charitable purposes" referred to in Article 44 s 2 subsection 5 of the Constitution. Counsel admit that a tension does exist between the right to equality guaranteed by Article 40 s 1, the right to free profession and practice of religion guaranteed by Article 44 s 2 and the right to earn a livelihood guaranteed by Article 40 s 3 of the Constitution, but they submit that the sections under discussion represent a balanced attempt by the Oireachtas to resolve these tensions.

Relevant Constitutional Provisions

Article 40 s 1 of the Constitution provides as follows:-

"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 differences of capacity, physical and moral, and of social function."

Article 44 is entitled "Religion" and reads as follows:-

"1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2. 1o Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

2o The State guarantees not to endow any religion.

3o The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

4o Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

5o Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

6o The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation."

Some of the provisions of Article 42 (dealing with education) may also be relevant to the present discussion. Article 42 provides, inter alia, as follows:-

"1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3. 10 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

2o The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation . . ."

Conclusions of Court on Religion Ground

It will be noted that while, in the preamble the "People of Eire" humbly acknowledge their obligations to our Divine Lord Jesus Christ, Article 44 imposes certain duties upon the "State". These duties are more general and less specific than the obligations acknowledged by the People in the preamble. The duty of the State is to respect and honour religion though no specific religion is identified. The Constitution then goes on to guarantee freedom of conscience and free profession and practice of religion "subject to public order and morality" to every citizen.

It is clear from Article 42 that the State acknowledges that the primary and natural educator of the child is the family. The State accordingly guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. The State may, as guardian of the common good, require that children receive a certain minimum education, moral intellectual and social. The clear implication is that the religious education of the children is primarily a matter for the parents and parents are free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall however endeavour to supplement and give reasonable aid to private and corperative educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard for the rights of parents especially in the matter of religious and moral formation. Legislation, however, providing State aid for schools, must not discriminate between schools under the management of different religious denominations and every religious denomination is to have the right to manage its own affairs and to maintain institutions for religious or charitable purposes.

It is quite clear therefore that the State is entitled to support denominational schools though it is forbidden to discriminate between schools under the management of different religious denominations. It is also clear that Articles 42 and 44 of the Constitution reflect the system of denominational education which in fact existed in Ireland at the date of the coming into operation of the Constitution.

This system does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44 s 2 subsection 2 of the Constitution. The Constitution does however expressly authorise State aid for schools but forbids the State to discriminate between the schools under the management of different religious denominations or to pass any legislation which would affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. The provision of such State aid across the board to schools maintained by the various religious denominations cannot be regarded as the endowment of any one religion.

Institutions for Religious or Charitable Purposes

Article 44 s 2 subsection 5 provides that every religious denomination is to have the right to maintain institutions for religious or charitable purposes. One can get a clearer picture of what is meant by "religious denomination" if one looks at two subsections of the Constitution which were deleted by the fifth amendment to the Constitution in 1972. Section 1 subsection 2 (now deleted) of Article 44 referred to the special position of the Holy Catholic Apostolic and Roman Church as Guardian of the faith professed by the great majority of the citizens. Subsection 3 (also deleted) went on to provide as follows:-

"The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution."

The term "religious denomination", was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.

These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in subsection 1 of Section 37 of the Bill and that they are also governed by the phrase "institutions for religious or charitable purposes" referred to in Article 44 s 2 subsection 5 of the Constitution.

The Court rejects the submission that a private hospital could be a medical institution within the meaning of s 37 subsection 1 of the Bill without being an institution for charitable purposes referred to in Article 44 s 2 subsection 5 of the Constitution. The Court accepts the submission of Counsel for the Attorney General that the term "institutions for religious or charitable purposes" is at least broad enough to cover the four categories of legal charities adopted by Lord Macnaghten in Commissioners of Income Tax v Pemsel [1891] AC 531 and approved by the former Supreme Court in Barringtons Hospital the Commissioners of Valuation [1957] IR 299 and by Keane J in In re Worth Library [1995] 2 IR 301. At p 583 of the report Lord Macnaghten stated that:-

"How far then, it may be asked, does the popular meaning of the word "charity" correspond with its legal meaning? "Charity" in its legal sense comprises four principal divisions: Trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The Trusts last referred to are not less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly."

Religious Discrimination

The central submission of Counsel assigned by the Court in relation to the religion ground is that Article 37 contravenes the guarantees of freedom of conscience and the free profession and practice of religion contained in Article 44 s 2 subsection (1) and the ban on imposing any disabilities or making any discrimination on the ground of religious profession, belief or status contained in Article 44 s 2 subsection (3). Alternatively, they maintain that the Oireachtas has failed to preserve a proper balance between the rights of members of the various religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. Consequently they allege the relevant provisions of the Bill, if enacted into law, would constitute an unjust and disproportionate attack on the rights of these other citizens.

This Court accepts that it is not generally permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status.

This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn Supermarket Limited v Attorney General [1972] IR p 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday. In the course of his judgment, delivering the majority opinion of this Court, Walsh J stated (at p 24 of the report) that:-

"Section 2, subsection (1) of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of section 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practising religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practice their religion. If however, the implementation of the guarantee of free religion and the practice of religion requires that a distinction should be made to make possible for the persons professing or practising a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44 section 2, to permit the guarantee against discrimination on the grounds of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented."

Walsh J returned to the same theme in Mulloy v the Minister for Education [1975] IR p 88 where he stated (at p 96 of the report) --

"As explained in the judgment given in this Court in Quinn Supermarket v the Attorney General [1972] LR p 1, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status irrespective of whether the difference is to their benefit or to their disadvantage -- save where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion."

In McGrath and O'Ruairc v The Trustees of Maynooth College [1979] ILRM 166, Henchy J expressed similar views at p 187 of the report where he stated:-

"The constitutional provision invoked here (Article 44.2.30) must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion."

It is interesting to note that the American Federal Supreme Court has had to face a similar problem. The American Civil Rights Act of 1964 outlawed religious discrimination in employment. But paragraph 702 of the Act exempted religious organisations from this prohibition. The Plaintiff in the case of the Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v Amos 4 83 US p 327 was a building engineer employed for some 16 years by the Mormon church to work in a gymnasium. He was dismissed because he failed to produce a certificate that he was a member of the Mormon church and eligible to attend its temples. The Court upheld the constitutionality of paragraph of 702 as not violating the guarantees of freedom of religion contained in the first amendment to the American constitution. The reasoning in the concurring judgment of Brennan J is relevant to the present discussion. At p 342 of the report he says:-

"For many individuals, religious activity derives meaning in large measure from participation in a large religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organisations religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself Solicitude for a church's ability to do so reflects the idea that furtherance of the autonomy of religious organisations often furthers individual religious freedom as well.

The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on a subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital, that, if certain activities constitute part of a religious community's practice, then a religious organization should be able to require that only members of its community perform those activities."

It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar -- but only insofar -- as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.

Proportionality

Section 37, subsections (1) and (2) and section 2 of the Bill are an exception to the general rule against discrimination on the religious ground set out in s 6. It is admittedly a balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one's livelihood on the other. Counsel assigned by the Court however submit that the Oireachtas has got the balance wrong in that section 37, in particular, unduly favours the right to free profession and practice of religion at the expense of the other rights named.

No serious criticism can however be advanced against section 37 subsection (2) which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against subsection (1) which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee "where it is reasonable to do so in order to maintain the religious ethos of the institution" or to take action "which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution".

The use of the words "reasonable" and "reasonably necessary" implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.

Counsel assigned by the Court point to the use of the word "ethos" in subsection (1) and submit that the religious institution or denomination will state in each case what its "ethos" is and that the test will in fact become subjective. It is true that "ethos" is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word "the distinctive habitual character and disposition of an individual group". It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the Court and the Court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.

Section 12

This deals with vocational training and is justified in the same manner as section 37 subsection (1). It first outlaws discrimination and then for the purpose of ensuring the availability of nurses for hospitals and teachers for primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools provides that the prohibition of discrimination on the religion ground is not to apply in respect of:-

"(a) The nomination of persons for admission to the school of nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970, (section 76) (Adelaide and Meath Hospital, Dublin incorporating the National Childrens Hospital) Order 1996 or

(b) Places in a vocational training course specified in an order made under subsection (5)."

Subsection 5 provides that:-

"Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4)."

Again, and for the reasons already discussed in relation to Article 37 section 1, it appears to the Court that s 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand.

For these reasons the Court rejects the challenge to the Bill based on the religion ground.

THE DISABILITY GROUND

The provisions of the Bill relevant to the consideration of this issue raised by Counsel assigned by the Court are Section 6(2)(g), Section 16 and Section 35.

Section 16 provides:-

"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, of the individual

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed; or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to --

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) For the purposes of this Act, a person who has a disability shall not be regarded otherwise than as fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, that person would be so fully competent or capable; and, subject to section 35(4), an employer shall do all that is reasonable to accommodate that person's needs, in particular, by allowing or, as the case may require, making provision for, such treatment or facilities or, by providing such treatment or facilities.

(4) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.

(5) Without prejudice to the generality of subsection (4), that subsection applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable."

Section 35 provides that:-

"(1) Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of that disability, the employee is restricted in his or her capacity to do the same amount of work (or to work the same hours) as a person who is employed to do work of that description but who is without that disability.

(2) Nothing in this Part or Part II shall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities --

(a) enables or assists that person to undertake vocational training, to take part in a selection process or to work; or

(b) provides that person with a training or working environment suited to the disability; or

(c) otherwise assists that person in relation to vocational training or work.

(3) Where, by virtue of subsection (1) or subsection (2), D as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.

(4) Nothing in this Part or Part II applies to discrimination against a person on the disability ground in relation to employment of any description if --

(a) that person needs special treatment or facilities in order satisfactorily to take part in a selection process or to undertake that employment, and

(b) the employer does all that is reasonable to accommodate the needs of that person,

unless, having regard to all the relevant circumstances, including, without prejudice to the generality, the matters specified in subsection (5), the cost of the provision of such treatment or facilities for that person would give rise to undue hardship to the employer.

(5) The matters referred to in subsection (4) are --

(a) the nature of the treatment or facilities that would be required;

(b) the cost of the treatment or facilities and the number of persons who would benefit from them;

(c) the financial circumstances of the employer;

(d) the disruption that would be caused by the provision of the treatment or facilities; and

(e) the nature of any benefit or detriment which would accrue to any persons likely to be affected by the provision of the treatment or facilities.

(6) Except in subsection (1), in this section "employer" includes --

(a) an employment agency;

(b) any person offering a course of vocational training as mentioned in section 12(1); and

(c) a regulatory body."

The meaning of subsection (4) is unclear. The first part -- from "nothing in this part . . . to ". . . that person" -- simply reflects the wording of s 16(3) which makes it clear that an employer who makes the specified arrangements for a disabled person will not be affected by the relevant anti-discrimination provisions. However, the use of the word "unless" to introduce the remainder of the subsection can only mean that those provisions will apply to employers to whom the remaining part is applicable, ie employers who will suffer "undue hardship" on the specified grounds in complying with the relevant anti-discrimination provisions. It is obvious that so absurd a result, which necessarily flows from a literal reading of the subsection, cannot have been intended by the draftsman.

Counsel on behalf of the Attorney General accepted that this was a drafting error and that the words "or where" should have been used instead of "unless". The court, however, approaches the constitutionality of the Bill on the assumption that a court, construing a provision of this nature, is entitled to transpose, interpolate or otherwise alter words in a statute, where the intention of the legislature is plain on the construction of the statute as a whole, in order to give effect to the statute and avoid manifest absurdity or injustice (see Halsbury's Laws of England, 4 edtn vol 44 at para 862). The Court notes, however, that in a number of areas, of which this is the most conspicuous example, the draftmanship of the Bill gives rise to some concern.

It was submitted by counsel assigned by the court that the provisions of the Bill in this area in their application to employers were invalid having regard to Article 40.1 acknowledging the equality of all citizens before the law and Article 40.3 guaranteeing the unenumerated personal rights of the citizen to earn his or her livelihood and to protect his or her property rights from unjust attack.

At the outset, counsel drew attention to the wide ranging definition of "disability" in s 2(1) of the Bill. In particular, it was suggested, the inclusion in "disability" of "disabilities which may exist in the future" meant that virtually the entire population was included in the term "person with a disability". It followed that, despite the measure of relief intended to be afforded to employers, particularly those in the private sector, the burdens imposed on them were extremely onerous and so disproportionate to the results intended to be achieved, it was said, as to amount to a failure adequately to protect the rights of employers to earn their livelihood and also amounted to an unjust attack on their property rights.

In this context, it was submitted that the fact that employers were required to bear what could be significant costs involved in providing appropriate facilities for disabled employees without payment of compensation by the State constituted an unjust attack on their property rights within the meaning of Article 40.3.2. This, it was said, would present particular difficulties for small firms and the concessions envisaged in s 35(4)(5) already referred to were insufficient to save the impugned provisions. It was pointed out that the assessment of whether these costs would cause "undue hardship" to the employer would ultimately be determined by the various agencies on which powers were conferred by the Bill and that even actual hardship might not be sufficient to win exemption, since they would be required to establish to the satisfaction of such bodies that there was "undue hardship", whatever that might be held to mean.

It was finally submitted by counsel assigned by the court that the exemption from these provisions of the Defence Forces, the Garda Siochana and the Prison Service was in violation of the guarantee of equality in Article 40.1. It was urged that this exemption was impermissibly wide, since it was obvious that there were posts in each of the three services, such as desk jobs, which could be filled without any difficulty by persons suffering from disabilities which would disqualify them from performing the duties normally associated with these occupations. All of this, it was said, amounted to a discrimination between the public and private sectors which, given the extent of the discrimination, was unrelated to the objectives sought to be achieved and was irrational and arbitrary.

Counsel on behalf of the Attorney General submitted that these provisions were a delimitation of the exercise of the property rights of employers which had clearly been imposed by the Oireachtas with a view to reconciling the exercise of those rights with the exigencies of a particular aspect of the common good ie the promotion of equality between disabled and more fortunate citizens. As such, it was permissible by virtue of Article 43.2.2 of the Constitution, unless it could be shown that the abridgement thus effected of property rights amounted to an unjust attack on those rights within the meaning of Article 40.3.2. Counsel submitted that the absence of provision for compensation did not amount to such an unjust attack, citing in support the decisions of this court in Dreher v Irish Land Commission [1984] ILRM 94; O'Callaghan v Commissioners of Public Works [1985] ILRM 364; and Cafolla v O'Malley [1985] IR 486.

It was further submitted that, having regard to the well established presumption that the powers and discretions conferred by the Bill would be exercised by those to whom they were entrusted in a manner consistent with the provisions of the Constitution, the court was entitled to assume that, in deciding whether particular persons had established that they would be occasioned "undue hardship" by compliance with the provisions of the Bill, the authorities concerned would be bound to act in a constitutional manner which respected the property rights of the employers concerned and if they failed so to act could be restrained by the courts.

As to the non-applicability of the provisions to the Defence Forces, the Garda Siochana and the Prison Service, it was submitted that the distinctive and unique requirements as to physical and mental fitness of these particular branches of the public service rendered their removal from the scope of the Bill perfectly reasonable. While it was conceded that there were positions in each of the branches concerned which could more easily be occupied by persons with physical disabilities, it was said that these posts were in the main of a clerical nature and, as a matter of administration, those who held them were not regarded as being members of the Defence Forces, the Gardai or the Prison Service as the case might be.

Counsel also drew attention to corresponding provisions in the legislation of other jurisdictions, such as the Americans with Disabilities Act of 1996 (United States), the Disability Discrimination Act 1996 (United Kingdom), the Anti-Discrimination Act 1991, (Queensland), the Human Rights Code (Ontario) and the Human Rights Act 1984, (British Columbia). These contained somewhat similar provisions relating to disability without any corresponding right to compensation and, in the case of the United Kingdom, exempted the Armed Forces, the Police and the Prison Service. In the case of the United States legislation, the exemption extended to the entire public service. While it was accepted that the existence of such legislation in other jurisdictions was not in any sense determinative of the issue, it was submitted that it was of some assistance in enabling the court to determine whether the provisions in question were, as claimed by counsel assigned by the court, so arbitrary and irrational as to be declared invalid.

In considering these submissions, the court considers it necessary to set out in extenso the provisions of Article 43 of the Constitution. It provides that:

"1. 1o The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2o The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2. 1o The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2o The State, accordingly, may as occasion requires, delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good."

It has been clear since the decision of this court in Blake v Attorney General [1982] IR 117 that this Article prohibits the abolition of private property as an institution but at the same time permits, in particular circumstances, the regulation of the exercise of that right. It does not deal with the citizen's right to a particular item of property: those items are, however, protected from unjust attack by the provisions of Article 40.3.1.

The Court is satisfied that the provisions under consideration constitute a delimitation of the exercise by employers of a right protected by that Article, ie the right to carry on a business and earn a livelihood. It is also satisfied that these limitations have been imposed by the Oireachtas with a view to reconciling the exercise of the rights in question with a specific aspect of the common good ie the promotion of equality in the workplace between the disabled and their more fortunate fellow citizens. The issue which the court has to resolve is as to whether the abridgement of those rights effected by these provisions constitutes an "unjust attack" on those rights in the case of individual employers, having regard to the manner in which it has been effected.

It is clear that, in determining whether the absence of any provision in the legislation under consideration for the payment of compensation constitutes such a "unjust attack", the court may have regard to whether the restriction, in the form in which it was imposed, is consistent with the requirements of "social justice" within the meaning of Article 43.2.1.

In reading Article 43 of the Constitution it is important to stress the significance of the word "accordingly" which appears in Article 43 S 2 ss 2. It is because the rights of private property "ought" in civil society to be regulated by "the principles of social justice" that the State may, as occasion requires, delimit their exercise with a view to reconciling it with the "exigencies of the common good". It is because such a delimitation, to be valid, must be not only reconcilable with the exigencies of the common good but also with the principles of social justice that it cannot be an unjust attack on a citizen's private property pursuant to the provisions of Article 40 S 3 of the Constitution (see judgment of Walsh, J in Dreher v Irish Land Commission 1984 ILRM 94).

Needless to say what is or is not required by the principles of social justice or by the exigencies of the common good is primarily a matter for the Oireachtas and this Court will be slow to interfere with the decision of the Oireachtas in this area. But it is not exclusively a matter for the Oireachtas. Otherwise, as was pointed out in the Sinn Fein Funds case, Article 43 would appear, with Article 45, in the section of the Constitution devoted to the directive principles of social policy the application of which by the Oireachtas in the making of laws is withdrawn from the consideration of the Courts (see Buckley and Others v Attorney General and Others [1950] IR 67 at p 83).

The Bill has the totally laudable aim of making provision for such of our fellow citizens as are disabled. Clearly it is in accordance with the principles of social justice that society should do this. But, prima facie, it would also appear to be just that society should bear the cost of doing it. It is important to distinguish between the proposed legislation and legislation to protect the health and safety of workers. It is entirely proper that the State should insist that those who profit from an industrial process should manage it as safely, and with as little danger to health, as possible. The cost of doing the job safely and in a healthy manner is properly regarded as part of the industrialist's costs of production. Likewise it is proper that he should pay if he pollutes the air the land or the rivers. It would be unjust if he were allowed to take the profits and let society carry the cost. Likewise it is just that the State, through its planning agencies, should insist that the public buildings and private buildings to which the general public are intended to have access for work or play should be designed in such a way as to be accessible by the disabled as well as by the able-bodied.

But the difficulty with the section now under discussion is that it attempts to transfer the cost of solving one of society's problems on to a particular group. The difficulty the Court finds with the section is, not that it requires an employer to employ disabled people, but that it requires him to bear the cost of all special treatment or facilities which the disabled person may require to carry out the work unless the cost of the provision of such treatment or facilities would give rise to "undue hardship" to the employer.

There is no provision to exempt small firms or firms with a limited number of employees, from the provisions of the Bill. The wide definition of the term "disability" in the Bill means that it is impossible to estimate in advance what the likely cost to an employer would be. The Bill does provide that one of the matters to be taken into consideration in estimating whether employing the disabled person would cause undue hardship to the employer is "the financial circumstances of the employer" but this in turn implies that the employer would have to disclose his financial circumstances and the problems of his business to an outside party.

It therefore appears to the Court that the provisions of the Bill dealing with disability, despite their laudable intention, are repugnant to the Constitution for the reasons stated.

In view of what is said above it is not necessary for the Court to deal with the exemption of "employment" in the Defence Forces, the Garda Siochana or the Prison Service from the disability provisions of the Bill. The Court does however find it difficult to understand why the clerical or civilian members of these services should be exempt.

VICARIOUS LIABILITY

Re: Sections 14 and 15 of the Bill

Coming to a consideration of sections 14 and 15 of the Bill. They provide:-

"14. A person who procures or attempts to procure another person to do anything which --

(a) constitutes discrimination which is unlawful under this Act

or

(b) constitutes victimisation for the purpose of Part V,

shall be guilty of an offence under this section.

15. (1) Anything done by a person in the course of his or her employment shall be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person, shall be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee --

(a) from doing that act; or

(b) from doing in the course of his or her employment acts of that description"

It is nowhere provided in the legislation that the actual perpetrator of an act of discrimination or victimisation is to be guilty of any offence. It is only a person who procures or attempts to procure another person to do something which constitutes discrimination or victimisation who can be guilty of an offence: s 14 Such a person must be proved in the ordinary way to have had mens rea ie an intention to commit the offence. It is strange and anomalous that the chief perpetrator of the act is guilty of nothing; it is only the person who procures or attempts to procure the deed who is to be arraigned. But just because a provision is strange or anomalous does not render it repugnant to the Constitution. It is, for example, only a civil wrong to trespass on another's land but if there is a conspiracy to commit a trespass on another's land that makes the conspirators guilty of a criminal offence. The Court concludes that s 14 is not repugnant to the Constitution.

Coming to s 15, the first enquiry that has to be made is whether it applies to criminal as well as to civil proceedings. It should be said that as regards the fixing of civil responsibility on an employer, s 15 is unexceptional and accords with well established principles of fixing vicarious responsibility on employers for the wrongs of their employees. Counsel for the Attorney General submitted that the section does apply to criminal proceedings and invited the Court to say that if that submission is wrong, the provision might be saved under the "double construction" rule. cf Kelly, The Irish Constitution, 3 Edition, p 458 et seq.

In the opinion of the Court the "double construction" rule can have no application to this section. The so called rule can only apply where there is an ambiguity or a choice between two constructions. If on a reading of the section the plain words are apparent, then the duty of the Court is to give effect to a literal reading of the section. The section refers to "proceedings brought under this Act" which must include all forms of proceedings and that, in turn, includes criminal proceedings.

The Court has no entitlement to give a statutory provision a construction beyond its plain meaning. As the Court said in East Donegal Co-operative v Attorney General [1970] IR 317 at 341:-

"It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas."

It is clear that under s 15 while the person procuring or attempting to procure the deed must have a guilty mind it is not necessary to show that the employer who is to be made vicariously responsible had any knowledge of the procurer's actions. While it was submitted, both in the written submissions and in the oral presentation by counsel for the Attorney General, that sub-s 3 provides an escape route of some description for an accused, this may not always be so.

While the debate before the Court was largely occupied by the inter-relation between Sections 14 and 15, it should be noted that s 15 governs not only s 14 but the other offence sections, viz s 10(4); s 11(4); s 61(4) and s 63 where the possibility of applying sub-s 3 is even more problematic.

Further, it is to be noted that the Court deals here with a question of vicarious liability: not absolute or strict liability. This distinction is important because many of the cases which proceeded on the basis that the master was being rendered liable for the wrong of the servant in a criminal context involved the failure on the part of the master to perform a personal duty -- that is a duty imposed on a specified person by the relevant statute.

At common law a master was liable for the crimes of his servant in two circumstances only. The proprietor of a newspaper was liable criminally as well as civilly for libels published by his servants in conducting his newspaper even though he had not authorised their publication; but the Libel Act, 1843, permitted him to show that the libel was published without his authority and with no lack of care on his part. (See now s 7 of the Defamation Act, 1961) The other exception at common law was that of public nuisance. This is an act which obstructs, or causes inconvenience or damage to, the public in the exercise of rights common to all the citizens.

Aside from these exceptions, the master was not liable for the crimes of his servant. In Huggins [1730] 2 Stra 883 the accused, the warden of the Fleet, was charged with the murder of a prisoner whose death had been caused by the servant of Huggins's deputy. It was held that, though the servant was guilty, Huggins was not, since the acts were done without his knowledge. Raymond CJ said at p 885:-

"It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour. All the authors that treat of criminal proceedings proceed on the foundation of this distinction; that to affect the superior by the act of his deputy, there must be the command of the superior which is not found in this case."

There were many exceptions created by statute over the years but they tend to be confined to what have been termed "public welfare offences". Many of the nineteenth century cases turned on the liability of publicans. The reason for holding a publican liable for the crimes of his servant was that since the licence was personal to him and involved a commitment by him to run an orderly house then he should bear the consequences if the servant did anything wrong. The difficulty in granting any exemption to the licensee in such circumstances was illustrated in the judgment of Lord Russell of Killowen in Police Commisoners v Cartman [1896] 1 QB 655 at 658:-

"We may take as an illustration the case of a sporting publican who attends race-meetings all over the country, and leaves a manager in charge of his public-house; is it to be said that there is no remedy under this section if drink is sold by the manager in charge to any number of drunken persons? It is clear that there is no machinery by which the person actually selling can be convicted; a penalty can only be inflicted on the licensee."

The rationale behind this type of case is captured well in the judgments of the King's Bench Division in Department of Agriculture and Technical Instruction v Burke [1915] 2 IR 128.

The background facts to that case were that by s 5 sub-s 1, of the Weeds and Agriculture Seeds (Ireland) Act, 1909, an officer of the Department of Agriculture and Technical Instruction for Ireland was empowered to enter the shop or other premises of any person who sold agricultural seeds for sowing, and could examine and take samples of any agricultural seeds on the premises. By sub-s 2 it was provided that the person on whose premises a sample was taken should if the officer required, give the name and address of the person from whom he procured the seeds, and if he refused to give such name and address, or wilfully gave a false name and address, he should be guilty of an offence under the Act, and liable on summary conviction to a penalty not exceeding £10. It was held that the owner of the shop in which the sample was taken was guilty of an offence under the sub-section if such false name and address was wilfully given by the manager of the business, although without the authority or consent of the principal.

Cherry LCJ said, at p 138:-

"There is no doubt that the general principle of English criminal law is that a man is responsible only for his own acts, and not for those of his agents or servants unless he has expressly authorised them. A guilty knowledge or some unlawful intention is, as a general rule, necessary to constitute a crime. Nemo reus est nisi mens sit rea. The doctrine of the responsibility of principals for the acts of their agents does not usually apply in criminal proceedings. But there are numerous exceptions to this rule. The greater number of these exceptions grafted upon the general rule are cases in which it has been decided that, upon the construction put upon the language of particular statutes, criminal responsibility has been placed upon masters for the acts of their servants. These statutes are usually Acts, such as the Food and Drugs Act, and the Merchandise Marks Act, passed with the object of securing fair and honest dealing in retail trades, by regulations the enforcement of which rests with inspectors appointed by the Government. Cases under these statutes are very numerous. I need only refer to one or two as samples. In Pain v Boughtwood 24 QB D 353, decided in 1890, and followed by all courts ever since, it was held that a shopkeeper might be convicted under the Sale of Food and Drugs Act, 1875, of selling adulterated milk, though he was personally unaware of the adulteration at the time of the sale, and that it was unnecessary to prove a mens rea to support the conviction. No question arose in that case as to the responsibility of a master for the acts of his servant; but in a more recent case of Commissioners of Police v Cartman [1896] 1 QB 655, it was held that a licensed publican might be convicted of selling intoxicating liquor to a drunken person, though the sale was made in his absence by a servant, contrary to his express directions. The ground of that decision was that in businesses usually carried on, not by the proprietors themselves but by servants on their behalf, the object with which the Acts were passed would be defeated unless the employers were held liable for the acts of their servants done within the scope of their employment. The reasoning upon which the decision under the Licensing Acts was based applies with full force to the statute under which the present proceedings are taken, and the case itself is a strong authority for holding that the decision of the magistrates in the present case is wrong. The seed trade, as well as the licensing trade, is carried on usually by salesmen in shops, and there can be no doubt that a manager giving to a Government inspector the information which the owner was bound to give on request, is acting within the scope of his authority. This at once brings the case within the line of authorities under the various statutes referred to in Coppen v Moore [1898] 2 QB 306, where, in the words of Lord Russell of Killowen 'the Court, in fact, came to the conclusion that, having regard to the language, scope, and object of these Acts, the Legislature intended to fix criminal responsibility upon the master for acts done by his servant in the course of his employment, although such acts were not authorised by the master, and might even have been expressly prohibited by him'.

The respondent's counsel in this case relied very strongly upon the decision of the Court in the case of Taylor v Nixon [1910] 2 IR 94, but that case is clearly distinguishable from the present one. There, the offence charged was that of obstructing an inspector in taking a sample of whiskey, and the act done by the manager, for which it was sought to hold the publican liable -- namely, breaking the bottle -- was clearly one which could not possibly be held to come within the scope of his authority."

While the Court is not now called upon to pronounce on the validity of such provisions, nevertheless, the Court is of the opinion that the conditions by which they may be held to pass muster under our present constitutional system is that they were part of the established legal order at the birth of the State as well as on the coming into operation of the present Constitution; they should essentially be regulatory in character; apply where a person has a particular privilege (such as a licence) or a duty to make sure that public standards as regards health or safety or the environment or the protection of the consumer, and such like, are upheld, and where it might be difficult, invidious or redundant to seek to make the employee liable.

However, what is sought to be done by this provision is that an employer, devoid of any guilty intent, is liable to be found guilty on indictment of an offence carrying a fine of £15,000 or a prison sentence of two years, or both such fine and imprisonment, and to be tainted with guilt for offences which are far from being regulatory in character but are likely to attract a substantial measure of opprobrium. The social policy of making the Act more effective does not, in the opinion of this Court, justify the introduction of so radical a change to our criminal law. The change appears to the Court to be quite disproportionate to the mischief with which the section seeks to deal.

In the course of his speech in Sweet v Parsley (HL(E)) [1970] AC 132 at p 150, Lord Reid -- the case dealt more with the concept of strict liability as opposed to vicarious liability, but what he had to say is equally pertinent to what the Court has to consider -- referred to "the public scandal of convicting on a serious charge persons who are in no way blameworthy". Of course, the English courts would have to recognise that if parliament decreed that a person should be found guilty in those circumstances, then the legislation might be upheld because parliament in the British system is said to be supreme.

Our situation, however, is totally different. We are governed by a Constitution with the separation of powers as its fulcrum and the two houses of the Oireachtas are precluded from enacting any legislation which is in any respect repugnant to the Constitution.

The Court concludes that to render an employer liable to potentially severe criminal sanctions in circumstances which are so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law and, therefore, contrary to Article 38.1 of the Constitution and also repugnant to the provisions of Article 40.1 of the Constitution.

SECTION 16(4)

Section 16(4) provides that nothing in the legislation shall be construed as:-

". . . requiring an employer to recruit, retain in employment or promote an individual if the individual is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful."

It is clear that the Bill provides that none of its provisions requires an employer to recruit, or promote an individual if the employee has a past criminal conviction for unlawful sexual behaviour or it is considered on the basis of reliable information that he engages in, or has a propensity to engage in unlawful sexual behaviour.

Counsel assigned by the Court challenged s 16(4) on the grounds that a person could be singled out on the basis of "reliable information" and that this is contrary to the guarantee of equality identified by the Court in King v Attorney General [1981] IR 233 and that an offence against the requirement that laws should be certain and that the language used ("reliable information", "propensity") is inherently uncertain.

It should be emphasised that the provision provides an exemption of which the employer is entitled to avail but, as submitted by counsel for the Attorney General, the Bill leaves unaffected any existing legal or constitutional remedies which an employee may have against an employer who, for example, dismisses him or fails to promote him: cf Unfair Dismissals Acts, 1977-1993.

The legislation impugned in King's case was s 4 of the Vagrancy Act, 1824, as amended by the Prevention of Crimes Act, 1871, and the Penal Servitude Act, 1891, which provided:-

". . . every suspected person or reputed thief, frequenting or loitering about or in any river, canal or navigable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any highway or any place adjacent to a street or highway, with intent to commit felony . . . shall be deemed a rogue and vagabond, within the true intent and meaning of this Act; and it shall be lawful for any Justice of the Peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the House of Correction, there to be kept to hard labour for any time not exceeding three calendar months . . . and in providing the intent to commit a felony it shall not be necessary to show that the person suspected was guilty of any particular act or acts tending to show his purpose or intent, and he may be convicted if from the circumstances of the case, and from his known character as proved to the Justice of the Peace or court before whom or which he is brought, it appears to such justice or court that his intent was to commit a felony . . ."

As Kenny J observed in the course of his judgment (at p 263):-

"It is a fundamental feature of our system of government by law (and not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or of offences which, created by statute, are expressed without ambiguity. But what does 'suspected person' mean? Suspected of what? What does 'reputed thief, mean? Reputed by whom? It does not mean a person who has been convicted of theft, for then 'convicted thief, would have been the appropriate words. So one is driven back to the conclusion that it is impossible to ascertain the meaning of the expressions. In my opinion, both governing phrases 'suspected person' and 'reputed thief' are so uncertain that they cannot form the foundation for a criminal offence."

It will be seen immediately that the point at issue was totally different from what is in debate in this Reference.

Whether particular information is "reliable" or whether a person has such a "propensity to engage in" the conduct to which s 16(4) applies will, in the event of dispute, fall for resolution by the relevant tribunal or court and it may be taken as accepted that they will apply the well established standards of constitutional justice and fair procedures.

No doubt, the Houses of the Oireachtas conscious of the higher dangers of recidivism with regard to sexual crimes as well as the addictive character of certain sexual offences involving minors and so as to avoid a situation where persons convicted of such offences or with a clear propensity to engage in such behaviour could secure access to employment on an equal footing with other types of employees, provided by s 16(5) that:-

"Without prejudice to the generality of s 16(4) that sub-section applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable."

The Court is of the view that it is concerned here with something that is clearly one of policy which the Houses of the Oireachtas are entitled to enact so as to afford employers a certain protection and this is justifiable on the grounds of prudence and safety. However, it should be observed that it is not every idle word that should be heeded by an employer. The employer in each case where a person's suitability is called in question will need to make a proper value judgment having regard to all the circumstances; but if that judgment is exercised bona fide the employer should not be faulted just because it turns out to be wrong.

CERTIFICATE UNDER S 63

Section 63 states:

"(1) Any person who --

(a) obstructs or impedes the Court, the Director or an equality officer in the exercise of powers under this Part,

or

(b) fails to comply with a requirement of the Court, the Director or an equality officer given under this Part, shall be guilty of an offence under this section.

(2) Any reference in subsection (1) to an equality officer includes a reference to a person authorised under section 58(1)(a).

(3) In any proceedings for an offence under this section, a document purporting to be certified by the Director or to be sealed with the seal of the Court and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein."

Submissions

Counsel assigned by the Court submitted that the provisions of s 63(3) are unlike any other provision in a criminal statute where the offence can be proved by a certificate (potentially based on hearsay of an authorised officer's evidence) without the requirement that the author of the certificate attend to give evidence and be cross-examined on the facts stated in the certificate. It was submitted that s 63(3) envisages the whole of the prosecution's case being on the certificate, that the certificate would set out the facts of the offence and that there would be no need for more evidence thereafter. Thus, on the presentation of the certificate recording the circumstances of the offence to the Court and on receipt thereof by the Judge there would be no other element of the offence to be proved by the State. The accused must thereafter give evidence or suffer the consequences.

Counsel pointed out that the person making the certificate may not himself have been the person involved in the events and yet he may certify from information he has received from others. Counsel submitted that the effect of this process is to shift the persuasive burden of proof to the accused. As such, it was submitted, the section is unconstitutional being in violation of the constitutional right to trial in due course of law.

Counsel for the Attorney General submitted that s 63(3) provides merely for the reception of certain evidence and that it remains open to the accused to counter the effect of such evidence in any number of ways: that the weight (if any) to be attached to the document rendered admissible by s 63(3) remains at all times a matter for the trial judge. Counsel submitted that s 63(3) does not purport to shift the legal burden of proof. Further, it was argued that the challenge to the validity of the section must fail in view of case law. Unlike the position in Maher v Attorney General [1973] IR 140, where the statute in issue s 44 Road Traffic Act, 1968 purported to make a certificate of blood or urine alcohol concentration "conclusive evidence" that the concentration was as specified, s 63(3) does not purport to make any document decisive or conclusive evidence. It was submitted that it was incorrect to suggest that s 63(3) should not be interpreted as enabling an accused to be convicted without having an opportunity to cross-examine his accuser. It was submitted that where the contents of a certificate are put in issue it is clear that the Court in which the prosecution is being conducted retains the power to require the attendance of the persons involved to give oral evidence (and be cross-examined) and that it must be presumed that the Court will adopt this course where it is appropriate to do so to ensure that the constitutional rights of the accused are vindicated. Reliance was placed on Hardy v Ireland [1994] 2 IR 550 O'Leary v Attorney General [1993] 1 IR 102 (High Court), [1995] 1 IR 254 (Supreme Court); Lennon v District Judge Clifford and Anor (Unreported 23 May 1996); O'Callaghan v District Judge Clifford and Anor [1993] 3 IR 603. Counsel concluded that the assertion that s 63(3) is unconstitutional has no substance.

The Section

Section 63 sub-s (1) creates the offences of obstructing or impeding the Court, the Director or an equality officer in the exercise of powers under Part V of the Bill, or failing to comply with a requirement of the Court, Director or an equality officer. An equality officer includes a person authorised by the Director or the Chairman under s 58(1)(a). The constitutional issue arises on s 63(3). That subsection refers to "any proceedings for an offence" under the section; that is a criminal trial. It relates to:

"a document purporting to be certified by the Director or to be sealed with the seal of the Court"

and thus plainly stated includes documents relating to circumstances whether or not the Director (in the case of his purported certification) had direct knowledge of the information being certified or not. The subsection defines the content of the document as:

"relating to the circumstances in which the offence is alleged to have occurred".

The words are clear and all-embracing. They do not refer to peripheral matters. They do not refer to scientific or technical issues. On the face of the section and in the plain meaning of the words they refer to all the circumstances in which the offence is alleged to have occurred, the whole case.

Article 38.1

Article 38.1 of the Constitution states:-

"No person shall be tried on any criminal charge save in due course of law".

Trial in due course of law includes the constitutionally protected concept of the right to have a fair trial. A trial in due course of law is one wherein the rights of the individual are protected and yet they may be limited in a fair and just way for the benefit of society. In Re the Criminal Law (Jurisdiction) Bill v 1975, [1977] IR 129 O'Higgins CJ said of Article 38.1:

"The phrase "due course of law" requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society".

The subsection raises a fundamental matter wider than either the presumption of innocence or the shifting of an evidential burden of proof. It concerns the essence of a constitutional criminal trial. Historically trials, whether in summary form or on indictment, have proceeded viva voce although documentary evidence and inferences therefrom may be part and parcel of the trial. It is a fundamental principle in our system that, in general, criminal trials are conducted on viva voce evidence. In In Re Haughey [1971] IR 217 at p 261 O'Dalaigh CJ stated:-

"In a criminal trial, evidence must be given orally; a statute may authorise otherwise . . ."

Whereas viva voce evidence is the norm in the majority of cases, proof by written statement is allowed in certain circumstances but with the consent of the accused, and, in other cases, certificates may provide prima facie evidence of specific issues of a scientific or technical nature. Such limitation of viva voce evidence is reasonable in circumstances where the nature of the evidence is, for example, technical and by its form appropriate in a certificate, as such form means that, for example, many technicians and officials are not required to be called to Court in each case. A reasonable balance is obtained.

Counsel for the Attorney General relied on case law for their proposition that the section is constitutional. However, the cases they relied upon may be distinguished from the issues in this case.

Precedent

In Hardy v Ireland at issue was section 4 sub-s 1 of the Explosive Substances Act, 1883, which provides that any person who

". . . knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he . . . does not have it in his possession or under his control for a lawful object, shall, unless he can show that he . . . had it in his possession or under his control for a lawful object, be guilty of felony . . ."

In analysing section 4, sub-s 1 of the Explosive Substances Act, 1883, Hederman J stated at p 564:

"In my judgment, in a trial alleging an offence under the section the prosecution has to prove beyond reasonable doubt (I take the basic ingredients contained in the section and I leave aside alternate wording):-

(1) That the accused knowingly had in his possession a substance which it proves is an explosive substance;

(2) that he had it under such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession for a lawful object and that, in turn, means that there is an onus on the prosecution to prove that the accused could not show that he had it in his possession for a lawful object.

Once these ingredients are in place, it is still open to the accused to demonstrate in any one of a number of ways, such as by cross-examination, submissions or by giving evidence, that a prima facie situation pointing to his guilt should not be allowed to prevail.

I believe that this analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of law. That constitutional requirement applies whether the offence is made an offence under a pre-or post-constitutional enactment. It protects the presumption of innocence; it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn from those facts and I include in that the entitlement to do this by way even of documentary evidence. What is kept in place, however, is the essential requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has proved its case beyond all reasonable doubt."

This case is distinguishable from the situation under the proposed section 63 sub-s (3). The evidential burden of proof did shift to the accused. But the elements of "knowingly" in his "possession", the proof of an explosive substance, the circumstances giving rise to a reasonable suspicion of it not being in possession by the accused for a lawful object, were highlighted by Hederman J and have not comparable components in the proposed situation under s 63(3). Also, the very nature of the offence of possession of explosives places it in a special category.

The conclusion that once certain facts are established that inferences may be drawn from documentary evidence does not provide a precedent for the proposition where it is proposed that an entire case be proved by way of a certificate. To hold that there may be documentary evidence from which inferences may be drawn is not to say that the proof of a case may be by certificate.

In O'Leary v Attorney General at issue was the constitutionality of s 24 of the Offences Against the State Act, 1939 which states:-

"On the trial of a person charged with the offence of being a member of an unlawful organisation, proof to the satisfaction of the court that an incriminating document relating to the said organisation was found on such person or in his possession or on lands or premises owned or occupied by him or under his control shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation at the time alleged in the said charge".

The Plaintiff claimed in that case that since he, like every other person accused of a criminal charge, had a right to the presumption of innocence which right was constitutionally protected, the section infringed that right and was unconstitutional. The Supreme Court recognised that in certain instances the evidential burden of proof shifts to the accused. However, O'Flaherty J stated at p 226:

"Courts, whether comprising a judge sitting with a jury or a judge or judges only, will not act as automatons in the assessment of evidence. With a statutory provision setting out what is to be regarded as evidence -- and whether it is called a presumption or not is of no moment -- the Court must always approach its task in a responsible manner and have proper regard to the paramount place that the presumption of innocence occupies in any criminal trial".

The above case is an authority on the shifting of the evidential burden of proof. However, it does not address the issue raised by s 63 of an entire case, the circumstances of the offence, being proved on a single certificate where the certifying person may have been informed of the incident only and not have been a party thereto. Indeed, it speaks to the very antithesis of such a circumstance in its reference to "automatons".

Counsel also submitted that O'Callaghan v District Judge Clifford was an authority for their argument. This is not so. In the O'Callaghan case the sole issue was the adjournment of the case: there was no decision on the constitutionality of offences prosecuted by way of certificate. Finlay CJ stated at p 614:-

"Having regard to that decision and to the fact that the appeal before this Court was determined on the issue indicated in the judgment which has just been delivered by Mrs Justice Denham, it does not become necessary for this Court to enter upon any consideration of the constitutional validity of s 94, sub-s 9 of the Finance Act, 1983. It has not done so. It does not give any decision on that question".

Consequently, contrary to the argument of Counsel for the Attorney General, the cited case law is no aid to their submissions.

Due Process

The essential question posed is whether it is constitutionally valid to have a case of the nature proposed conducted and concluded on the basis as provided in s 63(3). It is proposed to apply the certification process to a criminal trial on issues of obstructing or impeding named bodies as well as to the matter of failing to comply with a requirement of named bodies. The question of whether there has been an obstruction or an impeding of a body or whether there has been a failure to comply with a requirement of a named body are issues likely to give rise to sharp conflict of evidence. They are also matters totally distinct from issues either scientific or technical or other such capable of or amenable to prima facie proof by certification.

These issues of "circumstances" are not amenable to resolution by certificate, much less a certificate in the purported form. The idea that a criminal trial could proceed from beginning to end concluding with a verdict of guilty on the production of a document is inconsistent with the concept of trial in due course of law. The use of a certificate as proposed in s 63(3) is to do more than prove evidence of certain technical matters by certificate. It is a document which may be certified by a person with no personal knowledge of or involvement in the events in issue. It purports to relate to all the facts of the offence. No other evidence may be anticipated.

Proof by way of certification is an interference with the norm of a trial viva voce. A certificate is an appropriate form of proof when it is proportionate to the ends to be achieved. It is a justifiable method of proof when the process is, for example, of a technical nature and there are other issues before the Court.

It is a question of whether the constitutionally guaranteed right to trial in due course of law has been interfered with and if so whether it has been limited in a reasonable and justifiable manner appropriate to the circumstances. It is clear that in s 63(3) there is an interference with the right to a trial in due course of law. The issue is whether the intrusion is constitutional.

The objective of the legislation is a laudable social policy. However, nothing inherent in that policy or in the nature of the legal rights granted by the legislation renders it necessary to have the remedy in the form proposed. It is neither rational nor necessary to so limit the right of due process to achieve the objective of the legislation.

In effect a form of proportionality test must be applied to the proposed section. (a) Is it rationally designed to meet the objective of the legislation? (b) Does it intrude into constitutional rights as little as is reasonably possible? (c) Is there a proportionality between the section and the right to trial in due course of law and the objective of the legislation? A similar test was used by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103 and Chaulk v R [1990] 3 SCR 1303. Applying this test to s 63(3) it is clear that s 63(3) is not specifically designed to meet the objectives of the Bill. The process is not rationally connected to the objective. The process of certification is an intrusion into the constitutional rights of an accused, yet there is no rational reason why trial by certification process is necessary in this type of case. Thus, there is no proportionality between the process of trial by certification and the objective of the Bill and the limitations of the right to trial in due course of law. The objective of equality in employment does not require that the offence in issue be tried by the method set out in s 63(3). The intrusion, the interference in the due course of law, is not limited in a rational way. Or to put it a slightly different way, s 63(3) when read in the context of the Bill is a failure to protect the constitutional rights of the citizen and not warranted by the objectives which it is sought to secure: See Cox v Ireland [1992] 2 IR 503 at p 523.

The use of such a certificate is so contrary to the concept of affording a person a trial in due course of law as to render the provision contrary to Article 38.1 of the Constitution. Accordingly, on this ground, the Court finds the provision repugnant to the Constitution.

INVIOLABILITY OF THE DWELLING

It was submitted by counsel assigned by the court that s 58 of the Bill was repugnant to Article 40.5 of the Constitution which provides that:

"The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law."

Section 58(2)(a) empowers a "designated officer" ie the Director of Equality Investigations, the chairman of the Labour Court, an Equality Officer or a person authorised in that behalf by the Director or the Chairman

"at all reasonable times, peaceably [to] enter premises."

This may only be done for the purpose of enabling information to be obtained which the Director or the Labour Court may require to enable them to exercise their functions under Part V of the Bill. The power may only be exercised in the case of a dwelling where, under s 58(4), either the Minister (or an authorised officer of the Minister) certifies in writing that there are reasonable grounds for believing that there is in the dwelling information which is material to the investigation of a case or a consideration of an appeal under Part V or the Circuit Court makes an order to the same effect. These provisions do not authorise any search to be made of the premises so entered.

The only provision for a forcible entry of any premises, including a dwelling, is where a judge of the District Court is satisfied by information on oath of a designated officer that there is reasonable cause for suspecting that any records, books, documents or other things containing material information are to be found on the premises and the judge issues a search warrant.

The Court is satisfied that these provisions confer powers on the Director, the Labour Court and the Minister which are reasonably necessary to enable them to carry out investigations for the purpose of enforcing the relevant provisions of the Bill and, authorising as they do the forcible entry of a dwelling house only where a court issues a search warrant on the basis of sworn evidence, are not repugnant to Article 40.5 of the Constitution.

THE RIGHT TO SILENCE

It was further submitted by counsel assigned by the court that s 59(3) of the Bill which imposes a duty on persons required to attend before the Director or the Chairman of the Labour Court,

"(a) to answer fully and truthfully any questions put to them by the Director or the Chairman (other than any question tending to incriminate the person asked);

(b) if so requested by the Director or the Chairman to sign a declaration of the truth of their answers to any such questions"

was repugnant to Article 40.3 of the Constitution as failing to protect an unenumerated right of the citizen, ie the privilege against self incrimination.

As is clear from the opening words of s 59(1), the powers given to the Director or the Labour Court under this Section are conferred on them so as to enable them to exercise their functions under Part V of the Bill.

The Court is satisfied that they are reasonably necessary in order to enable the Director and the Labour Court to exercise those functions and, having regard to the express saver contained in subsection 3(a), do not in any way encroach on any privilege of the citizen against self incrimination. The court is accordingly satisfied that the provisions in question are not repugnant to the Constitution.

Remaining Provisions of the Bill

The Court has considered the remaining provisions of the Bill and is not satisfied that it has been established that any of them is repugnant to the Constitution or to any provision thereof.

Conclusions

The decision of the Court, therefore, is that the provisions of the Bill hereinbefore indicated are for the reasons stated herein repugnant to the Constitution.

The President will be so informed.

I certify this to be the judgment and decision of the Supreme Court pronounced on the 15 May 1997.