Court told of Howlin U-turn over gardaí

Minister for Public Expenditure Brendan Howlin made a sudden U-turn when he unexpectedly decided to include gardaí with other public servants in new sick leave regulations after a senior trade union official threatened to ballot their members, it was claimed in the High Court yesterday.

In a legal challenge by the four bodies that represent members at various ranks of An Garda Síochána, High Court president Mr Justice Nicholas Kearns was told members of the force had initially been informed they would be excluded from the new regulations.

As part of the new regulations sick leave on full pay has been reduced from six months to three.

The Garda representatives claim that there were separate negotiations going at the time about such matters as they affected the force and they had a right to expect nothing would happen until these negotiations were complete.

Barrister Fechin McDonagh, SC, for the garda representative bodies, said information revealed that Minister Howlin changed his mind after Shay Cody, general secretary of Impact trade union, threatened to ballot his members if the gardaí were not included.

When Judge Kearns said that very serious statements were being made in relation to Mr Cody, who was not a party to nor represented in court, Mr McDonagh said it was not suggested Mr Cody had done anything unlawful.

However, Mr McDonagh said it was inappropriate for the Minister to take Mr Cody’s views into account when considering whether or not to include gardaí in the scheme.

Implementation

The case against the Minister concerns the implementation of provisions of the 2014 Public Service Management (Sick Leave) Regulations which reduce public service sick leave entitlements and were introduced in April.

The garda representative bodies claim the regulations were brought in without proper consultation and are irrational and incomprehensible.

They claim the enactment of the regulations was outside the powers of the Minister, breached fair procedures and that they had a legitimate expectation nothing would be done until negotiations between the Department and garda representatives were completed.

In a statement of opposition the Minister says he was fully entitled to introduce the new regulation designed to ensure savings of public monies. The Minister claims the cuts are needed to increase productivity and lower the cost of sick pay to the public sector.

The garda bodies, who say the regulations will cause hardship to their members, had sought a derogation from the regulations.

Yesterday in a sworn statement to the court PJ Stone, general secretary of the Garda Representative Association (GRA) said he was “gravely concerned” by matters that had recently come to light which showed the Minister had not acted in an open or transparent manner.

He said documents obtained as part of the discovery process showed that on the December 2nd, 2013 an email had been sent from the Department of Public Expenditure to the Department of Justice indicating gardaí would not be included in the new sick leave scheme.

Mr Stone said further email correspondence between Department of Public Expenditure officials on December 4th meant that Shay Cody would “ballot his members” if the Garda were excluded.

Other emails stated Cody was “very strong on all this unravelling” and that he was concerned about the personal reputational impact the exclusion of the gardaí might have for him. This was because Cody had consistently said the gardaí would be included. Mr Stone said what was “abundantly clear” from the emails was the key issue in reversing the decision to exclude gardaí was “the completely inappropriate threat by Shay Cody” and the importance ascribed by him and the Department to Cody’s personal reputation.

Mr Stone said the fact these matters were only recently revealed, displayed a failure by the Minister to adhere to his legal obligation to have all the cards “face up on the table.”

Mr Stone added it was “quite extraordinary” that the only relevant documentation concerning the consideration given by Mr Howlin to the Garda Síochána’s position were the emails sent by civil servants.

No notes

There were no notes or memos of any meetings at which the issue of garda exclusion from the scheme were discussed. There was “virtually no reference in the emails to any meetings taking place at all” he said.

Mr Stone also said that in advance of the Minister’s decision “the department was intent on avoiding giving any serious consideration” to what were detailed and comprehensive representations made on behalf of gardaí on the sick pay issue.

He said that during this period a very senior official in the Department of Public Expenditure had described a most reasonable query on the issue from an official in the Department of Justice “as bullshit”.

The case, which is expected to last for a number of days, continues today .