The High Court ruled that SOLAS could not require a shotfirer to self-assess or undergo assessment of practical experience as a condition of renewing registration cards issued under the 2008 quarries regulations or the 2013 construction regulations.
Mr Justice Richard Humphreys delivered the judgment on 24 April 2017 in a case brought by Fergal O’Connell against SOLAS. The court made a declaration limited to experience-related self-assessment or assessment since the previous grant or renewal of the card.
O’Connell had completed the required training, obtained the relevant FETAC awards and received registration cards. His awards were not time-limited, the court recorded, while the cards were issued for five years. SOLAS introduced a revised renewal policy on 17 January 2017, requiring cardholders to certify they had completed at least six blasting operations in the previous two years. SOLAS said it would audit declarations, and those who did not meet the experience requirement would need reassessment.
The judge found that the regulations specified a single requirement for registration: the relevant qualification. They did not authorise SOLAS to add ongoing experience, self-certification, audit or assessment conditions. The judgment distinguished holding a qualification from being currently competent to perform shotfiring work. It said competence was a separate requirement under the regulations, with enforcement primarily a matter for the Health and Safety Authority.
The court rejected SOLAS’s argument that occupational safety objectives implied a power to impose ongoing checks. The judge said that deciding whether such assessments should be required, and which body should conduct them, involved policy choices for the legislature and minister. The regulations could be amended to provide for such a regime, but the court could not add it. The judgment also said SOLAS could limit a card’s duration for a reasonable period to ensure its photograph remained current; that did not give it an unrestricted power to refuse renewal when an updated photograph was supplied.
SOLAS also raised objections concerning standing, mootness and the plaintiff’s earlier proceedings against FÁS. The judge rejected them, finding the challenge concerned a current renewal regime capable of recurring and addressed issues distinct from the earlier case. The damages claim had been withdrawn, and the requested injunction was unnecessary because the substantive issue was being decided.
The declaration did not determine whether O’Connell or other cardholders were competent to carry out shotfiring work. It addressed SOLAS’s authority to impose the specified renewal conditions under the regulations then in force.