Garvey v Ireland

JudgeKENNYJ.:,Henchy J.
Judgment Date09 March 1979
Neutral Citation1978 WJSC-SC 1422
Date09 March 1979
Docket Number264/78
CourtSupreme Court

1978 WJSC-SC 1422


O' Higgins C.J.

Hency J.

Griffin J

Kenny J.



JUDGEMENT delivered the 9th day of March 1979by O'HIGGINS C.J.(Parke J. concurring


The Plaintiff in these proceedings was on the 2nd September 1975 appointed by the Government to the office of Commissioner of the Garda Sfochdna. On the 19th January 1978 the Government removed him from office. Both his appointment to office and his removal there from were made by the Government in purported exercise of powers conferred on the Executive Council of Saorstat Eireann by Section 6(2) of the Police Forces (Amalgamation) Act 1925. No question arises or could arise as to the Government being the successor in title to and capable of exercising all the functions and powers of the former Executive Council. Subsequent to his removal from office the Plaintiff commenced these proceedings against Ireland, the Government and the Attorney General in which he claims certain declarations and orders. When pleadings in his action wereclosed, and arising there from, it transpired that two preliminary questions or issues arose for determination. These were detailed in correspondence between the parties as follows:-


2 "1.Does the Police Forces (Amalgamation) Act 1925empower the Government of Ireland to terminate the office of the Commissioner of the Garda Slochdna at any time:-


(a) without prior notice


(b) without giving reasons


(c) without giving the holder of the office an opportunity of making representations thereto.


2. Are the provisions of Section 6 sub-section (2) of the Police Forces (Amalgamation) Act 1925inconsistent with the Constitution of Ireland".

High Court Decision

As a result it was agreed that these preliminary questions should be considered in the High Court prior to the further hearing of the Plaintiff's action. They were so considered by Mr. Justice Me William who concluded in favour of, what I shall term, the Plaintiff's contention, that the Act in question did not empower the Government to remove from office the Commissioner without prior notice, without giving reasons and without giving him an opportunity of makingrepresentations in relation thereto. Having so decided in favour of the Plaintiff's contention he was further of the view that Section 6(2) of the Act was on that account not inconsistent with the Constitution. Prom this decision the Defendants have appealed to this Court. By their Notice of Appeal they seek a declaration in favour of what I shall term the Defendants" contention that the Police Forces (Amalgamation) Act 1925does empower the Government to terminate the office of the Commissioner of the Garda Sfochana without prior notice, without giving reasons and without giving the holder an opportunity of making representations in relation thereto. The Defendants also seek a declaration that Section 6(2) of the Act construed in accordance with their contention is consistent with the Constitution.


I interpolate at this stage to say that the words "terminate the office of the Commissioner of the Garda Slochdna" are used in the correspondence setting out the preliminary questions, in the Order appealed from and, in the Defendants" Notice of Appeal. What appears to be in issueis "the removal from office of the Commissioner of the Garda Sfochana" and I so understand the words actually used.


Following the serving of the Notice of Appeal a Notice to Vary has been served by the Plaintiff in which he seeks a declaration, in the event of the Police Forces (Amalgamation) Act 1925being held to empower the Government to act in accordance with theDefendants" contention, that Section 6(2) thereof is inconsistent with the Constitution.

Inconsistency of Section not considered in High Court

As I have indicated, Mr. Justice McWilliam, having construed the Police Forces (Amalgamation) Act 1925as only empowering the Government to act as contended for by the Plaintiff, was further of the view that so construed no question of an inconsistency with the Constitution arose. It followed that the question of the possible inconsistency of Section 6(2) of the Act with the Constitution, if the Act empowered the Government, as contended for by the Defendants, was neither considered nor decided by him. This Court being a court of appeal is always reluctant to entertain in the course of an appeal questions which havenot been considered or decided in the High Court. For that reason the arguments on this appeal have been confined substantially to a consideration as to what powers are in fact given to the Government by the Act and how these may be exercised. If in the view of this Court theDefendants" contention is correct then the question of whether, being so construed, Section 6(2) of the Act is or is not consistent with the Constitution must go back for consideration and determination by the High Court.

Rules of Natural Justice

I turn now to a consideration of the issues involved in this appeal. The Plaintiff's claim is based primarily on what in our common law is termed the principles of natural justice. These, shortly stated, are that an adjudication be disinterested and unbiased (nemo iudex in causa sua) and that a person judged be given adequate notice and an opportunity to be heard (audi alteram partem).The application of these principles to the different situations which competing interests in society create has never been capable of precise definition. For that reason theyhavebeen criticised and even rejected by those who believe precise definition to be the sina qua non of true law. They came to be. recognised, however, at a time when society was emerging from the rule of might and force and when men looked for the protection of their rights in the moral sphere of justice and fairness. Natural justice, imprecise though the term may be, was something which came to be regarded as each man' protection against the arbitrary use of power. De Smith in his "Judicial Review of Administrative Action"says.

"[Natural justice] expresses the close relationship between the common law and moral principles, and it has an impressive ancestry. That no man was to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca's Medea, enshrined in the Scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Book to the law of Nature, asserted by Coke to be a principle of Divine Justice and traced by an eighteenth-century judge to the events in the Garden of Eden."


Whatever its true origin be and however imprecise itsprinciples, there can be no doubt that the concept of natural justice is part and parcel of the common law which we inherited from England. In this case the Plaintiff claims that he was entitled to natural justice and that he did not get it.

Natural Justice and Termination of Employment

For the purposes of this Judgment it is not necessary to trace in any detail the circumstances in which the rules of natural justice have been held to apply where a termination of employment is involved. From the beginning a clear distinction was drawn between servants and office holders. As the law implied into a contract of service the proper grounds for summary dismissal, every servant so dismissed had a possible claim for breach of contract because of his dismissal. Accordingly the grounds for his employer's action had to be disclosed and to be judged by the court which heard the claim. There was, therefore, no need for the application of the audi alteram partem rule since the nature of the proceedings and the court itself guaranteed this. With office holders, however, things couldbe different. Many office holders removable for cause could be so removed at the discretion of the employing authority - that authority exercising the right to act on what it alone regarded as sufficient cause. In such oases, since the right to remove from office could not be questioned, it became important to ensure that what was done was done fairly. Accordingly, audi alteram partem was applied to test not the right to remove the office holder but the manner of its exercise. In recent decades, however, the once clear line of distinction between servant and office holder has become blurred and increasingly unreal. This has come about as the result of the creation, sometimes by statute, sometimes otherwise, of particular offices, the statute or instrument in question specifying both the grounds for removal, the manner in which such should be determined and the rights to be accorded to the office-holder. In such cases the holder's right to question what was done may depend not on natural justice but on the particular statute or instrument and upon whether the specified grounds were established and the proper procedure observed. [SeeLord Reid in Ridge v. Baldwin 1964 A.0.40 at 65; Lord Wilberforce in Malloch v. Aberdeen Corporation 1971 1 W.I.R. 1578 at 1596 and Walsh J. in Glover v. B.L.N. Ltd. 1973 I.R.388 at 422]. Natural justioe continues to be the sole protection available to the office-holder removable for cause where the grounds for such removal are determinable by the board or body that removeshim.

Offices held at Pleasure

Here, however, another distinction must be noticed. As this, teaching of the common law was first practised in the Courts of England some hundreds of years ago [see Bagg's Case 1615 11 Co. Rep. 93b; R.v.Chancellor of the University of Cambridge (1723) 1 Str.557],immediate regard had to be had to the most numerous office-holders of all -those who held office at the will and pleasure of the Crown. Since the King could do no wrong and could not be made to answer in his Courts it was early established...

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