Garvey v Ireland

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 09 March 1979
• Docket Number: [1978 No. 981P]
• Date: 09 March 1979

Garvey v. Ireland

Edmund P. Garvey

Plaintiff

and

Ireland and Others

[1978 No. 981P]

High Court

Supreme Court

Statute - Interpretation - Office holder - Removal from office - Natural justice - Fair procedures - Removal by Government authorised by pre-Constitution statute - Arbitrary removal not prohibited in terms - Whether such removal prohibited otherwise - Police Forces Amalgamation Act, 1925 (No. 7), s. 6, sub-s. 2 Constitution of Ireland, 1937, Articles 40, 50.

Section 6, sub-s. 2, of the Act of 1925 (as adapted) provides that the Commissioner of the Garda Síochána shall be appointed by the Government and that, while holding that office, the Commissioner "may at any time be removed" by the Government. The plaintiff was duly appointed to the office of Commissioner on the 2nd September, 1975. On the 15th December, 1977, the Minister for Justice informed the plaintiff of certain complaints that had been made against him; the plaintiff replied to the Minister in writing and orally on the 21st and 22nd December respectively. The plaintiff alleged that on the latter occasion he was informed that it was probable that an inquiry would be held to investigate the complaints. On the 19th January, 1978, a letter was delivered to the plaintiff in which he was informed by the Government that he was removed from the office of Commissioner as from that date, unless he resigned within two hours of the receipt by him of the letter. The plaintiff, who had not been informed that his removal from office was being considered, refused to resign his office. The plaintiff brought an action in the High Court in which he claimed (inter alia) a declaration that, in exercising the power of removal conferred by s. 6, sub-s. 2, of the Act of 1925, the Government was bound to comply with the requirements of natural justice and of constitutional justice or, in the event of the Government not being so bound, a declaration that the provisions of that sub-section were inconsistent with the provisions of the Constitution and had not been continued in force pursuant to Article 50 of the Constitution. At the trial of preliminary points of law which arose from the issues created by the defence of the defendant members of the Government, it was

Held by McWilliam J., in ruling the points of law, 1, that the relationship between the Government and the plaintiff was equivalent to that between a master and a servant under a contract of employment which was intended to endure for an indefinite period.

2. That, accordingly, that relationship could be terminated by the Government without cause only by giving the plaintiff reasonable notice of the termination or by paying him an appropriate sum of money in lieu of such notice; and that a termination of the relationship by the Government for cause should have been preceded by the plaintiff being informed of the nature of the allegations made against him and being given an opportunity to answer those allegations.

3. That, in any event, the same result followed from the provisions of the Constitution which required that the Government should act justly in exercising the power of removal conferred by s. 6, sub-s. 2, of the Act of 1925.

On appeal by the defendants, it was

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), in disallowing the appeal, 1, that the plaintiff was the holder of an office and was not employed under a contract of employment.

2. (Kenny J. dissenting) That the guarantee of fair procedures provided by Article 40, s. 3, of the Constitution applied to the exercise by the Government of the power of removal conferred by s. 6, sub-s. 2, of the Act of 1925.

3. (Kenny J. dissenting) That the purported removal of the plaintiff was void since the Government had not informed the plaintiff of the reason for his removal and had failed to give him an opportunity to make representations in that behalf.

Cases mentioned in this report:—

¹ Attorney General v. Dublin United Tramways [1939] I.R. 590.

² Byrne v. Ireland [1972] I.R. 241.

³ Attorney General v. Ryan's Car Hire Ltd. [1965] I.R. 642.

⁴ The State (Gleeson) v. Minister for Defence [1976] I.R. 280.

⁵ McGee v. The Attorney General [1974] I.R. 284.

⁶ Glover v. B.L.N. Ltd. [1973] I.R. 388.

⁷ McDonald v. Bord na gCon [1965] I.R. 217.

⁸ Murtagh Properties v. Cleary [1972] I.R. 330.

⁹ In re Haughey [1971] I.R. 217.

¹⁰ East Donegal Co-operative v. The Attorney General [1970] I.R. 317.

¹¹ Ridge v. Baldwin [1964] A.C. 60.

¹² Greene v. McElroy (1959) 360 U.S. 474.

¹³ Willner v. Committee on Character (1963) 373 U.S. 96.

¹⁴ Ex p. Garland (1867) 4 Wall. 333.

¹⁵ Goldsmith v. Board of Tax Appeals (1926) 270 U.S. 117.

¹⁶ Wieman v. Updegraff (1952) 344 U.S. 183.

¹⁷ Carolan v. Minister for Defence [1927] I.R. 62.

¹⁸ The State (Quinn) v. Ryan [1965] I.R. 70.

¹⁹ Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180.

²⁰ In re Tilson [1951] I.R. 1.

²¹ Bagg's Case (1615) 11 Co. Rep. 93b.

²² R. v. University of Cambridge (1723) 1 Str. 557.

²³ R. v. Darlington School Governors (1844) 6 Q.B. 682.

²⁴ Willis v. Childe (1851) 13 Beav. 117.

²⁵ Dean v. Bennett (1870) L.R. 6 Ch. 489.

²⁶ Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578.

²⁷ Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482.

²⁸ Kodeeswaran v. Attorney General of Ceylon [1970] A.C. 1111.

²⁹ Darley v. The Queen (1846) 12 Cl. & F. 520.

³⁰ R. (Fitzmaurice) v. Neligan (1884) 14 L.R.Ir. 149.

³¹ R. (Riall) v. Bayly [1898] 2 I.R. 335.

³² R. (Jacob) v. Blaney [1901] 2 I.R. 93.

³³ R. (McMorrow) v. Fitzpatrick [1918] 2 I.R. 103.

³⁴ R. v. Fox (1858) 8 E. & B. 939.

Trial of Point of Law.

The plaintiff, Edmund Garvey, who had been appointed Commissioner of the Garda Síochána by the Government in September, 1975, pursuant to s. 6, sub-s. 2, of the Police Forces Amalgamation Act, 1925, was called upon by the Government, on the 19th January, 1978, to resign from the post of Commissioner on the same day. When he declined to do so, he was served with notice of the Government's intention to remove him from office forthwith, also pursuant to s. 6, sub-s. 2. of the Act of 1925.

Section 5 of the Act of 1925 provides:—

"(1) On and from the commencement of this Act the Dublin Metropolitan Police and the Gárda Síochána shall be amalgamated and form one force (which force is in this Act referred to as the amalgamated force), and it shall thenceforward be lawful for the Executive Council to train, equip, pay, and maintain such amalgamated force as a police force in Saorstát Éireann éireann.

(2) The amalgamated force shall be called and known as the Garda Síochána."

Section 6 of the Act provides:—

"(1) The person who at the commencement of this Act holds the office of Commissioner of the Gárda Síochána shall upon the commencement of this Act become and be the Commissioner of the amalgamated force.

(2) Subject to the provisions of the foregoing sub-section, the Commissioner of the amalgamated force shall from time to time be appointed by the Executive Council, and every Commissioner of the amalgamated force, whether holding that office by virtue of an appointment under this sub-section or by virtue of the foregoing sub-section, may at any time be removed by the Executive Council."

Sub-section 2 of s. 7 of the Act of 1925 makes provision, identical to that made in respect of the Commissioner by s. 6, sub-s. 2, of the Act, for the appointment and removal of the deputy-commissioners, assistant-commissioners and surgeon of the amalgamated force. The powers and duties of the Executive Council of the Irish Free State (Saorstát Éireann éireann)passed to the Government of Ireland by virtue of Article 28, s. 2, of the Constitution of Ireland, 1937, which provides:— "The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government." Article 40, s. 3, of the Constitution provides:—

"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."

Article 50, s. 1, of the Constitution provides:— "Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

The plaintiff instituted proceedings in the High Court against Ireland, the various members of the Government, and the Attorney General. The members of the Government sued as defendants were the Taoiseach (Prime Minister), The Tánaiste (Vice-Prime Minister) and Minister for Finance and Public Service, the Minister for Health and Social Welfare, the Minister for Fisheries, the Minister for Posts and Telegraphs and Tourism and Transport, the Minister for Agriculture, the Minister for Industry, Commerce and Energy, the Minister for Defence, the Minister for Justice, the Minister for Foreign Affairs, the Minister for the Environment, the Minister for Labour, the Minister for the Gaeltacht, the Minister for Education and the Minister for Economic Planning and Development.

Paragraphs 12 and 13 of the plaintiff's statement of claim ran as follows:—

"12. The plaintiff claims that having regard to the provisions of the Police Forces Amalgamation Act, 1925, s. 6, and to the provisions of the Constitution of Ireland, the Government of Ireland are required to observe the rules of natural justice and of constitutional justice before removing from office the Commissioner of the Garda Síochána. He further claims that it was an...