Right to Know CLG v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 29 April 2022
• Neutral Citation: [2022] IESC 19
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000067 High Court Record No. 2019/250 MCA

In the Matter of the European Communities (Access to Information on the Environment) Regulations 2007–2018

Between/

Right to Know CLG

Appellant/Respondent

and

Commissioner for Environmental Information

Respondent/Respondent

and

Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General

Respondents/Appellants

and

Office of the Secretary General to the President (OSGP)

Notice Party

[2022] IESC 19

O'Donnell C.J.

MacMenamin J.

O'Malley J.

Baker J.

Hogan J.

S:AP:IE:2021:000067

High Court Record No. 2019/249 MCA

High Court Record No. 2019/250 MCA

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Disclosure – Production of documents – European Communities (Access to Information on the Environment) Regulations 2007-2014 – Respondent appealing from the High Court’s refusal to compel production of documents by the Council of State – Whether the President was amenable to request under Directive 2003/4/EC

Facts: Two appeals were from the High Court judgment on a statutory appeal from the refusal of the respondent, the Commissioner for Environmental Information (the Commissioner), of requests made by the appellant/respondent, Right to Know CLG (Right to Know), for information and documents under the European Communities (Access to Information on the Environment) Regulations 2007-2014 (the AIE Regulations). On appeal to the High Court pursuant to Article 13 of the AIE Regulations, Barr J delivered one judgment governing both appeals by which he allowed the appeal in part: [2021] IEHC 273. The respondents/appellants, the Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General (the State parties), appealed to the Supreme Court from that part of the decision of Barr J. Right to Know appealed to the Supreme Court from the High Court’s refusal to compel production of documents by the Council of State. While the second question arose in a separate appeal, the parties had for convenience called that aspect of the appeal a “cross-appeal” as both appeals were heard together in the High Court and resulted in the single judgment of Barr J.

Held by Baker J that the appeal was answered by the presidential immunity from suit, that the President was not amenable to request under Directive 2003/4/EC (the AIE Directive) and the Regulations, and that, as a consequence of the immunity, the Court had no jurisdiction to engage the appeal from the decision of the Commissioner. Baker J also concluded that the President was not a “public authority” within the meaning of the AIE Directive and the Regulations. Baker J held that the Commissioner was correct to conclude that the amendments made by European Communities (Access to Information on the Environment) (Amendment) Regulations 2018 (S.I. No. 309 of 2018) did no more than restate the existing law.

Baker J dismissed the cross-appeal of Right to Know and allowed the appeal of the State parties; this had the effect that the decision of the High Court was overturned to the extent that it made any direction regarding disclosure by the President and/or the notice party, the Office of the Secretary General to the President.

Appeal allowed. Cross-appeal dismissed.

JUDGMENT of Ms. Justice Baker delivered on the 29th day of April 2022

Introduction

1 . At first glance it may seem strange that there is little or no judicial authority concerning the role of the President of Ireland or the place of the President in the constitutional order. There is also little case law on whether the President is subject to legal constraints capable of being enforced in appropriate legal proceedings.

2 . As will appear in the course of this judgment, the dearth of authority must be seen as a direct consequence of the broad and far-reaching immunity enjoyed by the President in the exercise of his or her constitutional roles. This judgment contains an analysis of the power of the President and concludes that the immunity from suit has the effect of precluding the High Court action from which the present appeal arises.

3 . Article 13.8.1° of the Constitution provides for presidential immunity in the performance by the President of the powers vested by the Constitution:

“The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.”

4 . In The State (Walshe) v. Murphy [1981] I.R. 275 Finlay P. for the Divisional High Court (Finlay P., Gannon and Hamilton JJ.) said as follows:

“… the terms of Article 13 s.8 sub-s. 1, cover not only the performance by the President of the powers and functions of his office and any act done by him in the exercise and performance of those powers but they also cover any act “purporting to be done by him” in the exercise and performance of those powers and functions”. (at p. 282)

5 . Central to these appeals is the nature of the constitutional immunity, although as may be noted from the title to the proceedings, and as I will later consider in detail, the President is not expressly named as a respondent.

6 . The appeals concern a request for information held by the President and his offices and by the Council of State. The legal status of the entity described in the title to the proceedings as the “Office of the Secretary General to the President” (“OSGP”) also arises, and in the second appeal, the legal status and the role and place in the constitutional order of the Council of State. The argument that EU law requires a relaxation of the immunity from suit enjoyed by the President for the purpose of the enforcement of EU rights to access to environmental information is also considered.

7 . The appeals are from the High Court judgment on a statutory appeal from the refusal of the Commissioner for Environmental Information (“the Commissioner”) of requests made by Right to Know CLG for information and documents under the European Communities (Access to Information on the Environment) Regulations 2007–2014.

8 . For ease, these Regulations will be referred to as the “AIE Regulations” but, for reasons that will become apparent, I propose separately to refer to the amendments made by European Communities (Access to Information on the Environment) (Amendment) Regulations 2018 ( S.I. No. 309 of 2018) which will be called “the Regulations of 2018”.

9 . On appeal to the High Court pursuant to Article 13 of the AIE Regulations, Barr J. delivered one judgment governing both appeals by which he allowed the appeal in part: [2021] IEHC 273.

10 . This is the appeal of the Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General (“the State parties”) from that part of the decision of Barr J., and also the appeal of Right to Know from the High Court's refusal to compel production of documents by the Council of State. While, strictly speaking, the second question arises in a separate appeal, the parties have for convenience called this aspect of the appeal a “cross-appeal” as both appeals were heard together in the High Court and resulted in the single judgment of Barr J.

Background facts

11 . Right to Know is a company limited by guarantee, with stated objects to improve, promote and advocate for increased rights of public information. The requests in the first appeal were for documents concerning two speeches given by the President of Ireland, and, in the second appeal, for certain records held by or on behalf of the Council of State concerning the Planning and Development Bill 1999, and s. 24 of the Housing (Miscellaneous Provisions) (No. 2) Bill 2001.

12 . There being no reply to the requests, on the basis of the deemed refusal of access, Right to Know sought an internal review, and when it then received no response it appealed to the Commissioner under Article 12 of the AIE Regulations.

13 . The Commissioner determined that the two applications for access to information should be declined on the grounds that the President, the OSGP and the Council of State were excluded from the AIE Regulations in the light of the immunity of the President contained in Article 13.8.1° of the Constitution.

The first request

14 . The information sought in the first appeal concerns two speeches given by President Higgins, and Right to Know requested the following:

The request was made on 9 February 2017 by e-mail, sent to the general information e-mail address for the President of Ireland as well as to the head of communication and information at Áras an Uachtaráin/Office of the President of Ireland. The email was also forwarded to Mr. Finín Ó Murchú, a press officer in the President's Office. The Commissioner accepted an appeal from the statutory deemed refusal of the President for the information. The broad response of the office of the President on that appeal was that the President is not a public authority for the purposes of the AIE Regulations, and was properly excluded from the definition of “public authority” under Article 2(2) of the AIE Directive and Article 13.8.1° of the Constitution, and could not be compelled to furnish the information.

• (i) A copy of all records – to include emails, memos, letters, briefing notes, draft speeches and so on – relating to a speech given by President Higgins in Paris, France in July 2015 at the Summit of Conscience for the Climate.

• (ii) A copy of all records – to include emails, memos, letters, briefing notes, draft speeches and so on – relating to an address given by President Higgins at the New Year's Greeting Ceremony in January 2016.

15 . The OSGP submitted that the President is also exempt from the definition of “public authority” under Article 3(2) of the AIE Regulations as he acts in a legislative capacity. Right to Know submitted that the...