Riordan v Ireland

• Jurisdiction: Ireland
• Judgment Date: 21 July 2000
• Date: 21 July 2000
• Docket Number: [2000
• Court: Supreme Court

High Court

Supreme Court

[2000 267 J.R.; S.C. Nos. 175 and 181 of 2000]

Riordan v. Ireland

Denis Riordan

Applicant

and

An Taoiseach Bertie Ahern, The Government of Ireland, Minister for Finance, Hugh O'Flaherty and The Attorney General

Respondents

Cases mentioned in this report:-

Boland v. An Taoiseach [1974] I.R. 338; (1974) 109 I.L.T.R 13.

Buckley and others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67.

Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.LR.M. 400.

Quinn's Supermarket v. Attorney General [1972] I.R. 1.

The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

Constitution - Personal rights - Equality - Separation of powers - Whether guarantee of equality to citizens infringed by failure to advertise public post prior to nomination of candidate - Whether wishes of Government amenable to review - Constitution of Ireland, 1937, Article 40.1.

Judicial review.

The facts are summarised in the headnote and appear in detail in the judgment of Morris P., infra.

The third respondent nominated the fourth respondent to the post of vice-president of the European Investment Bank on the 12th May, 2000. Leave to apply for judicial review was granted by the High Court (Kelly J.) on the 2nd June, 2000.

The matter was heard by the High Court (Morris P.) on the 8th and 9th June, 2000.

The applicant appealed to the Supreme Court by notice of appeal filed on the 26th June, 2000. The first, second, third and fifth respondents filed a cross-appeal on the 28th June, 2000. The appeal and cross-appeal were heard by the Supreme Court (Keane C.J., Murphy, McGuinness, Geoghegan and McCracken JJ.) on the 17th July, 2000.

Article 40.1 of the Constitution provides:-

"All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

The applicant sought a declaration by way of judicial review that the Government's nomination of the fourth respondent for vice president of the European Investment Bank was a breach of his constitutional right to equality in that the post had not been advertised prior to the nomination. The applicant claimed that he had a right to an opportunity to apply for the post since the salary is paid by the tax payers of the European Union.

Held by the High Court (Morris P.), in dismissing the application 1, that the decision to nominate the fourth respondent for the post of vice president of the European Investment Bank was an executive decision and not an administrative procedure.

2. That the court would interfere with an executive decision where the decision interfered or threatened to interfere with an applicant's constitutional rights.

Boland v. An Taoiseach [1974] I.R. 338;Crotty v. An Taoiseach[1987] I.R. 713 considered.

3. That there was no obligation on the part of the Government to inform the public of any post that it wished to fill.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Keane C.J., Murphy, McGuinness, Geoghegan, and McCracken JJ.), in dismissing the appeal, 1, that it was not a breach of the applicant's constitutional rights for the Government to put forward the fourth respondent as a candidate for the vacancy in question and that the announcement by the third respondent to that effect was not in breach of the Constitution.

Boland v. An Taoiseach [1974] I.R. 338;Buckley and others (Sinn Féin) v. Attorney General and Another[1950] I.R. 67 considered.

2. That the most expansive construction of Article 40.1 of the Constitution could not support the proposition that the guarantee of equality required the executive to inform the public of the availability of any public service post before it indicated a preference as to how that post should be filled.

Quinn's Supermarket v. Attorney General [1972] I.R. 1considered.

3. That the declaration sought fell to be determined solely by reference to Irish national law and therefore there was no need for a referral under Article 234 of the Treaty of Rome to the Court of Justice.

Cur. adv. vult.

Morris P. 12th June, 2000

This matter comes before the court on foot of an order made on the 2nd June, 2000, whereby the applicant was given leave to apply by way of application for judicial review for a declaration that the method of selection of the nominee for appointment as vice president of the European Investment Bank is unfair, unjust and repugnant to Article 40 of the Constitution.

The grounds upon which this leave is given are stated in the order to be as follows:-

"The salary of vice president of the European Investment Bank is paid by the tax payers of the European Union.

As a citizen of the European Union and under Article 40 of the Irish Constitution, I have a right to the opportunity for applying for the position.

In the State (Quinn) v. Ryan [1965] I.R. 70 at p. 122 Ó Dálaigh ó dálaigh C.J. stated 'It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them and the courts' powers in this regard are as ample as the defence of the Constitution requires'.

My fundamental right as a citizen to have the opportunity to apply for a position that is paid out of public funds has not been vindicated by the process adopted by the respondents."

Before addressing the issues in this case I believe that it is appropriate to point out that two of the grounds upon which the applicant sought leave to seek judicial review centred around the suitability of the fourth respondent for the post for which he had been nominated by the Government and the suggestion that the motives for making these nominations were improper.

Submissions on these points might have been relevant if the applicant had obtained leave to seek judicial review on those grounds. However, he did not. Accordingly, these matters are of no relevance to the grounds upon which he has been given leave to seek judicial review and for that reason, on the objection of the respondents, I ruled against the applicant raising these matters during the hearing.

The structure and framework of the European Investment Bank has been concisely set out in the judgment of Kelly J. when leave was granted to the applicant to seek judicial review. It is unnecessary for me to do more than provide a broad sketch of this body. The European Investment Bank (E.I.B.) is a body established under the treaties of the European Communities. Its members are the member states of the European Union. The statute of the European Investment Bank is laid down in a protocol to treaties of the European Communities. The bank is governed by a Board of Governors, a Board of Directors and a Management Committee. The Board of Governors consists of members designated by the member states. The Management...