About this case:

• Citation:
  [2024] IEHC 374
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Barry O'Donnell

Delivering judgment for the High Court, Mr Justice Barry O’Donnell stated that “if the issue is one of statutory powers, then it is not clear why the Commission needed to rely on section 23(1C) of the 1995 Act. If the complaint as made required the Commission to act outside its statutory remit, it was prima facie inadmissible. On the other hand, if the complaint was admissible then it is not clear why the Commission considered that it would be unable to obtain sufficient evidence.”

Background

The applicant, a TD, issued judicial review proceedings concerning decisions made by Standards in Public Office Commission made in response to complaints by the applicant and others about the provision by then-Taoiseach Leo Varadkar of a confidential agreement negotiated between the Department of Health, the HSE and the Irish Medical Organisation (IMO) to the then-president of the National Association of General Practitioners (NAGP) in April 2019.

In November 2020, the applicant made a complaint to the Commission concerning Mr Varadkar’s actions. The decisions, recorded in a written report of November 2022, declined to appoint an inquiry officer to conduct a preliminary inquiry, and pursuant to s.23(1C) of the Ethics in Public Office Act 1995, declined to carry out an investigation.

The applicant sought an order quashing the Commission’s decision declining to carry out an investigation, a declaration that its decision was determined in a manner which breached the applicant’s right to fair procedures and natural justice, and an order remitting the matter to the Commission for reconsideration pursuant to Order 84, rule 27(4) of the Rules of the Superior Courts.

The applicant contended inter alia that the decision was reached in breach of fair procedures and in error of law, that the Commission erred in concluding that it was neither its function nor within its remit to determine the extent of the implicit executive functions of the office of the Taoiseach in the furtherance of the policy goals of government, and that the Commission failed to provide adequate reasons for its decisions.

The High Court

Mr Justice O’Donnell considered inter alia that the manner in which complaints should be investigated by the Commission is set out in s.23 of the 1995 Act and s.4 of the Standards in Public Office Act 2001, finding that s.23 “is not a particularly clear piece of drafting”.

The court highlighted that it is difficult to reconcile the seemingly mandatory language of s.23(1)(a) which states that the Commission shall investigate where a complaint is made under s.4, with s.23(1)(b) which states that where the Commission considers it appropriate to do so, it shall carry out an investigation as to whether a person did a specified act.

Having considered a range of Supreme Court authorities on the duty to give reasons and the relevant legislation, Mr Justice O’Donnell determined that “it is clear that in parallel with the general administrative law requirement for reasons to be given for a decision, in the case of the 1995 to 2001 Acts, the Oireachtas expressly requires the Commission to explain its decisions in writing. This can be taken as a reflection of the public interest considerations engaged by the Commission’s work, particularly in relation to section 4 complaints.”

Decision not to appoint an Inquiry Officer

Pointing out that there is no express obligation in s.6 of the 2001 Act on the Commission to utilise the services of an inquiry officer, the court confirmed that “to the extent that there is any obligation on the Commission to give reasons for a decision not to appoint an inquiry officer — and I am not satisfied that reasons are required — this is only as a part of a broader obligation to give reasons for or to explain a final decision”.

The judge found that the reason given for the decision not to appoint an inquiry officer, that the complaint was legally misconceived, was an adequate explanation which allowed the applicant to review that aspect of the decision and to permit the court to engage with the issues.

The court also considered no error of law occurred in that s.4(4) of the 2001 Act clearly provides for a discretion as to whether to request an inquiry officer where the Commission considers a complaint to be frivolous or vexatious, noting that the converse — being the absence of such a finding — “does not convert the ‘may’ into a ‘shall’.”

Decision not to carry out an investigation

Revisiting the statutory provisions and guidelines, the court observed: “Prima facie, the definition of functions provided by the Oireachtas has every appearance of placing the functions of the notice party as a member of the government within the remit of the Commission.”

Mr Justice O’Donnell considered the applicant’s argument that it was necessary for the Commission to set out the legal propositions upon which it was relying, and that insofar as there had been an implicit assertion that any investigation by the Commission would have trenched on executive powers exercised pursuant to Article 28 of the Constitution, the very least that was required was knowledge of what the Commission understood those implied executive functions to be.

Emphasising that there “is always a concern about the extent to which a decision-maker can or should disclose its own legal advice”, the judge decided that “in this case I consider that without waiving privilege it would have been open to the Commission to summarise the legal propositions that informed its decision on the executive powers issue. It simply is not clear how the Commission reached a conclusion that the matters that were the subject of the complaint fell outside its remit.”

The court agreed that this left the applicant in a position where he could not understand the decision and whether or not a full and proper challenge could be brought in respect of the findings on the extent of the Commission’s powers, noting inter alia that in light of s.23(1C) of the 1995 Act there was “further difficulty insofar as there is a potential tension between, on the one hand, finding that the complaint was outside the remit of the Commission — which suggests a conclusion that the matter was simply inadmissible — and, on the other hand, a decision that there would not be sufficient evidence to permit the Commission to carry out the investigation”.

Finding that the approach of the Commission rested on “a broad proposition” that its statutory remit did not extend to considering complaints requiring the investigation of acts by the Taoiseach said to be done in furtherance of the executive functions, not based on any purported constitutional requirement but presented “as flowing from the terms of the statute”, Mr Justice O’Donnell observed that “if the issue is one of statutory powers, then it is not clear why the Commission needed to rely on section 23(1C) of the 1995 Act. If the complaint as made required the Commission to act outside its statutory remit, it was prima facie inadmissible.”

Conclusion

Concluding that it was not for the court to “fill in the blanks” in the decision or to propose understandings that were not apparent on the face of the report, Mr Justice O’Donnell determined that the decision declining to carry out an investigation was inadequately reasoned and the applicant was entitled to an order quashing the decision, with the matter to be remitted to the Commission for further consideration.

Paul Murphy v The Standards in Public Office Commission & Ors [2024] IEHC 374