About this case:

• Citation:
  [2022] IESC 19
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Marie Baker

Further, it was held that the Commissioner for Information’s function was inextricably linked to the judicial process and that an application to receive documents from the Council of State or the Secretary to the President was a collateral attack on presidential immunity under Article 13.8.1 of the Constitution.

Background

In 2017, Right to Know CLG made two requests for information and documents from the President of Ireland and the Council of State. The first request sought all information relating to two speeches from the President on climate issues. The second request sought all information held by the Council of State relating to the consideration of the Planning and Development Bill 1999.

In both cases, the Secretary General to the President refused to provide the documents and information. It was claimed that the President was not a public authority for the purpose of the AIE Regulations and, pursuant to Article 13.8.1 of the Constitution, could not be compelled to furnish the information.

The AIE Regulations permit members of the public to seek access to environmental information and allow the public to seek redress when environmental law was infringed. Right to Know appealed to the Commissioner for Environmental Information. It was submitted that Article 3(1) required Member States to make provision for access to environmental information on request from public authorities and that Article 2(2) allowed a Member State to exclude bodies or institutions from such access.

However, it was claimed that no such exclusion had been expressly provided for under the transposed domestic legislation. Accordingly, it was submitted that the OSGP and Council for State were amenable to environmental information requests.

The Commissioner determined that the President was immune from providing such information. It was held that the OSGP was not a public authority within the meaning of the AIE Regulations and relied on C204/09, Flachglas Torgau GmbH v. Federal Republic of Germany, ECLI:EU:C:2011:413 in support of this. Further, it was said that Ireland was competent to exclude the President from the AIE Regulations and no express provision was necessary for this.

In respect of the Council for State, the Commissioner held that it would undermine the constitutional immunity of the President if his administrative staff could be the subject of an AIE Regulation request. Right to Know appealed to the High Court, which allowed the appeal in part.

The trial judge held that express provision was required for the AIE Regulation to disapply to the President. The court therefore set aside the finding that the OSGP was not a public authority at the time of that request and remitted the matter to the Commissioner for him to consider the request in light of this conclusion. On the Council for State request, it was held that the Council assisted the President in his legislative function and accordingly was immune from the request.

Supreme Court

Both parties appealed the decision to the Supreme Court. Delivering judgment in the case, Ms Justice Marie Baker began by considering the constitutional functions of the President, the OSGP and the Council. It was held that the President largely maintained a ceremonial role under the Constitution and did not exercise executive or decision-making power. The participation of the President ordinarily lent formality and dignity to Government decisions, the court said.

It was noted that there was no such entity as the Office of the Secretary General to the President and that the Secretary General was merely a civil servant whose function was to advise and assist the President. The Secretary had no autonomous power or decision-making capacity and worked at the direction of the President.

Additionally, the Council for State only ever convened on the direction of the President. The President was required to consult with the Council when seeking to exercise certain powers, including an Article 26 reference. Again, the Council had no independent role or status outside of its advisory capacity to the President.

It was held that the President’s functions were “in no sense decision-making or policy-making functions, but rather operate at a constitutional level and as a reflection of domestic values and principles”. The President did not perform a legislative function under Article 26 or where he exercised his discretion to refuse to dissolve a Dáil.

The court held that the approach of the courts has been consistent with the clear terms of the constitutional immunity and when the issue has arisen, the courts had not assumed jurisdiction to make the President answerable in respect of any of his or her constitutional roles (see Haughey v. Moriarty [1999] 3 I.R. 1). The language of Article 13 was mandatory without any scope for doubt, the court said.

The appeal to the Commissioner was inextricably linked to the judicial process and the immunity of the President could not be circumvented by an action which amounted to an indirect enforcement (Kerins v. McGuinness [2019] IESC 11). The seeking of information from the Council and the Secretary amounted to a collateral attack on the President’s immunity. In substance, Right to Know were seeking to have the President answer for the performance of his functions and powers.

Ms Justice Baker then considered whether the President was required to provide the information based on the supremacy of EU law. The court determined that the President was not bound by the AIE Regulation because he/she was not involved in “government or other public administration.” Further, the President did not perform “public administrative functions” because he/she played no administrative role in the State and had no responsibilities or functions relating to the environment under domestic or European law (see Flachglas; Case C-470/19, Friends of the Irish Environment v. Commissioner for Environmental Information).

The court said that “EU law envisages that where the constitutional or legal provisions of domestic law exclude a review of a refusal to afford access to information, those national provisions can be accommodated within, and are not incompatible with the AIE Directive, provided the national excluding measure is clear and was in existence at the date of the adoption of the Directive” (Flachglas; Friends of the Irish Environment).

The immunity from suit under the Constitution for the President’s administrative or legal functions was very clear and it would have been unnecessary to make express provision for any such exemption in the national implementing measure (Case C-29/84, Commission v. Germany). The court said that “if a structurally superior constitutional immunity exists, legislation did not need to repeat it.”

Finally, the court noted that the key test for a “public authority” under the AIE Directive was the capability to make decisions which could affect the environment. The President had no such function.

Conclusion

The State’s appeal against the decision of the High Court was allowed in full. It was held that the President was not required to provide the information under the AIE Regulations/Directive due to his constitutional immunity under Article 13.