Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: CEI/17/0033
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the OSGP was justified in refusing the appellant’s request for access to a copy of records relating to two Bills which were considered by the Council of State, including a copy of any communications between the Council of State and the President, minutes of the meetings of the Council of State and any submissions, memoranda and briefing notes prepared with regard to the Bills, on the basis that the OSGP is not a public authority for the purposes of the AIE Regulations
Note: The High Court delivered its judgment in Right to Know CLG v Commissioner for Environmental Information; Minister for Communications, Climate Action and the Environment; Ireland and the Attorney General and and Others [2021] IEHC 273 on 22 April 2021 in favour of the Commissioner.
On 21 June 2017 the appellant emailed the following request to the general information email address for the President, and to two officials at the OSGP:
"I am seeking the following records held by the Council of State:
- copies of any submissions, memoranda, briefing notes prepared with regard to the following pieces of legislation, which were considered by the Council of State: the Planning and Development Bill 1999, Section 24 of the Housing (Miscellaneous Provisions) (No 2) Bill 2001.
- copies of the minutes of the council meetings held with regard to the above pieces of legislation,
- copies of any communications between the Council of State and the President with regard to the above pieces of legislation
- copies of any operating documents or terms of reference prepared in relation to the meetings outlined above."
On 21 July 2017 the appellant requested an internal review on the basis of the deemed refusal of the original request. The appellant received an acknowledgement from an official at the OSGP to its internal review request but no further response was forthcoming.
On 4 September 2017 the appellant appealed to my Office on the basis of the deemed refusal of its request at both decision-making stages.
I regret the delay that arose in dealing with this appeal. This case, and other related cases before my Office, raised complex legal points which required careful and detailed consideration. The difficulties were further compounded by the legal developments which arose during the course of this case.
I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions of the parties and to:
· the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance),
· Directive 2003/4/EC (the AIE Directive) upon which the AIE Regulations are based,
· the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention), and
· The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide).
I have also had regard to Bunreacht na hÉireann ( [external-link https://www.gov.ie/en/publication/d5bd8c-constitution-of-ireland/?referrer=/DOT/eng/Historical_Information/The_Constitution/Constitution_ofIreland -_Bunreacht_na_h%C3%83%E2%80%B0ireann.html | the Constitution ] ).
What follows does not make comment or findings on each and every argument advanced but all relevant points have been considered.
The appellant contends that its request in this case was made to the Council of State and that this is the relevant body for the purposes of this review. I consider, however, that the request was made to the OSGP. I note that the request was emailed to the general information email for the OSGP and to two officials of the OSGP. I am therefore satisfied that the OSGP is the body concerned in this case.
Article 12(3) of the AIE Regulations provides for a right of appeal to my Office where a decision by a public authority has been affirmed under article 11, i.e. on internal review. Article 11(5)(a) of the AIE Regulations clarifies that a decision to refuse a request, which may in turn be appealed to my Office, includes a request that "has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations".
The OSGP submitted that it is excluded from the definition of public authority in the AIE Regulations. Accordingly, this review is concerned with the question of whether the OSGP is a public authority for the purposes of the AIE Regulations. For the sake of completeness, however, I will also address the status of the Council of State under the AIE Regulations.
The Constitution
Article 13.8 of the Constitution provides that:
"1° 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.
2° The behaviour of the President may, however, be brought under review in either of the Houses of the Oireachtas for the purposes of section 10 of Article 12 of this Constitution, or by any court, tribunal or body appointed or designated by either of the Houses of the Oireachtas for the investigation of a charge under section 10 of the said Article."
The AIE Regulations
Article 3(1) of the AIE Regulations provides that:
"'public authority' means, subject to sub-article (2)—
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),
and includes—
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held—
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 ( NAMA ), available at www.courts.ie, O’Donnell J. interpreted the structure of the definition of "public authority" as "reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them." Accordingly, clauses (i) to (vii) in article 3(1) do not extend the primary elements of the definition contained at paragraphs (a) to (c), which correspond to the definition of "public authority" as set out in Article 2(2)(a) to (c) of the Directive.
Article 3(2) of the AIE Regulations at the date the request was made, and when the appeal was made to my Office, provided that:
"Notwithstanding anything in sub-article (1), ‘public authority’ does not include any body when acting in a judicial or legislative capacity."
On 27 July 2018 the Minister for Communications, Climate Action and Environment signed S.I. No. 309/2018 - European Communities (Access to Information on the Environment) (Amendment) Regulations 2018 (the 2018 Regulations). The 2018 Regulations substituted article 3(2) with the following:
"Notwithstanding anything in sub-article (1), in these Regulations ‘public authority’ does not include—
(a) the President,
(b) the Office of the Secretary General to the President,
(c) the Council of State,
(d) any Commission for the time being lawfully exercising the powers and performing the duties of the President, or
(e) any body when acting in a judicial or legislative capacity."
The Explanatory Note to the 2018 Regulations states that:
"The purpose of these Regulations is to amend the European Communities (Access to Information on the Environment) Regulations 2007 to clarify the status of certain offices."
The AIE Directive
Article 2(2) of the AIE Directive provides that:
"'Public authority' shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b)."
The second paragraph of Article 2(2) of the AIE Directive provides that:
"Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition."
Article 6 of the AIE Directive provides that:
"1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.
2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.
3. Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this Article."
The Aarhus Convention
Article 2(2) of the Aarhus Convention provides that:
"'Public authority' means:
(a) Government at national, regional and other level;
(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;
(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;
(d) The institutions of any regional economic integration organization referred to in article 17 which is a Party to this Convention.
This definition does not include bodies or institutions acting in a judicial or legislative capacity".
OSGP’s Position
The OSGP submits that:
· Article 6 of the AIE Directive requires that applicants must have access to a review procedure before a court of law or another independent and impartial body.
· However, Article 2(2) of the AIE Directive provides that Member States may exclude institutions or bodies from the definition of "public authority" where national constitutional provisions make no provision for a review procedure of such institutions or bodies within the meaning of Article 6.
· Article 13.8.1° of the Constitution, which was in place at the time the AIE Directive was adopted, is one such constitutional provision as it precludes the President, the Council of State and the OSGP from being answerable to any court within the meaning of Article 6 of the AIE Directive.
· The President, the Council of State and the OSGP are therefore exempt from the definition of "public authority".
It submits that the President’s immunity under Article 13.8.1° of the Constitution extends to bodies which are integral to the Presidency, including the Council of State and the OSGP. It states that designating the OSGP as a public authority for the purposes of the AIE Regulations "would inevitably make the President answerable to the courts". It says that "[t]his would clearly cut across the provisions of Article 13.8.1° of the Constitution." It also states that a review by the Commissioner is just one step in an appeals process which leads to the High Court. It asserts that drawing the President into such an appeals process, including through cases relating to records held by the Council of State and the OSGP, could lead to a constitutional incongruence whereby the President could find himself or herself before a court to which he or she cannot be answerable for the performance of his or her powers and functions or would be unable to represent his or her interests in a process where the court is the final arbiter of how the system works.
It states that EU law does not require the OSGP and the Council of State to be included in the definition of public authority, as the President and his or her Presidential bodies "demonstratively meet the test of Article 2.2 of the Directive allowing for the exclusion from the definition of 'public authority'."
In addition, it states that the inclusion of Presidential bodies is discretionary under Article 2(2) of the AIE Directive; therefore, the decision to include such entities is not necessitated by the obligations of European Union (EU) membership. It says that "the State had discretion to transpose EU law in a way that did not cause unnecessary constitutional offence". It states that including the President, the OSGP and the Council of State in the definition of public authority would have been "a clear affront" to Article 13.8.1° of the Constitution.
It also states that the 2018 Regulations only clarified and made explicit that the President, the Council of State and the OSGP were always excluded from the definition of public authority. It states that it understood that the omission of such entities from the list of bodies specified for inclusion in the definition of public authority in article 3(1)(i) to (vii) of the AIE Regulations or "the indicative list" of public authorities published by the Department of Communications, Climate Action and Environment meant that the Irish State intended that they be excluded from the definition of "public authority".
The OSGP also submits that, as the President forms part of the Legislature pursuant to Article 15 of the Constitution and "acts in a legislative capacity", he or she is exempt from the definition of "public authority" under article 3(2) of the AIE Regulations and the second provision in Article 2(2) of the AIE Directive.
Appellant’s Position
The appellant submits that the status of the President is not relevant to this case. Notwithstanding this, it submits that the President is a public authority under article 3(1)(a) or 3(1)(b) or both (except when acting in a legislative capacity). The appellant states that the President is the Head of State and has certain powers under the Constitution. It accepts that the President forms part of the Legislature under Article 15 of the Constitution. However, the appellant rejects the claim that the President is acting in a legislative capacity in respect of the requested information on the basis the legislation that is the subject matter of the request has been passed by the Legislature. It cites the CJEU’s judgment in C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas), available at www.curia.europa.eu, in support of its position. It also denies that the information requested is on the powers and functions of the President as the information concerns consideration by the Council of State of proposed environmental legislation.
The appellant also submits that a right of appeal under the AIE Regulations does not conflict with Article 13.8.1° of the Constitution. It submits that:
· The Commissioner is not a court for the purposes of Article 13.8.1°.
· Article 13.8.1° does not exclude an administrative review of a decision under the AIE Regulations and that a review under Article 6 of the AIE Directive is not a review within the meaning of Article 13.8.1°.
· Article 13.8.1° only provides the President with partial immunity for the exercise of his or her powers and functions of his or her office or for any act done or purporting to be done by him or her in the exercise and performance of those powers and functions.
· A decision on an AIE request is an administrative decision and cannot be considered to be an exercise of the President's powers and functions as set out in the Constitution.
· A review under Article 6 of the AIE Directive does not concern the exercise and performance of the President’s powers and functions.
· The President would not have to participate in any such review.
In support of its position it cites State (Walshe) v Murphy [1981] 1 IR 275 (Walshe). It states that any request for information to the President, the Council of State or the OSGP could be handled administratively by the OSGP. It says that requests to Government Departments are handled by officials in the Departments and that there is never any suggestion that the relevant Minister would have to personally answer to a Court in relation to the request.
The appellant also asserts that the Council of State and the OSGP do not meet the criteria in the third provision of Article 2(2) of the AIE Directive that must be satisfied before a Member State can exercise this discretionary provision. It states that OSGP has been recognised as a public body for the purposes of the Freedom of Information Act 2014 (FOI Act). It contends that under the doctrine of equivalence Ireland cannot treat EU law rights less favourably than domestic rights. It concludes that the OSGP must, therefore, also be a public authority for the purposes of the AIE Regulations.
It also submits that Article 2(2) of the AIE Directive is a discretionary provision and that by not implementing it the Legislature decided not to exclude bodies or institutions for which Ireland's constitutional provisions do not provide for a review procedure. It states that "in deciding not to exercise the option [in Article 2(2)], the Oireachtas clearly intended that such bodies be included in the scope of what is a public authority." It also states, in reference to the Supreme Court’s judgment in NAMA, that the indicative list of public authorities in article 3(1)(i) to (vii) of the AIE Regulations "does not expand or limit the definition of public authority and each case must be considered with reference to articles 3(1)(a), (b) and (c) ".
In addition, it submits that the 2018 Regulations are invalid. It states that their provisions are contrary to the AIE Directive - in particular Article 2(2) of the Directive. It says that the provisions of the 2018 Regulations are not necessitated by the obligations of EU membership. It states that any reliance by me on the 2018 Regulations to refuse access to the information would breach its fundamental right of access to the information requested. In support of its argument, it again cites the Supreme Court’s judgment in NAMA. It also cites the CJEU's judgment in C-378/17 Minister for Justice and Equality and Commissioner of the Garda Síochána, available at www.curia.europa.eu.
Due to the number of arguments which have been made in this case, it is helpful to provide the following general summary of my main findings before setting out my detailed analysis:
· The information requested in this case is information on the powers and functions of the President, specifically the President’s legislative powers and functions under the Constitution.
· The President’s immunity under Article 13.8.1° of the Constitution extends to the Council of State and the OSGP in this instance and both bodies are excluded from the definition of public authority under the AIE Regulations.
Information on the Powers and Functions of the President
As noted above, the appellant asserts that the requested information is not information on the powers and functions of the President. I disagree.
The request in this case was for a copy of information relating to two Bills, specifically the Planning and Development Bill 1999 (the 1999 Bill) and section 24 of the Housing (Miscellaneous Provisions) (No.2) Bill 2001 (the 2001 Bill). The 1999 Bill was referred to the Supreme Court by the President under Article 26 of the Constitution. The Council of State was convened in respect of the 2001 Bill in 2002.
Article 15.1.2° of the Constitution defines the Oireachtas as consisting of the President and the two Houses of the Oireachtas. Article 15.2.1° of the Constitution confers sole and exclusive legislative power on the Oireachtas. The President exercises certain key powers and functions in the legislative process. These are largely detailed between Articles 22 and 27 of the Constitution. All legislation passed by both Houses of the Oireachtas must be presented to the President for signature and promulgation under Article 25 of the Constitution. The President may, only after a consultation with the Council of State, refer any Bill, other than a Money Bill, to the Supreme Court for a determination as to whether the Bill, or any of its provisions, is repugnant to the Constitution under Article 26 of the Constitution. The information requested in this case concerns two Bills in respect of which the President convened the Council of State for the purpose of consulting with the Council under Article 26 of the Constitution. I find that the information requested in this case is information on the President’s powers and functions of the President, specifically the President’s legislative powers and functions under the Constitution.
It is noteworthy that if it were possible to make a request directly to the President for similar information relating to the President’s constitutional legislative powers and functions to refer Bills to the Supreme Court under Article 26 of the Constitution, the President would likely fall under the exclusion for bodies acting in a legislative capacity in the second provision of Article 2(2) of the AIE Directive as transposed by article 3(2)(e) of the AIE Regulations. The circumstances of this case are distinguishable from those concerned in Flachglas. Flachglas concerned a Federal Ministry which is an executive body similar to a Department of State in Ireland, whereas the President forms part of the Legislature pursuant to the Constitution. I note that the Advocate General in her Opinion in Flachglas contrasted the position of such executive bodies with bodies which, on a structural definition, form part of the Legislature. The Advocate General stated, at paragraph 73, that there is no temporal limitation to the exclusion from the definition of public authority for bodies which form part of the Legislature as their activities in that capacity have no beginning or end in time.
However, the issue at the centre of this case is whether the President's immunity under Article 13.8.1° of the Constitution for the exercise and performance of his or her constitutional legislative powers and functions extends to include the OSGP and the Council of State and thus excludes these bodies from being subject to the review procedure under Article 6 of the AIE Directive in accordance with the third provision of Article 2(2).
The 2018 Regulations
Article 3(2)(b) of the AIE Regulations (as substituted by the 2018 Regulations) provides that the definition of public authority does not include the OSGP. Article 3(2)(c) of the AIE Regulations (as substituted by the 2018 Regulations) provides that the definition of public authority does not include the Council of State.
The AIE Regulations, including the 2018 Regulations, were made in the exercise of the power conferred by section 3 of the European Communities Act 1972 to give effect to the AIE Directive. The Recital to S.I. No. 133/2007 - European Communities (Access to Information on the Environment) Regulations 2007 (the 2007 Regulations) and to the 2018 Regulations, states that the Regulations were enacted for the express purpose of giving effect to the AIE Directive.
The Supreme Court in NAMA held, at paragraph 10, that in interpreting the AIE Regulations, it is not sufficient to have regard to national law and, in particular, the normal principles of statutory interpretation in Irish law. The AIE Regulations must be understood as implementing the provisions of the AIE Directive (and indirectly the Aarhus Convention) and, as a matter of constitutional law, ought not to go further (but not fall short of) the terms of the Directive. It stated that if, as a matter of domestic interpretation, the provisions of the AIE Regulations might appear to go further or fall short of what the AIE Directive requires, an Irish court might be required to adopt another interpretation which is consistent with the provisions of the Directive, if that is possible. Accordingly, the Court found that, in order to understand the AIE Regulations, it is necessary to understand exactly what the Directive does and means, which may also mean interpreting the provisions of the Aarhus Convention.
The Second Exclusion under Article 2(2) of the AIE Directive
In Case CEI/17/0017 (Right to Know CLG and the Office of the Secretary General to the President), available at www.ocei.ie, I found that the jurisprudence of the Advocate General and the CJEU in Flachglas makes clear that there are two distinct exclusions in Article 2(2). The first exclusion applies when a body is acting in a judicial or legislative capacity. The second may apply when a Member State’s constitutional provisions precluded a body’s decisions from the review procedure prescribed in Article 6 of the AIE Directive at the time the AIE Directive was adopted. As I observed in Case CEI/17/0017, the purpose of the second exclusion to the definition of public authority, as set out in the third provision of Article 2(2), is to permit a Member State such as Ireland to preserve its constitutional order including the separation of powers between the organs of government.
The President’s Constitutional immunity
In Case CEI/17/0017, I accepted that the President’s immunity under Article 13.8.1° of the Constitution excludes the President from the definition of public authority in article 3(1) of the AIE Regulations, as clarified by the amendment to the AIE Regulations by the 2018 Regulations. I also accepted that the exclusion of the President from the definition is consistent with the AIE Directive, specifically the third provision of Article 2(2).
I observed that Article 13.8.1° of the Constitution precludes the President from review by any court or under article 12 of the AIE Regulations. I considered that the President’s immunity from review by the courts necessarily extends to review by any administrative review body, especially where a decision could result in judicial proceedings against the President, as would have been the situation in Case CEI/17/0017. That would also be the situation in this case. I was satisfied in Case CEI/17/0017 that the participation of the President in the appeal process under the AIE Regulations would be inconsistent with the President’s immunity under Article 13.8.1° of the Constitution. As a result, I accepted that Article 13.8.1° of the Constitution precludes the President from the review procedure prescribed in Article 6 of the AIE Directive.
I find no basis for departing from my analysis in Case CEI/17/0017 in this case. Accordingly, I am satisfied that Article 13.8.1° of the Constitution precludes the President from the review procedure prescribed in Article 6 of the AIE Directive for the exercise and performance of the powers and functions of his or her office or for any act done or purporting to be done by him or her in the exercise and performance of his or her powers and functions.
The Office of the Secretary General to the President
In Case CEI/17/0017, I accepted that the OSGP, which is attached to the post of Secretary General to the President, both of which are attached to the constitutional office of the President, is integral to the exercise and performance of the powers and functions of the President. I noted that the OSGP was established to provide the President with the means necessary to carry out his or her powers and functions. I was satisfied that the President’s immunity under Article 13.8.1° of the Constitution necessarily extends to include the OSGP when it is providing the President with the means necessary to carry out his or her powers and functions. I noted that a finding to the contrary would in effect mean that President’s immunity is limited to the person of the President. I also noted the constitutional position of a Minister and the Minister’s Department of State differs from that of the President and the Office established to provide the President with the means necessary to carry out his or her powers and functions. I further noted that the facts in Case 170151 (Ms X and The Office of the Secretary General to the President), available at www.oic.ie, were distinguishable from those in Case CEI/17/0017. The facts in Case 170151 are also distinguishable from those in this case. I found that in the circumstances of Case CEI/17/0017 the OSGP was excluded from the definition of public authority in accordance with Article 13.8.1° of the Constitution, as explicitly clarified by article 3(2)(b) of the AIE Regulations. I further found that article 3(2)(b) was consistent with the AIE Directive, specifically the third provision of Article 2(2).
I have found above that the information requested in this case relates to the President’s constitutional legislative powers and functions, specifically the President’s power to refer Bills to the Supreme Court under Article 26 of the Constitution. It seems to me that, if the information is held by the OSGP, the OSGP only holds the information requested in its capacity of providing the necessary administrative support to the President in carrying out his or her powers and functions. I consider that compelling the President’s officers to be answerable to me in a review under article 12 of the AIE Regulations, which is capable of leading to judicial proceedings before the courts, in respect of information relating to the exercise and performance of the President’s powers and functions, would be inconsistent with the President’s immunity pursuant to Article 13.8.1° of the Constitution.
For the reasons above, I find that insofar as the information requested relates to the exercise and performance of the President’s powers and functions that the President’s immunity for the exercise and performance of the powers and functions of his or her office or for any act done or purporting to be done by him or her in the exercise and performance of his or her powers and functions under Article 13.8.1° of the Constitution extends to include the OSGP. I am also satisfied that in the circumstances of this case the OSGP is excluded from the definition of public authority in article 3(1) of the AIE Regulations. Furthermore, in the circumstances of this case, I am satisfied that in explicitly excluding the OSGP from the definition of public authority, article 3(2)(b) of the AIE Regulations merely clarified this pre-existing legal situation and is thus consistent with the AIE Directive, specifically the third provision of Article 2(2). Accordingly, I find that the OSGP is not a public authority under the AIE Regulations for the purposes of this review.
Council of State
As noted above, article 3(2)(c) of the AIE Regulations excludes the Council of State from the definition of public authority in the AIE Regulations.
The Council of State is one of the organs of government established by the Constitution. Article 31.1 of the Constitution provides that:
"There shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council in relation to the exercise and performance by him of such of his powers and functions as are by this Constitution expressed to be exercisable and performable after consultation with the Council of State, and to exercise such other functions as are conferred on the said Council by this Constitution."
Article 32 of the Constitution provides that:
"The President shall not exercise or perform any of the powers or functions which are by this Constitution expressed to be exercisable or performable by him after consultation with the Council of State unless, and on every occasion before so doing, he shall have convened a meeting of the Council of State and the members present at such meeting shall have been heard by him."
Matters on which the President may consult with the Council of State are set down in the Constitution and include the President’s power to refer Bills to the Supreme Court. Article 26.1.1° of the Constitution provides that:
"The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or to any provision thereof."
The primary purpose of the Council of State is to aid and counsel the President on all matters on which the President may consult with it, including in relation to the reference of Bills to the Supreme Court under Article 26.1.1° of the Constitution. The information requested in this case relates to two Bills in respect of which the President convened the Council of State to aid and counsel him or her on pursuant to Article 26.
I accept that the President’s immunity for the exercise and performance of the powers and functions of his or her office or for any act done or purporting to be done by him or her in the exercise and performance of his or her powers and functions under Article 13.8.1° of the Constitution necessarily extends to include the Council of State. The constitutional power to refer a Bill (other than a Money Bill) to the Supreme Court for a determination as to its constitutionality is vested in the President. Under Article 13.8.1 of the Constitution the President is not answerable to any court for the exercise and performance of this duty. The constitutional duty of advising the President in relation to this legislative power and function is vested in the Council of State under Article 26 of the Constitution. A finding that the President’s immunity under Article 13.8.1° of the Constitution does not extend to include the Council of State would not only limit the President’s immunity to the person of the President but would undermine the Council of State’s constitutional advisory role to the President and, in my view, would interfere with the exercise and performance of the President’s powers and functions.
I note that Hamilton P. in O'Malley v An Taoiseach and The Attorney General [1990] I.L.R.M. 461 (O'Malley) cited Article 13.8.1° of the Constitution in refusing the application to prevent the Taoiseach from advising the President to dissolve Dáil Éireann. Hamilton P. stated that:
"The Constitution quite clearly gives the right to the Taoiseach to advise the President with regard to the dissolution of Dáil Éireann. The constitutional duty of dissolving the Dáil is vested in the President and he is not answerable to any court for the exercise and performance of this duty. The constitutional duty of advising the President in relation to this question is vested in the Taoiseach and in my opinion the Courts have no jurisdiction to place any impediment between the President and his constitutional advisor in this important matter, which is solely the prerogative of the President."
I am satisfied that due to the separation of powers between the organs of government I do not have jurisdiction to review any decision by the Council of State under article 12 of the AIE Regulations. To review any such decision would place an impediment between the President and his or her constitutional advisor, thereby interfering with the exercise and performance of the President’s powers and functions. I consider that compelling the Council of State to be answerable to me in a review under article 12 of the AIE Regulations, which is capable of leading to judicial proceedings before the courts, would be inconsistent with the President’s immunity for the exercise and performance of the powers and functions of his or her office or for any act done or purporting to be done by him or her in the exercise and performance of his or her powers and functions under Article 13.8.1° of the Constitution.
The appellant asserts that any request for information to the Council of State could be handled administratively by the OSGP. It states that requests to Departments are handled by officials in the Department and that the relevant Minister does not personally answer to the Court in relation to the request. However, the appellant’s argument fails to address the fact that Ministers are responsible for the performance and functions of their Department and that the decisions by officials in his or her Department are treated as decisions of the relevant Minister. Thus, while the relevant Minister does not personally answer to the Court in relation to requests, he or she is responsible for the request and any actions taken by the Department. In any event, the constitutional position of a Minister and the Minister’s Department of State differs from that the President, the Council of State and the Secretary General to the President who is the clerk of the Council of State.
While the Explanatory Note to the 2018 Regulations is not legally binding, I note that it states that the purpose of the Regulations is "to clarify the status of certain offices" under the AIE Regulations. It is likely that the Minister when enacting the 2007 Regulations did not envisage appeals against the President, the Council of State and the OSGP due to Article 13.8.1° of the Constitution. Presumably, it was considered that such clarification was needed as a result of this and other appeals which had been made to my Office. Thus, I accept that the Minister in making the 2018 Regulations clarified the pre-existing legal situation that the Council of State is excluded from the definition of public authority in article 3(1) of the AIE. Accordingly, I accept that article 3(2)(c) of the AIE Regulations (as substituted by the 2018 Regulations) confirmed the situation which was, and is, that the President’s immunity for the exercise and performance of the powers and functions of his or her office or for any act done or purporting to be done by him or her in the exercise and performance of his or her powers and functions under Article 13.8.1° of the Constitution extends to include the Council of State and is thus consistent with the AIE Directive in this case, specifically the third provision of Article 2(2).
For the reasons above, I find that the President's immunity in Article 13.8.1° of the Constitution extends to include the Council of State. I further find that the Council of State is excluded from the definition of public authority under the AIE Regulations, in accordance with 3(2)(c) of the AIE Regulations.
The Court in An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241 noted that it is open to me, as Commissioner for Environmental Information, to refer any question of law to the High Court pursuant to article 12(9)(a) of the AIE Regulations. At the time the decision in this case was appealed to me, my Office considered whether it was necessary to make a referral to the High Court in this, and other cases which raised similar issues, under article 12(9)(a) of the AIE Regulations. However after reviewing all the submissions in this case and the enactment of the 2018 Regulations, I concluded for the reasons outlined in this decision that it was not necessary to exercise my discretion.
The appellant submitted that I ought to take into account the judgment of the CJEU in C-378/17 Minister for Justice and Equality and Commissioner of the Garda Síochána, available at www.curia.europea.eu. I have considered that case and am satisfied that it is distinguishable from the circumstances in the current case for the reasons set out above in my analysis of the relevant legal provisions.
Having completed my review, I find that, in the circumstances of this case, the OSGP and the Council of State are excluded from the definition of public authority pursuant to Article 13.8.1° of the Constitution and article 3(2)(b) and (c) of the Regulations, and thus, neither is a public authority for the purposes of the Regulations. Accordingly, the OSGP was not obliged to process the appellant’s request and I have no further jurisdiction in relation to this matter.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall, Commissioner for Environmental Information