Right to Know not entitled to papers before Council of State when advising President on Bills

Environmental Information Commissioner must reconsider whether background material for President’s speeches should be provided

A High Court judge has ruled the Right to Know group is not entitled to get documents which were before the Council of State, the council's minutes or its communications with President Michael D Higgins when advising him whether two Bills should be referred to the Supreme Court.

However, Mr Justice Anthony Barr directed the Commissioner for Environmental Information to reconsider whether the group is entitled to be provided with background material in relation to two speeches made by the President, one in Paris in 2015 at the Summit of Consciences of the Climate and the second at the New Year's greeting ceremony in January 2016.

Right to Know CLG, which campaigns for greater transparency, appealed to the High Court after failing to get the information following two separate requests to the Office of Secretary General (OSG) to the President.

In a judgment on Thursday, Mr Justice Barr found RTK was not entitled to be given documents before the OSG and the Council of State (COS) in relation to the latter’s consideration whether two Bills – the Planning and Development Bill 1999 and the Housing (Miscellaneous Provisions) (No. 2) Bill 2001 – should be referred to the Supreme Court.

The commissioner had refused to direct the OSG to provide the speeches' background material on the basis the OSG was entitled to the same immunity given to the President under Article 13 of the Constitution, which provides the President is not answerable to the Oireachtas or courts.

The judge overturned the commissioner’s separate decision the OSG was not required to provide the speeches’ background material, and he directed the commissioner reconsider the matter in line with the court’s findings.

EC directive

The main issue for the High Court was whether the commissioner was correct in holding the OSG was excluded from the definition of a “public authority” provided for in the 2003 EC directive on public access to environmental information.

That involved considering whether Article 2.2 of the directive required the government to take a step to formally exclude the President and his staff from the ambit of the directive or whether their immunity under Article 13 meant they were automatically excluded from the ambit of the directive.

The judge said, "curiously", when Ireland was transposing the directive into Irish law it made provision in the 2007 transposing regulations for one exemption provided for in Article 2.2, that a public authority does not include any body when acting "in a judicial or legislative capacity".

However, Ireland did not include in the transposing regulations any provision for another exclusion specifically provided for in Article 2.2, the exclusion of all persons and bodies in member states whose decisions enjoy immunity from review under the constitutional provisions of the laws of the member states at the time the directive was adopted.

He said the directive states member states “may exclude” certain persons, meaning member states had an option to make that category of exclusion if they chose to do so.

Because Ireland did not avail of that option, the President and the Council of State are “public authorities” within the meaning of the directive, he held. The directive and implementing regulations of 2007 must prevail as regards the pre-existing immunity enjoyed by the President under Article 13.8, he further said.

Public authority

Because the relevant exemption was not sought by Ireland, the commissioner was wrong in finding the OSG was not a public authority in relation to the request for access to the background material to the two speeches made by the President, he held. The OSG was a public authority at the time of that request, he held.

However, the commissioner correctly decided that RTK was not entitled to the materials relating to the COS’ consideration of the two Bills.

He held a Bill does not become law until signed by the President, and therefore seeking advice from the COS clearly comes within the legislative process. That meant the COS and the OSG, in relation to the materials sought concerning the consideration of the Bills, came within the exemption Ireland provided for in the 2007 regulations.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times