Supreme Court to rule later on appeal over Shatter's successful challenge to Guerin report
The Supreme Court has reserved its judgement on barrister Sean Guerin’s appeal over Alan Shatter's successful challenge to sections of Mr Guerin's report concerning the former Justice Minister’s handling of complaints of Garda whistleblower Sgt Maurice McCabe.
The appeal is against a Court of Appeal decision that "seriously damaging" “conclusions” in the report were reached in breach of Mr Shatter's rights to fair procedures and natural and constitutional justice.
The appeal court declined to quash the disputed sections, saying that was a matter for negotiation between Mr Shatter and the government that commissioned the report.
The report was given to then Taoiseach Enda Kenny in May 2014 who later published it. Mr Shatter (pictured arriving at court today) resigned after the Taoiseach said he could not express confidence in the then Minister.
Mr Shatter was in court for the one-day appeal hearing on Thursday. Mr Justice Donal O’Donnell, presiding over the five-judge court, said it was reserving judgment.
In arguments for Mr Guerin, Paul Gallagher SC argued Mr Shatter was not entitled to take proceedings against Mr Guerin over a “scoping exercise” report which involved no “conclusions”. The matter was non-justiciable, he submitted.
To allow any minister sue over a scoping report commissioned by government would be a “recipe for mayhem” concerning how government operates, counsel said. A government would face “significant difficulties” if someone asked by it to produce a report, sometimes within a very short period of time on a matter of urgency and importance, could be later subject to judicial review.
There are daily instances in government where civil servants at different levels are asked to provide information to government which will “invariably contain criticism of someone”.
The idea of such reports being subject to judicial review creates a “huge impediment” for the government and the court should consider the future effect on any person asked to produce such reports, he urged.
This was “first and foremost a political issue” and Mr Guerin, a private person, was asked by the government, then including Mr Shatter, to compile a report for the purpose of a political decision being made, whether to establish a commission of inquiry.
The fact the report was published and that Mr Shatter resigned did not alter the position, he submitted. All of this was part of a “political process” and what happened were “consequences of political decisions and political choices”.
Opposing the appeal, Paul Sreenan SC, for Mr Shatter, said his case involved a “simple claim” his good name was attacked in the report without his being given the “most basic” right of fair procedures, the right to be heard. It was not about some asserted right to remain as Minister, he said.
There was no appeal over the Court of Appeal’s descriptions of the criticisms of Mr Shatter in the report as “gravely damaging” to Mr Shatter’s good name, he said.
The issue for the court to decide was whether his client’s constitutional rights were impermissibly infringed in a manner that gave rise to a right, and a duty, on the court to intervene.
The report was a “formal” report by an eminent senior counsel, not a political exercise, he said.
It involved Mr Guerin interviewing witnesses but while Mr Guerin met Sgt McCabe four times over 19 hours, he had not met Mr Shatter. Mr Guerin could have sought a meeting with the then Minister or put the proposed criticism to him and sought his response but he had not done so and had not explained why, counsel said.
Even after the Court of Appeal ruling of November 2016, the report remained on the Government’s website, counsel added.
Alan Shatter was not entitled to take legal proceedings against barrister Sean Guerin over a “scoping exercise” report which included criticism of the former Justice Minister’s handling of complaints by garda whistleblower Sgt Maurice McCabe, the Supreme Court has been told.
To allow any minister sue over a scoping report commissioned by government would be a “recipe for mayhem” concerning how government operates, Paul Gallagher SC , for Mr Guerin, said.
A government would face “significant difficulties” if someone asked by it to produce a report, sometimes within a very short period of time on a matter of urgency and importance, could be later subject to judicial review, he said.
There are daily instances in government where civil servants at different levels are asked to provide information to government which will “invariably contain criticism of someone”.
The idea of such reports being subject to judicial review creates a “huge impediment” for the government and the court should consider the future effect on any person asked to produce such reports, he urged.
Counsel was opening Mr Guerin’s appeal over Mr Shatter's successful challenge to sections of Mr Guerin's report concerning Mr Shatter’s handling of complaints of Sgt McCabe.
The appeal is against a November 2016 Court of Appeal decision allowing Mr Shatter's appeal against the High Court's rejection of his challenge, brought against Mr Guerin only, to the report.
The Court of Appeal held Mr Shatter’s constitutional rights were in jeopardy by reasons of "seriously damaging" “conclusions” Mr Guerin was proposing to include in his report and Mr Shatter should have been let respond before the report was given to the Taoiseach who later published it.
The Court of Appeal declared the disputed findings were reached in breach of Mr Shatter's rights to fair procedures and natural and constitutional justice but declined to quash them, saying that was a matter for negotiation between Mr Shatter and the government that commissioned the report.
The Supreme Court later agreed to hear an appeal by Mr Guerin.
A core issue is whether the Guerin report could ever have been subject to judicial review when Mr Shatter was a member of the government which sought the report from Mr Guerin, a private citizen, with a view to deciding whether to set up a commission of investigation.
Other issues concern the applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr Guerin.
Today, Mr Gallagher told the five judge court this was “first and foremost a political issue” and Mr Guerin, a private person, was asked by the government, then including Mr Shatter, to compile a report for the purpose of a political decision being made, whether to establish a commission of inquiry.
The fact that, on receipt of the report in May 2014, the then Taoiseach Enda Kenny decided he could not express confidence in Mr Shatter, who then resigned, did not make the report amenable to judicial review, he argued.
The report was “quintessentially political”, is non- justiciable “for all purposes” and the court should not ignore the consequences for government of finding otherwise, he urged.
“Government cannot operate in that way. If you have to go through a process every time you put something on paper and express a view, then government is not going to work.”
The fact the report was published and that Mr Shatter resigned did not alter the position, he also argued. All of this was part of a “political process” and what happened were “consequences of political decisions and political choices”.
Mr Justice Peter Charleton asked counsel was this not about “public fact finding” and did that not involve a need to “exercise restraint”. The judge also queried how the finding of facts in such reports is consistent with the Supreme Court court’s findings concerning the requirements for Oireachtas committees to adhere to fair procedures.
Mr Gallagher said the Guerin report did not include finding of fact but rather “expressions of opinion”. Even where there are findings of fact, that does not make such a report justiciable, he submitted. The person compiling a scoping report must have freedom to say how they interpret the material before them.
The appeal continues.
