The High Court has dismissed a challenge by an Army captain over the appointment of the captain of the guard in Leinster House.
Capt Alan Kearney, who is based at the Curragh training camp base logistics in Co Kildare, had sought an order quashing the decision of the Commission of the Houses of Oireachtas (CHO) on November 26th last not to proceed with his nomination to the post.
On Thursday, Mr Justice Cian Ferriter ruled he had not made out a case for any of the reliefs he sought over the decision.
His proceedings were against the CHO, An Taoiseach, who makes the final decision on the appointment, the Minister for Justice and the State.
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They were also against the Garda Commissioner who allegedly had failed, refused or neglected to process Capt Kearney’s security clearance for the job in a timely and expeditious manner.
The captain of the guard performs a sensitive security role and certain ceremonial duties in the Oireachtas. The court heard an injunction preventing the position being filled was lifted to allow it to be held interim basis pending determination of Capt Kearney’s case.
Capt Kearney claimed the decision not to proceed with his candidacy was in breach of fair procedures and his constitutional right to his good name. He further said his rights had been breached by virtue of the CHO and gardaí engaging in a secret, undisclosed security-clearance process.
The respondents denied his claims.
The judge said Capt Kearney applied for the position, was interviewed and told in March 2021 that he was the preferred candidate subject to various security checks including Garda clearance.
That process identified that he was the subject of an ongoing military police investigation into suspected criminal offences concerning Army ammunition, the judge said.
The CHO took the view in November 2021 that clearance had not been forthcoming and it would terminate his candidature for the position. In December 2021, the gardaí confirmed in writing to the CHO that it was not in a position to give him security clearance.
Mr Justice Ferriter, in his judgment, said while it was agreed Capt Kearney’s case was justiciable by way of judicial review, it seemed to him that there must be real limits to a court’s entitlement to intervene in such a recruitment process in this way.
This is so because, apart from certain possible exceptions, no rights are engaged per se in such a recruitment process. Capt Kearney had not been induced to forgo any existing benefit or entitlement in order to compete in the process, he said.
The judge also found there had been sufficient discharge of any obligations of transparency which the CHO may have had in the process.
His complaint as to lack of transparency or some fundamental unfairness in process simply did “not get off the ground”, the judge said. There had been no capriciousness or arbitrariness involved, he said.
He did not accept Capt Kearney’s characterisation of the denial of security clearance as being as a result of some form of shadowy process of innuendo.
The fact that there had been a security clearance process in addition to Garda vetting was a “manifestly sensible step” to take in respect of such a security-sensitive public-service position, he said. It could not be, on an any reasonable view, regarded as representing a new and unauthorised eligibility criterion for the position.
There was also “simply no evidence” substantiating his serious allegation that the gardaí had somehow tried to interfere with the CHO’s decision-making. He found no such interference had occurred.
The judge found there was no basis for the contention that his right to his good name had been infringed in the recruitment process or the decisions underpinning it.
He also said his case in relation to alleged data-protection breaches in relation to him by the CHO had not been made out on its own terms.
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