The Supreme Court has unanimously dismissed an appeal over Alan Shatter’s successful challenge to sections of barrister Sean Guerin’s report concerning the former minister’s handling of complaints made by Garda whistleblower Sgt Maurice McCabe.
The five judge court made clear its findings do not rule out future “scoping” inquiries.
In this case, Mr Shatter got no notice of certain conclusions reached by Mr Guerin which were damaging to Mr Shatter’s reputation or any opportunity to respond to those, Mr Justice Donal O’Donnell said.
The “expression of conclusions” exceeded the scope of the preliminary inquiry Mr Guerin was authorised to carry out, he held. Had they been preceded by asking Mr Shatter for his views, it would not have been appropriate to grant any relief, he added.
He stressed he was “far from critical” of Mr Guerin who carried out his task with “great thoroughness and admirable expedition”.
The terms of reference of Mr Guerin’s inquiry were “not clear cut” and it would be “very desirable” in the future to have “absolute clarity” as to the legal nature of tasks to be performed.
The difficulty of Mr Guerin’s task was compounded by a “surprising lack of communication” within the Department of Justice, he added.
Mr Guerin appealed after the Court of Appeal held 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 report was commissioned by the government and given to then taoiseach Enda Kenny in May 2014, who later published it. Mr Shatter resigned as minister for justice after the taoiseach said he could not express confidence in him.
In separate judgments on Tuesday, Mr Justice O’Donnell , Mr Justice William McKechnie and Mr Justice Peter Charleton all dismissed the appeal but found in favour of Mr Shatter on a more narrow basis than the Court of Appeal had.
Ms Justice Elizabeth Dunne and Ms Justice Iseult O’Malley agreed with Mr Justice O’Donnell.
The court found the matter was amenable to judicial review and rejected arguments by Mr Guerin it was not.
It granted a declaration certain conclusions of Mr Guerin were made outside the scope of the task set to him and were not subject of any notice to, or representations by, Mr Shatter.
Those conclusions included comments by Mr Guerin that: “No complex organisation can expect to succeed in its task if it cannot find the means of heeding the voice of a member whose immediate supervisors held him in the high regard within which Sergeant McCabe was held.
“Ultimately An Garda Síochána does not seem to have been able to do that. Nor does the Minister for Justice and Equality, despite his having an independent supervisory and investigative function with specific statutory powers. The same appears to be true of GSOC, although this review is hampered in making any assessment in that regard by the fact that GSOC has not made documentation available.”
In his judgment, Mr Justice O’Donnell noted Mr Guerin was appointed to conduct a preliminary inquiry with a view to recommending to the government whether or not it should establish a commission of investigation and, if so, the matters for that investigation.
The appointment of an independent person to carry out such inquiry, to result in a report to be delivered to the Oireachtas and published more generally, involves an exercise of public law power and is not purely a private law matter, he said.
The conclusion a commission of investigation, or any further inquiry, is warranted does not amount to a final conclusion in relation to a person’s good name such as to itself require that fair procedures are afforded to such a person, he stressed.
Mr Guerin’s recommendation cannot be viewed as the “final word” in the process reflecting on the good name and reputation of any person and the O’Higgins Commission did in fact vindicate Mr Shatter’s reputation. That final determination was obliged to comply with fair procedures.
The fact Mr Shatter felt he was required to resign was not a reflection on the lack of fair procedures in the Guerin report but on the fact a taoiseach may dismiss a minister.
That could not be a basis for requiring a different procedure in respect of recommendations relating to persons in politics.
Mr Justice McKechnie said it would be a “total overread” of his judgment as preventing such scoping inquiries in the future but stressed respect for rights which attract legal or constitutional protection “must be adhered to”.
Mr Justice Charleton said the “damaging error” in Mr Guerin’s report would likely not have occurred had Mr Shatter been spoken to.
He stressed his judgment does not say such a step would be necessary in ordinary administrative investigations.
It was the exceeding of the boundaries of this preliminary exercise by Mr Guerin, coupled with a public declaration as to the stewardship of a government minister over his department, that was “the problem”.
