knowledge 28 October 2022 |

AIE appeal explores presidential immunity under the Irish Constitution

These were the opening remarks of Baker J in the recent Supreme Court case of Right to Know CLG v Commissioner for Environmental Information,¹ which concerned a request for environmental information under the AIE Regulations.²

In this case, a request for information was made to the Secretary General of the President and centred on documents relating to two speeches given by the President. A second request was made to the Council of State and concerned records held by it or on its behalf relating to certain planning and housing legislation. The President had referred the former to the Supreme Court under Article 26 of the Constitution to test its constitutionality and had considered referring the latter.

Ultimately, Baker J concluded that the presidential immunity from suit under the Constitution meant that the President was not amenable to a request for access to environmental information under the AIE Regulations. In addition, EU law did not require a judicial remedy from a refusal of the President to accede to such a request but was instead protective of domestic constitutional provisions.

She also concluded that the President was not a “public authority” within the scope of AIE Regulations or the underlying Directive. She said that the power to make decisions which affect or are capable of affecting the environment, or policy on the environment, was the key institutional and functional test here. The President did not have such a role. Only public authorities were required to make environmental information available under the legislation.

Immunity of the President

In considering the role of the President, Baker J first looked at the creation of the office of the President. She discussed the different roles of the President under the Constitution as well as the constraints on the President’s powers. She then turned to a consideration of the immunity of the President under Article 13.8.1°. This reads:

She said that the approach of the courts here had been consistent with the clear terms of the constitutional immunity and when the issue had arisen, the courts had not assumed jurisdiction to make the President answerable in respect of any of his or her constitutional roles. She said that the prohibition was stated in the broadest terms to provide immunity from suit “for the exercise and performance of the powers and functions of his office”. This was more than an immunity from a legal sanction or order but was a constitutional prohibition on any court analysis of, challenge to, adjudication upon, or order in relation to, the performance of the President’s functions.

Baker J went on to say that the People must be understood to have adopted a constitutional order that limited the courts from engaging in any form of scrutiny of the exercise by the President of his or her powers. That reflected the fact that the President had no power to affect, limit or enhance the rights of individuals or legal persons, and the President did not need to be answerable to the judicial branch of Government, precisely because he or she did not have such power.

She added that the language of Article 13.8.1° was expressed in clear mandatory terms and left no scope for doubt. She said that it was important to note the constitutional language: the President was not “answerable” to either House of the Oireachtas or to any court in respect of the performance or exercise of his or her duties, and this must mean that he or she was not open to scrutiny from those institutions, could not be called to account in respect of that performance, or be asked or compelled to answer questions in regard thereto. The only means by which a President could be called to account was by the Houses of the Oireachtas and only then by virtue of the impeachment process provided for under Article 12.10.

This made the President different from those other organs of State which exercised political, legislative or administrative power. It did not merely mean that the President was “above politics” but rather that it meant that he or she stood constitutionally in a role which was sui generis and outside those structures which were amenable to court interference.

Baker J said that the immunity could not be waived or opted out of at the discretion of the President. Its reach also extended to acts done by or on behalf of the President, for example, through his Secretary General or the Council of State who had received the requests for information here as an indirect means of requiring information from the President personally. In line with established domestic jurisprudence, the immunity of the President could not be circumvented by an action which would amount to an indirect enforcement. On this last point, she also noted that in relation to the AIE Regulations themselves, there was jurisprudence from the CJEU to say that a request for information could be impermissible if it indirectly had the effect of compelling compliance by an excluded body.³

Comment

Ultimately, for these reasons set out above, the appeal under the AIE Regulations could not succeed. The case is interesting for its analysis of the application of the AIE Regulations to the President but also for the wider analysis of the role of the President and the immunity that he or she enjoys under the Constitution.