New Appeal: Supreme Court grants second appeal on An Bórd Pleanála’s duty to give reasons for its decisions

In this determination (North Kerry Wind Turbine Awareness Group v An Bórd Pleanála ), the Supreme Court granted the North Kerry Group leave to appeal against the High Court’s (McGovern J) refusal to overturn An Bórd Pleanála’s grant of planning permission for a wind farm.

 

Background

In 2014, Kerry County Council refused the Notice Party planning permission to construct a wind farm. The Notice Party lodged an appeal with An Bórd Pleanála. Although the proposed development breached the county development plan, in 2016, the Bórd granted permission for the wind farm, stating reasons. The North Kerry Group issued judicial review proceedings in the High Court seeking to have the Bórd’s decision quashed. McGovern J (here) rejected that application and later refused the North Kerry Group’s application for leave to appeal under s 50 of the Planning and Development Act.

The North Kerry Group applied to the Supreme Court for leave for a leapfrog appeal. One of the grounds of appeal was that the Bórd failed to give adequate reasons for its decision. In Connelly v An Bórd Pleanála (post) the Court granted the Bórd leave to appeal against the High Court’s (Barrett J) quashing of its decision to grant planning permission for a wind farm, for failure to give adequate reasons for the decision. And in Holohan v An Bórd Pleanála, the High Court (Humphrey J) made a reference to the Court of Justice of the European Union on, among other issues, the duty of  a competent authority to give reasons for its decisions, subject to the Council Directive 92/43/EEC (Habitats Directive).

Granting leave, the Court stated:

9. … having regard to the decision of the Court to grant leave in the case of Connelly v An Bórd Pleanála (see [2017] IESCDET 57), and to the reference to the Court of Justice of the European Union in Holohan, the Court will grant leave to this applicant on the question whether in all the circumstances of the case the reasoning and analysis of the Board was sufficient.

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New Chief Justice lays out important priorities for the coming Legal Year.

Today, Ireland’s new Chief Justice, the Hon Mr Justice Frank Clarke, addressed an audience of senior judges, lawyers, the AG and representatives of the legal professions and the Courts Services. And he has called for the voice of the judiciary to be heard in the ongoing debates about Judicial appointments and a Judicial Council.

The full text of the Chief Justice’s speech is available here: 2017 New Legal Year Statement. The Courts Services’ press release highlighted a number of topics that the Chief Justice addressed:

 

Judicial Council and Appointments – wholly appropriate that judges make their views known

He said that, “the Judicial Appointments Commission Bill will undoubtedly bring about significant reform in the way in which judges are appointed. The Judicial Council Bill will, for the first time, provide a proper framework for judicial training and ethics. The judiciary has long supported the principle of both of those measures – recognising the need for reform”.

The Chief Justice stated, “ I know of no jurisdiction in the world where it is not considered reasonable and appropriate for judges to make their views known in an appropriate way, in relation to proposed legislation which actually affects the judiciary itself. Obviously this legislation has the potential to affect the judiciary in a very significant way and it is, in my view, wholly appropriate that judges make their views known while recognising, of course, that legislation is ultimately a matter for the Oireachtas”.

 

Access to Justice – certain types of litigation are beyond the resources of many …….. requires a radical reappraisal to identify better ways of doing things

In his statement for the coming new legal year, the Chief Justice outlined his and the judiciary’s priorities for the coming twelve months. Addressing an audience of senior judges, lawyers, the AG, and representatives of the legal professions and the Courts Service, Chief Justice Clarke said that,

“ there is little point in having a good court system, likely to produce fair results in accordance with law, if a great many people find it difficult or even impossible to access that system for practical reasons. I emphasise the practical because there are few formal legal barriers to access to justice in the Irish legal system. But it has increasingly become the case that certain types of litigation are beyond the resources of many”.

He in particular welcomed the thorough review of the Courts Civil Procedures – being overseen by a committee chaired by the President of the High Court – as some court rules go back as far as 1870. He said that “ of course the fact that rules are somewhat venerable does not mean that they are necessarily no longer fit for purpose, but the experience of new experiments, such as the commercial court, has demonstrated that it often requires a radical reappraisal to identify better ways of doing things”.

 

Funding our Courts System: more investment and better use of resources needed

The Chief Justice noted the significant cuts to court funding during the recession – a cut much deeper than that experienced by other areas of public service and more severe than of the justice agencies. He emphasised that any new funding sought needed to go hand in hand with the proposed review of procedures and any changes recommended by that review, and also that the €44 million generated in court fees, accounts for 58% of total current spending.

He said, “my second priority is to engage with government with a view, hopefully, to persuading those concerned that there is a need for a significant increase in the back-up facilities available to judges – but in doing so to make it clear that I do not see increased back-up as operating in isolation from the need for better use of resources as part of an integrated plan”.

“In the overall context of resources I hope to continue to explore means whereby the case for resources for the Courts, which are after all the third arm of Government established by the Constitution, can be put more directly to the final decision makers. We cannot expect to write our own cheque but we can seek the most effective way to have our case heard”.

 

Review of Supreme Court procedures – following three years of the reformed court…

The Chief Justice announced that the Supreme Court has established a small group consisting of himself, and two other judges – in conjunction with the registrar of the Supreme Court – to conduct a thorough review of the new procedures adopted by the court three years ago, and make recommendations for any changes. The group will consult with the practising professions, and hopes to conclude the process in time that any changes can be implemented with effect from 1st January next. The completion and implementation of this review represents his third important priority for the coming year.

 

Paperless Courts: Realising the use of Technology in the Courts …… Recovering from under-investment … Plan this year to have Supreme Court online filing:

The Chief Justice said that “where a body such as the Courts Service has to operate on significantly reduced financial resources, it is unfortunate, but inevitable, that areas which can be cut will be cut. I.T. suffered particularly harshly in that way. All judges know that we operated for a time with software which was so out of date that it was not even tech supported”

“However we are now slowly returning to a situation where it will be possible to plan for the greater deployment of IT in the years to come…. It is important that the Supreme Court shows some leadership in this regard. With that in mind, I and my colleagues have agreed to a pilot project in which it is hoped that all applications for leave to appeal to the Supreme Court will be capable of being made and considered online”.

A working group consisting of judicial, administrative and IT personnel has been established to bring this project forward as a matter of some urgency. It will be one year before the project can be expected to go live – as a first step.

The Chief Justice said that “if it is seen to work, I can see no reason why all further stages of the appellate process could not be facilitated by online filing and, indeed, the use of IT to support oral hearings. In that latter regard it is worth mentioning that there was a successful experiment conducted in the recent past where an appeal was conducted entirely on the basis of all legal personnel and judges using only tablets. It is hoped to continue with the experimental use of paperless hearings”.

 

Accessing Judicial Resources for the Court of Appeal: clearly more appellate judges needed … as a matter of particular urgency.

The Chief Justice pointed out that “the Court of Appeal has put in place new and innovative procedures which do make the system more efficient. It is also abundantly clear that the workload of the individual judges of the Court of Appeal is, if anything, beyond what can reasonably be expected.”

He said there was “a need to secure an increase in the number of judges for the Court of Appeal”. In the some short term he has agreed with the court’s President, measures which may be able to be put in place which would have the effect of allowing the Supreme Court to assist with the current acute problem which the Court of Appeal faces.

“However, there is no doubt that the long term solution requires more judges. There are a number of reasons for this. First, there are more appeals today to the Court of Appeal than there were to the Supreme Court under the previous regime.

The criminal side of the work of the Court of Appeal is up to date. However, this achievement requires the allocation, typically, of four judges.

The six remaining judges have to deal with an increased civil appeal burden….. it is not difficult to see why there is a problem”.

“I would like to emphasise here my complete commitment to supporting that case for extra judges for the Court of Appeal, and also the commitment of my colleagues and I to assist in any exceptional, interim, short term measures which may be required.

Leaving aside altogether issues concerning the method of judicial appointment there is an urgent need to address at least some aspects of the shortfall in numbers in the appellate courts as a matter of particular urgency”.

 

Brexit:

A final point on BREXIT. “The Irish Supreme Court plays its role in many Europe wide judicial bodies which are frequently consulted by the Commission and by European legislators. It is always necessary to ensure that the common law position is understood to minimise the risk of unintended consequences. In the past we have, to an extent, been able to rely on the well resourced United Kingdom to take the lead. Post BREXIT Ireland will become the biggest common law jurisdiction and a much greater burden will fall on us to ensure that European measures proposed fit well into a common law system”.

Courts Services issued a media notice on Justice Frank Clarke’s nomination as the next Chief Justice

Congratulations to The Hon. Mr. Justice Frank Clarke on his Government nomination as the next Chief Justice of the Supreme Court of Ireland.

 

 

The Courts Services issued the attached notice outlining the constitutional role of the Chief Justice, other responsibilities and Justice Clarke’s CV.

New Appeal: Do family rights arise for non-EEA students?

In this determination, Balchand & Ors v Minister for Justice and Equality, the Supreme Court granted the Minister leave to appeal on:

Whether, under s 4(7) of the Immigration Act, the Minister was under a duty to consider constitutional family rights, or Article 8 ECHR rights, either generally, or in the circumstances of this case?

 

Background

This case is similar but not identical to Luximon (previous post). Balchand is a native of Mauritius. He entered the State as a student in 2006. His wife joined him in 2008. They had a child born within the State in 2009. In 2011 the Minister adopted a new policy which limited the stay within the State of non-EEA students to seven years.

In 2014 Balchand’s permission to remain in the State expired. The Minister refused his application for long term residency under s 4(7) of the Immigration Act 2004:

A permission under this section may be renewed or varied by the Minister, or any Immigration Officer on his behalf, on application thereafter by a non-national concerned.

Balchand challenged that decision on grounds that the Minister did not consider constitutional family rights or Article 8 ECHR rights in reaching that decision.

The determination outlines the High Court’s rational in dismissing Balchand’s challenge:

11. The High Court judge concluded at para. 21 that the respondents fell into the same “precarious” category, and that, in general, their private and family rights to remain in the State were minimal or non-existent, and did not need to be considered by the Minister at any stage of the process, because they simply did not reach the level of significance required to engage such consideration. He held that repatriation to their country of nationality was not impossible; that the family would not be split up on repatriation; that there was nothing to prevent them enjoying a private and family life in Mauritius; nor was there anything which would prevent them from making an application for permission to return to this State from Mauritius. He held at para. 23 the whole thrust and basis of the student scheme was such that students should honour their part of the bargain and leave the State at the end of the 7 year period. He concluded at para. 24 that there was no obligation on the Ministerto consider whether exceptional circumstances exist in every case. He referred to, and distinguished, a number of U.K. authorities (at paras. 26 to 27), and also referred to decisions of the Court of Human Rights (at paras. 28 to 35) in that regard. (HC judgment).

 

Court of Appeal

The CoA (judgment) overturned the High Court decision holding that the Minister should have considered Balchand’s constitutional and ECHR rights.

The Supreme Court granted the Minister leave to appeal as the case raises an issue of general public importance.

New Appeal: Is Minister for Education the employer of all publicly funded teachers?

In this determination, Minister for Education and Skills v The Labour Court & Ors, the Supreme Court granted the Minister leave to appeal on whether “in all the circumstances of this case, the Minister can be said to be an employer of Ms Boyle [notice party] in relation to pay related matters for the purposes of the 2001 Act” [Protection of Employees (Part-time Work) Act 2001].

 

Background

For over twenty years, Ms Boyle was employed as a teacher in a grant-aided preschool for traveller children. For all of that time, the Minister for Education paid a grant equal to 98% of a primary teacher’s salary to the preschool towards Boyle’s salary. Boyle sought to be admitted to the National Teachers Superannuation Scheme claiming that, subject to the Protection of Employees (Part-time Work) Act 2001, she was any employee of the Minister.

The Labour Court determined that the Minister was Boyle’s employer under the 2001 Act. The High Court, O’Malley J, upheld that determination, holding:

School teachers whose salaries are publicly funded must be deemed, for the purposes of the Protection of Employees (Part-time Work) Act, 2001, to be employed by the Minister for Education [143].

The Court of Appeal unanimously upheld the High Court judgment.

 

Supreme Court

The Court determined that the Minister raised an issue of general public importance on whether the trial judge’s interpretation of the 2001 Act is correct.

Chief Justice welcomes new Attorney General

Courtesy of the Courts Services, the Chief Justice welcomes the new Attorney General:

 

Welcome by the Supreme Court
To the new Attorney General
Séamus Woulfe SC
Chief Justice Denham
21st June, 2017

 

Mr. Attorney General, Colleagues and friends,

On behalf of the Supreme Court it gives me great pleasure to extend to you a warm welcome in your capacity as the newly appointed holder of the constitutional Office of Attorney General.

The Court congratulates you on your recent appointment to an important constitutional Office of the State, with significant duties, which this Court has acknowledged as being one of the “Organs of State”. The Court appreciates the particular importance and difficulty of the role. The Attorney occupies a vital position in the structure of the government.

The Attorney is, of course, the legal adviser to the Government, but is not a member of the Government, it is an independent position. This is never an easy role, but it is particularly demanding in an era where Brexit is likely to throw up very complex legal problems.

While the Constitution recognises the Separation of Powers between the three great organs of State, the Government, the Oireachtas and the Judiciary, it also imposes on those organs, for some of which your role is crucial, a common obligation, specified in Article 40.3, to respect and vindicate the rights of citizens. Indeed, the public interests are committed to the care of the Attorney General.

You occupy an Office which is responsible also for the drafting of all legislation, advising all Government Departments, and for the conduct of civil litigation concerning the State. Thus, the Office which you now hold is one of weighty national importance. In willingly taking up this Office, so as to give public service to the State, you are acting in the best traditions of the Bar.

The Supreme Court recognises the role of the Attorney General as the leader of the Bar. The independent Bar in Ireland is a critical aspect of our democracy. As leader of the Bar you have an important position in maintaining the highest standards in the legal profession, in the interests of the administration of justice.

The Separation of Powers in the State means that each great organ of State has its own specific powers. It is a system of checks and balances and inevitably the Courts make decisions on the actions of other branches of Government. Consequently, it is necessary that there be some distance between the branches.

Also, by the nature of their positions and function, Judges are not expected to engage in public controversy, as other groups may who freely express their views to members of the Legislature and the Executive.

Therefore, the role of the Attorney General is crucial in providing a point of contact, and a method of communication, between the Judiciary and other branches of Government.

Mr. Attorney General, the Court congratulates you on your appointment, and is confident that you have all the qualities that will enable you to meet the difficult challenges, and make the complex decisions, which will inevitably come your way. We extend to you our best wishes.

A Farewell to The Hon Ms Justice Mary Laffoy

 

Attached is the speech by Chief Justice Denham on the retirement of Supreme Court Justice Mary Laffoy.

CFA v McG: Habeas corpus can be an appropriate remedy in childcare proceedings where there has been a fundamental breach of justice

shutterstock-2918689-630x420Here, the Supreme Court upheld the High Court’s judgment granting McG a writ of habeas corpus against the District Court’s order placing her children in the CFA’s care. The Court held that an application under Article 40.4.2° of the Constitution (habeas corpus) was appropriate as the District Court had breached McG’s constitutional right to fair procedure in the custody hearing.

Background

This case began in the District Court, where the Child and Family Agency (CFA) was seeking an interim care order for two children. The children’s mother (McG) and father (JC) both suffered from drug addiction. Their relationship was chaotic and often violent. And McG and the children (14 and 5) had no settled home. But the children were in no immediate danger. Legal aid was provided to McG on the morning of the hearing. The solicitor provided only had a few minutes to meet the mother and did not have time to review the social worker reports on which the application was based. JC was awaiting legal aid. The parties agreed to seek a one week adjournment to allow the legal aid solicitors to prepare. However, the judge had read the CFA’s submission and refused the application for an adjournment. She made an order transferring custody of the children to the CFA.

McG brought a High Court habeas corpus application under Article 40.4.2º of the Constitution seeking an order that her children were unlawfully detained.

In the High Court, Baker J (here) ordered the release of the children, stating:

50. I am satisfied that the order was not lawfully made and was made without affording an opportunity to the applicants to fully engage with the evidence. Because the question before the District Court related to the day-to-day relationship and care of the children by their mother, and the ongoing contact between the children and their mother, the frailty in the making of the order impacts on its validity in a way that failed to engage the welfare of the children and their place in a family unit.

The CFA applied to the Supreme Court for a leapfrog appeal, bypassing the Court of Appeal. Granting leave to appeal, the Court determined that the CFA had met the applicable constitutional threshold. The Court certified one question:

Where children are made subject to an interim care order under section 17 of the Child Care Act 1991 requiring “that the child named in the order be placed or maintained in the care of” the applicant Child and Family Agency, are such children ever subject to a habeas corpus remedy under Article 40.4.2º of the Constitution as being “unlawfully detained”?

Supreme Court

MacMenamin J wrote the judgment for the majority of the seven judge Court; only Charleton J dissentedand only in part.

The CFA argued, among other things, that habeas corpus proceedings are ill-suited to childcare issues and transfer of custody is not detention. Such proceedings are limited to orders for detention issued without jurisdiction, and McG should have appealed the decision on merits.

MacMenamin dismissed those arguments. Firstly, there is long held Supreme Court authority permitting the use of Article 40 proceedings in child custody proceedings, most recently in N v HSE [2006] IESC 60. Secondly, the order was comparable to detention, as the children were placed under the complete control and supervision of the CFA and were not free to leave. And thirdly, this is a case where the order was issued in breach of a fundamental breach of fair procedure and was therefore without jurisdiction.

MacMenamin J stated in conclusion:

  1. In the instant case, the practical vindication of the rights of parents warranted an appropriate, proper and effective level of legal representation in the District Court proceedings permitting real engagement therein. The situation which arose in this case, although undoubtedly motivated by proper intentions, unfortunately amounted to a denial of the constitutional rights of the parents. As a matter of fair procedures, both respondents had the right to meaningfully engage in the proceedings. This necessitated effective legal representation for both parents. In the absence of such fair procedures and natural justice, the hearing was not in accordance with law.
  1. In holding that Article 40 is appropriate, in these exceptional circumstances, where there has been a denial of constitutional justice, I would not wish to be taken as, in any way, derogating from the clear observations of this Court made in Ryan or Roche (Dumbrell). I would hold that a constitutional application of s.23 requires that the orders of the Court be effected in a constitutionally compliant sequence, vindicating, where so required, in the first instance, the right to liberty by an order for release, and second, if necessary, by an ancillary order under s.23 of the Act, protecting the welfare of children. I would entirely deprecate the usage of Article 40 proceedings in routine inter-parental care disputes. Moreover, the duty of the court hearing such an application is always to have the welfare of children as the paramount consideration.

O’Donnell J issued a concurring judgment (here).

Charleton J dissented (here). He believed that the parents had not established that the District Court issued the order without jurisdiction, stating:

  1. Finally, and concurring with the majority, habeas corpus applications in child care and custody cases are not to be encouraged. In the event that matters are not ready to proceed and in the event that the applicant consents to an adjournment but the District Court having read all the papers considers that the children are in danger, then evidence can be called which may justify the making of an emergency care order on an application by the Child and Family Agency. It was the failure to prove that these children were not in such danger when the District Court made its determination that required this dissent, which is essentially one as to the failure of the mother and father to prove that the judge dealing with the case of these children at first instance was so much in error as to be a failure of jurisdiction.

Hickey v McGowan: Member of religious order held vicariously liable for sexual abuse by another member

Here, the Supreme Court overturned the High Court’s finding that the Marist Order (an unincorporated body) was vicariously liable, separately from its members, for the sexual abuse perpetrated by one of its members (Cosgrove, second defendant). However, the Court held that, as Cosgrove had perpetrated offences while acting as a member of the Order, and as McGowan (first named defendant) was a member of the Order at the time the offences were committed, McGowan (and possibly all other members at the time) was vicariously liable.

 

Background

The High Court (here) found that, between 1969 and 1972, Cosgrove, while working as a national school teacher in Sligo, sexually abused Hickey, who was a pupil at the school. In 2001, Hichey began the process of instituting High Court proceedings against Cosgrove, naming McGowan, a Provincial in the Order, as first defendant. For reasons outlined in the judgments, the High Court proceedings did not come to trial until November 2013.

The High Court (O’Neill J) followed the UK Supreme Court case of Catholic Child Welfare Society and Ors v Various Claimants (FC) and Ors [2012] UKSC 56. There, that court held that the Society, although an unincorporated body, could be held vicariously liable for abuse by a brother on vulnerable children in a care home. The court stated that the facts supporting that decision were: the Society had a hierarchical structure similar to a corporate body; the Provincial directed the teaching positions of the brothers; the brothers teaching activities were in furtherance of the Society’s mission; and the Society’s rules dictated the teachers’ conduct.

The High Court awarded Hickey €350,000 but found that the school manager was vicariously liable to the extent of 10%, reducing the award against McGowan and Cosgrove to €315,000. McGowan appealed the High Court decision to the Supreme Court (pre 33rd Amendment).

 

Supreme Court

O’Donnell J wrote the judgment for the majority, Denham CJ, MacMenamin J and Dunne J concurring. Charleton J dissented (here).

McGowan’s case was that an unincorporated body lacks separate legal personality and cannot be liable for the actions of one of its members. O’Donnell accepted McGowan’s argument that the evidence before the High Court was fragmentary and could not support a finding that the Provincial was in control of the school or the teaching at the time in question. (The school was owned by the diocese, the bishop appointed a manager and the Order provided the teachers).

On the law relating to unincorporated bodies, O’Donnell cited Clarke J in Sandymount and Merrion Residents Association (SAMRA) v An Bord Pleanála and Ors [2013] 2 I.R. 578:

It is true of course, that … an unincorporated association or body does not have the legal capacity to bring or defend court proceedings. Such an unincorporated body or association is simply the sum of its individual members with no independent legal personality. However, it is also clear there can be, whether by legislation or otherwise, exceptions to that general rule.

The evidence presented before the High Court could not establish an exception to that rule in this case. Therefore, the question was whether the abuser’s co-members could be held liable.

On that issue, O’Donnell J cited Murphy v Roche & Ors (N0 2) [1987] 1 IR 656, which concerned an action against a GAA club. There, Gannon J stated:

… if the actions of any member or servant in the furtherance of the common interest should occasion actionable damage, the body of members as principals are all equally liable vicariously to the injured party for the entire damage attributable to the harm, but with right to recourse to for indemnity to the wrongdoer.

O’Donnell found that, even on the fragmented evidence presented, Hickey had established that he suffered abuse by Cosgove, who was a member of the Order; that McGowan is a Provincial of the Order and was also a member at the time the abuse was perpetrated; and that was enough to justify judgment against McGowan. Although O’Donnell stated that it “remains to be seen what benefit such judgment against an individual will be to the plaintiff” [56].

O’Donnell reduced the award to €150,000 and held that the High Court had erred in apportioning liability between the parties unequally, as a court would apportion liability for contributory negligence. The correct manner to apportion vicarious liability between two parties for offences of a sexual nature perpetrated by a third party is on an equal basis. In this case that was between the Order (McGowan) and the school manager, who was not named in proceedings; in effect, an award of €75,000.

Collins v Minister for Finance: €31 billion promissory note was a permissible constitutional response to an exceptional situation

In this judgment (here), the Supreme Court dismissed Joan Collins TD’s appeal of the Divisional High Court’s rejection of her claim that s 6 of the Credit Institutions (Financial Support) Act 2008 (here) is unconstitutional in permitting the Minister for Finance to provide unlimited financial support to credit institutions. The Court stated:

This case illustrates clearly therefore that choices now made have consequences both for the present and the future. Decisions made or approved by the current Oireachtas can significantly constrain the freedom of action of future Oireachtas, just as decisions made in the past may continue to constrain the present. This Court has no function, however, in considering the wisdom of decisions taken by the other branches of government, only the limited capacity to review that judicial review constitutes. It is this Court’s function to ensure that the constitutional organ which has responsibility to make such decisions, whether they be wise or foolish, trivial or far reaching, is allowed to do so within the limits imposed by the Constitution. The momentous nature of the decisions which have been made in relation to the crisis which the Irish economy experienced in recent years, including those made in this case, highlights the importance of each organ of government respecting the field of operation of the other branches, and performing its own functions conscientiously and carefully.

 

Background

In 2011, under s 6 of the 2008 Act, the Minister for Finance issued promissory notes to the value of €31 billion to two financial institutions, the Irish Bank Resolution Corporation (IBRC) and the Educational Building Society (EBS). That imposed a repayment liability of €3 billion per year from the State’s budgetary expenditure. Joan Collins TD took judicial review proceedings in the High Court seeking a declaration that the Minister’s decision was beyond his power and that s 6 of the 2008 Act  was an unconstitutional delegation of the Óireachtas’s power to approve expenditure to the Minister. Collins argued that the issue of the promissory notes should have been subject to a Dáil vote. The Divisional High Court rejected that claim. Collins appealed to the Supreme Court.

 

The Constitution

Article 11:

All revenues of the State from whatever source arising shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes and in the manner and subject to the charges and liabilities determined and imposed by law.

Article 17:

1 1° As soon as possible after the presentation to Dáil Éireann under Article 28 of this Constitution of the Estimates of receipts and the Estimates of expenditure of the State for any financial year, Dáil Éireann shall consider such Estimates.

1 2° Save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Financial Resolutions of each year shall be enacted within that year.

2 Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.

Article 28:

4.4° The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration.

 

Supreme Court

This case was heard by a seven judge panel. However, due to the death of Justice Adrian Hardiman earlier this year, the judgment was deliver by a unanimous six judge panel who each contributed to the single judgment. The Court agreed with the High Court’s assessment that the issues should be examined with a similar approach as the courts have taken when dealing with the impermissible delegation of the legislative function. But the Court made the distinction that the Constitution expressly provides that the sole and exclusive power to make law is vested in the Óireachtas. No similar statement is made in respect of financial matters [66].

The Court’s summary of the Constitution’s delegation of power in financial matters is set out in paragraph 62:

It might be said that the Constitution provides something of a double lock on expenditure. The Dáil is not permitted to require expenditure by vote or resolution, and the Oireachtas is not permitted to enact a law providing for public expenditure except on the formal recommendation of the Government and signed by the Taoiseach (Article 17.2). Likewise, the Government is not entitled to expend monies which are not authorised “by law”, both as to purpose and manner of expenditure (Article 11). That in turn requires that there be a lawful measure passed by the Oireachtas or a vote by the Dáil authorising the expenditure concerned. Neither the Government, nor the Dáil, nor the Oireachtas can, therefore, validly authorise the expenditure of public monies without the approval of the other branch. It is important to recognise that this is the Irish constitutional model. Statements of general principle as to what might be considered desirable as a model for governing public expenditure may be of interest, but must yield to an analysis of what the Constitution itself says about the manner in which Irish public expenditure can be permitted.

 

On analysis of the facts surrounding the issue of the promissory notes, the Court found that the technical requirements of the 2008 Act were met. What was at issue is whether the powers that the 2008 Act delegated to the Minister are consistent with the Constitution [63]. The Court found that the 2008 Act provided sufficient limitations on the Minister’s power to grant financial assistance to be constitutionally valid:

76 The opinion formed by the Minister after consultation with the Governor and the Regulatory Authority, and necessarily endorsed by the Oireachtas, is threefold, and requires three related opinions in ascending order of seriousness: first, that there is a serious threat to the stability of credit institutions in the State generally, or that there would be such a threat if the functions under the Act were not performed; second, that the performance of those statutory functions is necessary for maintaining the stability of the financial system in the State; and third, that the performance of those functions is necessary to remedy a serious disturbance in the economy of the State. Significantly, under s. 2(2) it is envisaged that the Minister may continue to consult with Governor and Regulatory Authority in the continuing performance of the functions under this Act.

On the issue that the 2008 Act did not limit the financial assistance that the Minister could provide, the Court stated the Constitution does not “expressly or by implication require such a limit”[82]. That the potential exposure was enormous does not render the Act unconstitutional. And the situation surrounding the issue of the promissory notes was itself exceptional [83]. Although the Act is exceptional “it was a permissible constitutional response to an exceptional situation. It cannot therefore be considered to be a template for broader Ministerial power on other occasions” [84]. And the Court found the argument that the lack of a financial limit in the Act impermissible under the Constitution unpersuasive: s 54 of the Finance Act 1970 imposes no limit on the amount of national debt that State can accrue, “even though such borrowings may burden present and future generations, and constrain present and future decisions in relation to the economy” [85].

For those reasons, the Court dismissed Collins’ appeal.

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