Notice, Reasons and the National Interest: P v Minister for Justice and Equality [2019] IESC 47

When I lectured administrative law at the University of Cambridge, I received one question from the floor in three years. (Students have fortnightly small-group supervisions, so tend to save their inquiries for their supervisors.) I regularly asked the students if they had any questions and sometimes jokingly complained that they were too shy. This machismo and bravado of course meant that on the day the question finally came, I found myself hoist on my own petard, unable to give a convincing response.

The question was whether the right to reasons applies in the national security context: can a decision-making invoke national security concerns to justify a refusal to give a reasoned decision? I blubbered out some non-response and moved on. But my non-response bothered me, because most of the national security cases with which I was then familiar concerned the right to notice, not the right to reasons, with whether an individual could be given an explanation of why a decision was going to be taken against her interests prior to the decision, not with whether reasons should be supplied after the decision. This was precisely the issue the Irish Supreme Court grappled with in P v Minister for Justice and Equality [2019] IESC 47.

Here the respondent relied upon documents over which executive privilege was successfully asserted in refusing a certificate of naturalization to the applicant. Even though the applicant was deprived of relevant information about the reasons for the refusal, the Court of Appeal held that national security interests were such as to “outweigh the position of the applicant who finds himself in an unfair situation whereby he does not know the basis of the reason for the respondent coming to a conclusion that national security interests result in him not being given the basis of the conclusion arrived at by the respondent Minister” ([2018] IECA 112, at para. 28 per Gilligan J).

The appeal to the Supreme Court provided Clarke CJ with the occasion to discuss, in general terms, the relationship between the right to notice and the right to reasons, in the specific context of naturalization applications (where an applicant is not barred from making further applications if he has previously been unsuccessful). The following passage (at paras. 4.4-4.7) is worth quoting at length:

The entitlement to know the case against you is itself a fundamental part of the right to be heard, for the right to be heard would be of little value if the person concerned did not know the issues which might adversely affect their interests in the relevant decision making process.

However, the precise nature of the information to which a person involved in a public decision making process may be entitled can itself be dependent on the nature of the decision concerned. At one end of the spectrum can be found cases where it is sought to make an adverse decision potentially interfering with the rights of or imposing obligations on an individual. In a similar vein may be cases where a person has a legal right under law to a particular entitlement, provided that certain facts can be established but where there may be evidence or materials available to the decision maker to suggest that the necessary facts are not present. In such cases, it may well be realistic to speak of the right to know the case against oneself.

On the other hand, there may be cases where a broad discretion is given to the decision maker as to whether a particular benefit should be conferred in circumstances where no legal right as such to the benefit exists. In such a case, the applicant for the benefit has the right to be heard, in the sense of the right to make whatever representations are considered appropriate. There may also be an entitlement, in some circumstances, to be told of any information, evidence or materials which might adversely affect the exercise by the decision maker of the discretion in question, so as to afford the person concerned an opportunity to comment on those matters. The precise extent to that entitlement will be dependent on all the circumstances of the case, including the nature of the decision to be taken. However, there are undoubtedly significant differences between cases where rights may be interfered with or obligations imposed, on the one hand, and cases where a benefit or privilege is sought, on the other.

Against the backdrop of that analysis, it may be that, in some circumstances, there will not be any significant material difference between the right to know and make representations on the case which might be made against a person in the context of a public law decision, on the one hand, and the right to be given reasons for an adverse decision, on the other.

This seems right to me as a general statement of principle, certainly in the specific context of a scheme where reapplications are possible.

As to the merits, the Supreme Court took a different view. First, Clarke C.J. was quite firm in insisting that decisions on disclosure in judicial review proceedings fall wholly within the judicial province: “if there should be a judicial review challenge to an administrative decision and if particular documents can be shown to be relevant to the issues which arise on that challenge, the question of whether the party challenging the administrative decision concerned can have access to those documents becomes a matter arising in the administration of justice and, thus, the issue of whether the content of the documents concerned requires to be disclosed becomes a matter solely for the Court”. But this created something of a separation-of-powers problem. For the question obviously arises whether some special form of proceedings has to be provided for to deal with cases in which critical information cannot be disclosed publicly for fear of national security or other serious repercussions. On which branch of government, however, falls the obligation to develop a bespoke process for addressing national security concerns? In P, the Supreme Court took the view that it would be a matter for the Oireachtas. As Clarke C.J. observed (at paras. 4.26-4.27):

[S]hort of breaching the State’s legitimate and proportionate security interests, it is difficult to see how a process can be constructed which might not, in at least some cases, potentially infringe one or other of what might otherwise be considered matters of principle. Either the Court will have to assess legality without having access to information which formed part of the administrative decision making process but which is covered by State security privilege or the Court will have to make a decision on the substantive merits of the case on the basis of evidence or materials which a party was not permitted to access and could not, therefore, challenge. Neither proposition is particularly attractive but one or other solution must be found if State security privilege is to be upheld. Irish law clearly favours the solution which does not permit the Court to have regard to materials not available to the parties.

Whether, and if so, to what extent, it might be possible to put in place, by legislation, a legal basis for a departure from that position which would meet a test of proportionality, having regard to the legal rights and obligations at stake, is a matter which does not arise in this case and on which I would not, therefore, express any opinion at this stage. In that context, I would agree with the observation of Hogan J. in the Court of Appeal in this case to the effect that the creation of a system such as the special counsel process adopted in the United Kingdom could not be achieved solely by judicial decision. It is sufficient to record that, in the absence of any such legal basis, there is no process known to Irish law which would enable a court determining the merits of a case such as this to have regard to materials which are withheld from a party.

In the instant case, however, the fact that the courts could not construct a bespoke disclosure regime did not let the Minister off the hook of fair procedures. Applying the principle of proportionality to the content of the information required to be disclosed to the applicant, Clarke C.J. thought it “incumbent on the Minister to put in place measures which only impair the entitlement of Mr. P. to be informed of the reasons for any adverse decision to the minimum extent necessary to protect legitimate State interests” (at para. 5.13, emphasis added). Clarke C.J. saw no reason in principle “why an independent person, with appropriate security clearance, could not be given the task of assessing the documentation for the purposes of advising on whether, in that person’s opinion, there was any further information which could properly be given” (at para. 5.15). Given the possibility of providing the applicant with the relevant information in an “ad hoc” way (at para. 48, per O’Donnell J.), the Minister was held to have breached fair procedures which is ultimately, in separation-of-powers Irish-style, a matter for the courts:

It is not, of course, for the Court to be prescriptive as to the precise form of any process which should be put in place. It is, however, for the Court to assess whether it would be possible to put in place measures which would interfere to a lesser extent with the entitlement of a person such as Mr. P. to more detailed reasons. The analysis just conducted is by way of example to illustrate the reasons why I would suggest that it is possible to put such an enhanced process in place. On that basis, I would conclude that it has not been demonstrated that the process which was engaged in in the circumstances of this case can be said to have impaired Mr. P.’s entitlement to reasons only to the minimum extent necessary so as to protect legitimate State interests (at para. 5.19).

P is in line with the general trend in Irish case law away from the traditional rules of Crown privilege. The Supreme Court’s judgment provides a useful weapon for applicants intent on accessing sensitive information held by public bodies. Of course, this is a weapon which is only fully loaded when the applicant is entitled to a fairly strong measure of procedural fairness. And, as O’Donnell J. pointed out, “[i]f national security concerns are properly raised, it cannot be the case that merely by seeking a decision, an interested party can demand access to information, the confidentiality of which is deemed essential to national security” (at para. 47). But P nonetheless demonstrates how powerful claims to fair procedures can be even in the face of undoubted State interests in keeping sensitive information under lock and key.

This content has been updated on September 23, 2019 at 16:17.