The Supreme Court ([2022] IESC 19) has ruled that the President of Ireland is immune from requests for information that relate to the European Communities (Access to Information on the Environment) Regulations 2007-2014. The AIE Regulations permit members of the public to seek access to environmental information and allow the public to seek redress when environmental law has been infringed.
The Court ruled that, as the Office of the President is not "involved in government or other public administration", it could not fall within Article 2(2) of the AIE Regulations. Ms Justice Marie Baker further held that the Commissioner for Information’s function is directly linked to the judicial process and that any request or demand for documents from either the Council of State or the Secretary to the President was a collateral attack on presidential immunity under Article 13.8.1 of the Constitution of Ireland 1937 which states:
The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.
Background Information
In 2017, Right to Know CLG made two requests for information and documents from the President of Ireland and the Council of State. The first request sought all information relating to two speeches from the President on climate issues. The second request sought all information held by the Council of State relating to the consideration of the Planning and Development Bill 1999. Both the President and the Council of State refuse to provide the information.
Right to Know appealed the refusal to the Commissioner for Environmental Information stating that Article 3(1) of the AIE Regulations required Member States to make provision for access to environmental information on request from public authorities and that Article 2(2) allowed a Member State to exclude bodies or institutions from such access, if it so wished. However, it was claimed that no such exclusion had been expressly provided for under the transposed domestic legislation and therefore it was submitted that the President's Office and Council for State did fall under the remit of such environmental information requests.
The Commissioner determined that the President was immune from providing such information. It was held that the Office of the President was not a public authority within the meaning of the AIE Regulations and relied on C204/09, Flachglas Torgau GmbH v. Federal Republic of Germany, ECLI:EU:C:2011:413 in support of this. Further, it was said that Ireland was competent to exclude the President from the AIE Regulations and no express provision was necessary for this. In respect of the Council for State, the Commissioner held that it would undermine the constitutional immunity of the President if his administrative staff could be the subject of an AIE Regulation request. Right to Know appealed to the High Court, which allowed the appeal in part.
The High Court held that express provision was required for the AIE Regulations in order for the President to be excluded. The court therefore set aside the finding that the Office of the President was not a public authority and remitted the matter to the Commissioner for him to consider the request in light of this conclusion. On the Council for State request, it was held that the Council merely assisted the President in his legislative function and accordingly was immune from the request.
Both parties appealed the decision to the Supreme Court.
Supreme Court Decision
Ms Justice Baker first considered the Constitutional functions of the President and the Council of State. She observed that the role of the President was largely ceremonial in its function and did not exercise executive or decision-making power. Additionally, the Council for State only ever convened on the direction of the President. The President was required to consult with the Council when seeking to exercise certain powers, including an Article 26 reference, but the Council has no independent role or status outside of its advisory capacity to the President.
It was held that the President’s functions were “in no sense decision-making or policy-making functions, but rather operate at a constitutional level and as a reflection of domestic values and principles”. The President did not perform a legislative function under Article 26 or where he exercised his discretion to refuse to dissolve a Dáil.
Ms Justice Baker then considered whether the President was required to provide the information based on the supremacy of EU law. The court determined that the President was not bound by the AIE Regulation because he/she was not involved in “government or other public administration.” Further, the President did not perform “public administrative functions” because he/she played no administrative role in the State and had no responsibilities or functions relating to the environment under domestic or European law (see Flachglas; Case C-470/19, Friends of the Irish Environment v. Commissioner for Environmental Information).
The immunity from suit under the Constitution for the President’s administrative or legal functions was very clear and it would have been unnecessary to make express provision for any such exemption in the national implementing measure (Case C-29/84, Commission v. Germany). The court said that “if a structurally superior constitutional immunity exists, legislation did not need to repeat it.”
Finally, the court noted that the key test for a “public authority” under the AIE Directive was the capability to make decisions which could affect the environment. The President had no such function.