Introduction

In the landmark case Right to Know CLG v Commissioner for Environmental Information & Ors ([2022] IESC 19), the Supreme Court of Ireland addressed the critical issue of whether the President of Ireland, along with associated bodies such as the Office of the Secretary General to the President (OSGP) and the Council of State, could be compelled to disclose environmental information under the European Communities (Access to Information on the Environment) (AIE) Regulations 2007-2018.

The appellant, Right to Know CLG, sought access to records related to speeches made by the President and certain legislative documents held by the Council of State. The Commissioner for Environmental Information denied these requests, citing the constitutional immunity of the President under Article 13.8.1° of the Irish Constitution. The High Court partially upheld the Commissioner's decision, leading to an appeal by the State parties and a cross-appeal by Right to Know CLG, ultimately escalating to the Supreme Court.

Summary of the Judgment

The Supreme Court upheld the Commissioner's refusal to disclose the requested environmental information, reaffirming the constitutional immunity granted to the President of Ireland. The Court determined that the President, the OSGP, and the Council of State do not fall within the definition of "public authority" under the AIE Directive or the Irish implementing Regulations. Consequently, these entities are exempt from obligations to disclose information under the AIE Regulations.

The Court dismissed the cross-appeal by Right to Know CLG and allowed the appeal by the State parties, effectively overturning the High Court's decision to the extent that it directed any disclosure from the President or the notice party.

Analysis

Precedents Cited

The judgment extensively referenced prior cases that established and reinforced the principle of presidential immunity in Ireland. Key cases include:

• Draper v. Attorney General [1984] I.R. 277: The Court struck out the President and the Taoiseach as defendants, citing constitutional immunity.
• O'Malley v. An Taoiseach [1990] ILRM 461: An injunction against the Taoiseach advising the President was rejected due to the President's constitutional immunity.
• Haughey v. Moriarty [1999] 3 I.R. 1: The Court dismissed challenges to presidential acts performed under constitutional functions, emphasizing immunity.
• The State (Walshe) v. Murphy [1981] I.R. 275: Established that presidential immunity extends to acts "purporting to be done" by the President in the exercise of constitutional powers.

Additionally, the judgment considered European Union case law, notably:

• Flachglas Torgau GmbH v. Federal Republic of Germany, Case C-204/09: Addressed the scope of exemptions under the AIE Directive for bodies acting in legislative capacities.
• Friends of the Irish Environment v. Commissioner for Environmental Information, Case C-470/19: Further clarified the definition of "public authority" under the AIE Directive, emphasizing a functional and institutional interpretation.

Legal Reasoning

The Supreme Court's legal reasoning centered on the explicit constitutional provisions that grant the President immunity from judicial and legislative scrutiny in the performance of constitutional duties. Article 13.8.1° of the Irish Constitution 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."

This broad immunity precludes any legal action seeking to compel the President to disclose information related to constitutional functions, including ceremonial speeches and legislative consultations.

The Court also examined the AIE Directive’s definition of "public authority," concluding that the President does not qualify because:

• The President is not involved in "government or other public administration."
• The President does not perform "public administrative functions" nor "provide public services relating to the environment."
• The roles and functions of bodies like the OSGP and the Council of State are integral to the President's constitutional functions and do not constitute separate public administrative entities.

Furthermore, the Court addressed the argument regarding the supremacy of EU law, determining that the constitutional immunity of the President is sufficiently clear and pre-existed the AIE Directive. The Directive allows for the exclusion of bodies covered by constitutional immunity without necessitating express derogation in national legislation.

Impact

The judgment has significant implications for transparency and access to environmental information in Ireland. By affirming that the President and associated bodies are not public authorities under the AIE Directive, the Court reinforces the inviolable nature of presidential immunity. This means that constitutional heads of state may remain beyond the reach of public information requests related to their constitutional functions, potentially limiting public oversight in these domains.

Additionally, the decision clarifies the boundaries between constitutional immunity and the obligations imposed by EU directives, ensuring that national constitutional provisions take precedence where they are clear and comprehensive.

Complex Concepts Simplified

Presidential Immunity

Presidential immunity refers to the constitutional protection that shields the President from legal proceedings and scrutiny when performing official duties. In Ireland, this immunity is enshrined in Article 13.8.1° of the Constitution, making the President unanswerable to both legislative bodies and courts for actions taken in the course of official duties.

AIE Directive and AIE Regulations

The European Communities (Access to Information on the Environment) (AIE) Directive is designed to promote transparency and public participation in environmental matters by granting individuals the right to access environmental information held by public authorities. The AIE Regulations 2007-2018 are the Irish implementation of this Directive, outlining how public bodies must comply with information requests.

Public Authority

Under the AIE Directive, a "public authority" includes government bodies, public administrations, and any entity performing public administrative functions related to the environment. The Supreme Court ruled that the President and associated bodies like the OSGP and the Council of State do not fall within this definition.

Functional vs. Institutional Definition

A functional definition considers the actual roles and activities of an entity, whereas an institutional definition focuses on the entity's position within the governmental structure. The Court employed both approaches, determining that the President does not function as a public authority within the scope of the AIE Directive, despite holding a significant constitutional role.

Conclusion

The Supreme Court's decision in Right to Know CLG v Commissioner for Environmental Information & Ors robustly upholds the constitutional immunity of the President of Ireland, delineating clear boundaries between executive functions and public information obligations under EU law. By affirming that the President and associated bodies are not public authorities within the AIE Directive framework, the Court ensures that certain high-level constitutional roles remain insulated from judicial and administrative oversight. This judgment reinforces the separation of powers, maintaining the President's position as a non-political, ceremonial head of state while balancing it against the principles of transparency and public access to information where applicable.