Murphy v The Standards in Public Office Commission & Ors (Approved)

Factual and Procedural Background

This judgment concerns an application for judicial review relating to two decisions made by the Standards in Public Office Commission ("the Commission") recorded in a report dated 9 November 2022 ("the Report"). The decisions arose from complaints made by the Plaintiff and others about actions taken in April 2019 by a former Taoiseach, here referred to as "the notice party". The Commission decided not to appoint an inquiry officer for a preliminary inquiry and not to carry out an investigation under section 23(1C) of the Ethics in Public Office Act 1995, as amended.

The Plaintiff is a member of the Oireachtas since October 2014. The complaint concerned the notice party's provision of a confidential agreement negotiated between the Department of Health, the Health Service Executive ("the HSE") and the Irish Medical Organisation ("the IMO") to the president of the National Association of General Practitioners ("the NAGP"), which was not a party to the negotiations. The notice party accepted providing the agreement but asserted it was done in his capacity as head of Government to further policy goals.

The Plaintiff made a complaint to the Commission in November 2020. An active criminal investigation was underway by An Garda Síochána, which the Commission deferred to until its conclusion in July 2022. Following the conclusion, the Commission requested information from the notice party and subsequently issued its decision not to appoint an inquiry officer and not to carry out an investigation.

The High Court granted the Plaintiff leave to apply for judicial review on 24 July 2023. The notice party chose not to participate in the proceedings. The Plaintiff sought an order quashing the Commission's decision not to investigate, a declaration of breach of fair procedures, and a remittal for reconsideration.

Legal Issues Presented

1. Whether the Commission lawfully exercised its discretion in deciding not to appoint an inquiry officer to carry out a preliminary inquiry under section 4(4) of the Standards in Public Office Act 2001.
2. Whether the Commission lawfully decided not to carry out an investigation under section 23(1C) of the Ethics in Public Office Act 1995, as amended, particularly regarding its interpretation of its remit and the executive functions of the office of Taoiseach.
3. Whether the Commission provided adequate reasons for its decisions, particularly the decision not to investigate, consistent with the duty to give reasons in administrative law.
4. Whether the Commission erred in law by concluding that it lacked the power to consider complaints involving the implicit executive functions of the Taoiseach in furtherance of government policy.

Arguments of the Parties

Plaintiff's Arguments

• The Commission erred in law by not appointing an inquiry officer, contending that the statutory language imposed a mandatory obligation to do so unless the complaint was frivolous or vexatious.
• The Commission unlawfully concluded that it was outside its remit to investigate acts by the Taoiseach done in furtherance of executive functions and government policy.
• The Commission failed to provide adequate reasons for its decision not to investigate, providing conclusions without explaining the legal basis or the reasoning behind the decision, including the nature and scope of the executive powers relied upon.
• The Plaintiff contended that without adequate reasons, he could not properly challenge the lawfulness of the Commission's decision.

Commission's Arguments

• The Commission argued that the decision not to appoint an inquiry officer was discretionary and that the statutory language "may" confers a power, not an obligation.
• The Commission maintained that it acted fairly and within its statutory remit, considering constitutional constraints and legal advice.
• It contended that the Commission properly considered the executive functions and concluded it had no role to determine the extent of such functions, and thus no sufficient evidence was or would be available to sustain the complaint.
• The Commission denied failing to provide adequate reasons, asserting it had explained its decision in the Report and relied on legal advice.
• The Commission emphasised that the statutory framework combines mandatory and discretionary provisions and that its decisions merit deference, especially given the Commission’s composition and expertise.

Attorney General's Arguments

• The Attorney General largely supported the Commission's position, filing a statement of opposition consisting mostly of denials.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Connelly v. An Bord Pleanála [2021] 2 IR 752	Duty to give reasons: affected persons must know why decisions were made and have sufficient information to consider appeal or judicial review.	The Court applied the principle that reasons must be ascertainable from the decision itself to ensure fairness and enable judicial scrutiny.
Naisiúnta Léictreach Contraitheoir Éireann (NECI) v. Labour Court [2022] 3 IR 515	Context-dependent duty to give reasons; criteria to assess adequacy of reasons in administrative decisions.	The Court used the NECI factors to evaluate whether the Commission's reasons were sufficient for the Plaintiff and the public to understand the decision and for judicial review.
Heather Hill Management Company CLG & McGoldrick v. An Bord Pleanála [2022] IESC 43	Context is critical in statutory interpretation, particularly regarding discretionary powers.	The Court relied on this precedent to interpret the discretionary nature of the Commission’s power to appoint an inquiry officer under section 4(4) of the 2001 Act.
Heneghan v. The Minister for Housing [2023] IESC 7	Interpretation of "may" as potentially mandatory depending on context.	The Court considered this authority but concluded that the statutory language in the present case conferred a discretion rather than a mandatory obligation.
Dublin City County v. Standards in Public Office Commission [2014] IEHC 89	Deference to Commission’s expertise and reasonableness in interpreting statutory remit.	The Court endorsed the Commission’s expertise and the reasonableness of its determinations in the statutory context.
McElvaney v. Standards in Public Office Commission [2019] IEHC 633	Judicial deference to Commission’s views on interests and statutory interpretation.	Supported the principle that courts should rarely find the Commission’s conclusions irrational or unreasonable.
Kelly: The Irish Constitution (5th edn, 2018)	Constitutional scope of executive powers and legislative authority under Article 15.2.1°.	The Court referenced this text to underline the constitutional context of executive powers and legislative oversight.

Court's Reasoning and Analysis

The Court analysed the statutory framework governing the Commission’s functions under the Ethics in Public Office Acts 1995 and 2001, focusing on the Commission’s discretion and obligations concerning complaints under section 4(1)(a) of the 2001 Act and investigations under section 23 of the 1995 Act.

Regarding the decision not to appoint an inquiry officer, the Court found that the statutory language confers discretion rather than a mandatory duty. The inquiry officer’s role is optional, assisting the Commission in preliminary inquiries, not a prerequisite for investigation. The Court accepted the Commission’s explanation that it considered the complaint legally misconceived and thus did not require an inquiry officer’s assistance. The Court found no basis to impugn the exercise of discretion or the adequacy of reasons for this decision.

On the decision not to carry out an investigation, the Court identified a significant issue with the adequacy of reasons provided. The Commission concluded it lacked the power to investigate acts done by the Taoiseach in furtherance of executive functions and government policy, relying on section 23(1C) of the 1995 Act that evidence sufficient to sustain a complaint was not or would not be available.

The Court found tension between the Commission’s reasoning that the complaint was outside its remit (implying inadmissibility) and the conclusion that insufficient evidence existed (implying investigatory insufficiency). The Report did not clarify the Commission’s understanding of the statutory definition of "functions," nor did it explain the legal basis for excluding executive acts from its remit. The Court noted the Commission did not disclose or summarise the legal advice it received, which left the Plaintiff unable to understand the reasons behind the conclusion.

Applying established principles on the duty to give reasons, the Court held that the reasons must be clear enough for the affected person to understand the decision and to consider judicial review. Referring to materials not made available to the Plaintiff did not satisfy this duty. The Court rejected any suggestion that the Commission avoided the issue due to difficulty, recognising the Commission’s integrity and expertise.

In sum, the Court concluded that while the decision not to appoint an inquiry officer was lawful and adequately reasoned, the decision not to carry out an investigation was not adequately reasoned and must be quashed and remitted for further consideration.

Holding and Implications

The Court’s final ruling is to QUASH the Commission’s decision dated 9 November 2022 not to carry out an investigation under section 23 of the Ethics in Public Office Act 1995.

The matter is remitted to the Commission for further consideration consistent with the Court’s analysis, specifically requiring the Commission to provide adequate reasons explaining the legal basis for its decisions, particularly its understanding of its statutory remit and the executive functions of the Taoiseach.

The decision has the direct effect of requiring the Commission to reconsider the complaint with proper reasoning and does not establish any new precedent beyond clarifying the duty to give reasons in this statutory context.

The Court expressed a preliminary view that the Plaintiff should be entitled to costs and scheduled a further hearing to address final orders and any contested costs issues.