Court delivers stinging slapdown to Shatter
The extent of the defeat suffered by former Justice Minister Alan Shatter in his failed High Court action to quash portions of the Guerin Report is both total and crushing.
Two years ago, following a prolonged and deeply damaging controversy over alleged Garda misconduct, the Government - of which Mr Shatter was then a member - commissioned Senior Counsel Seán Guerin to review the handling of allegations by garda whistleblower Sgt Maurice McCabe. The review was established to ascertain if the allegations warranted further inquiry.
They did, and are now part of a Commission of Investigation (the O'Higgins Commission). Mr Shatter instantly resigned from the Cabinet in May 2014 following receipt of the Guerin report and later launched judicial review proceedings to quash elements of it.
This week's High Court ruling, which rejected Mr Shatter's bid, is lengthy, detailed, scholarly and accessible to those interested in some of the more complex principles of administrative and constitutional theory. However, what is likely to be of greatest interest in the ruling is what Mr Justice Seamus Noonan had to say about Mr Shatter. In any case, a judge must decide what the facts, set out in sworn statements (affidavits) are, before applying the relevant legal principles to them.
In one of his affidavits, Mr Shatter complained that he had not expected that Mr Guerin would examine his role in relation to the McCabe affair. He argued that this had made the whole process unfair.
"I was given no notice whatsoever by Mr Guerin that he intended to examine and pass judgment on my actions as minister," he said in his affidavit. Judge Noonan appears to have been rather unimpressed with this assertion, describing it as "carefully worded". He goes on to conclude that Mr Shatter's position that he could not have known that his role was not under consideration as "hardly credible". He says that "any reasonably intelligent person" would have concluded otherwise.
The conclusion in relation to Mr Shatter's attempt to blame his departmental officials for failing to bring correspondence to his attention is equally withering. Judge Noonan describes the idea that a former Minister for Justice and "eminent lawyer" would suggest that he has no responsibility for correspondence addressed to his department "as extraordinary as it is unstatable". The word unstatable has a special resonance for lawyers - it essentially means an argument or position that is utter nonsense.
The High Court also appears to have taken the view that the motive for Mr Shatter's challenge to the Guerin report was somewhat ulterior. Specifically, it concluded that the challenge was brought more with a view to Mr Shatter preventing his role in the McCabe affair being examined by the Commission of Investigation. Judge Noonan observed that judicial review was not there to "facilitate the adoption of stratagems or tactical positions". Legal language aside, this is another stinging criticism of Mr Shatter. In essence, the High Court was of the view that his challenge was not being brought for its stated purpose, but was rather a kind of legal stalking horse. However, Judge Noonan's harshest criticism was in relation to Mr Shatter's initial claim, later withdrawn, that the drawing of conclusions by Mr Guerin gave rise to a reasonable apprehension of bias. Because Mr Shatter's challenge was brought by way of judicial review, he first had to make an ex parte (one-side only) application for leave to take his case. Because of the one-sided nature of an ex parte application, it is imperative that it is made in utmost good faith.
When Mr Shatter made his one-sided only application, one of his grounds was on the basis that Mr Guerin was a member of the Professional Practices Committee (PPC) of the Bar Council. He suggested that because the Bar Council had opposed his Legal Services Bill that there might be a perception of bias. He also said that he only became aware of this after the publication of Guerin's report. Some months later, Mr Shatter withdrew this ground of challenge when it was pointed out that the PPC had no function in relation to the Legal Services Bill. The casual observer might express some surprise that the architect of the Bill appears to have been unaware of this.
Judge Noonan was scathing in his criticism of Mr Shatter having raised the issue of bias in the first place. He observed that when Mr Shatter later withdrew it, he did so without a hint of apology or regret. Moreover, no explanation was given as to how Mr Shatter could have made such a serious error in the first place. This "grudging withdrawal" and the absence of any explanation was a source of concern.
The judge went on to describe the allegation of bias as one of the "utmost gravity" and pointed out that it effectively amounted to an allegation of unethical conduct. That such an allegation could be made by Mr Shatter, "himself an eminent lawyer", was of the utmost seriousness. He pointed out that Mr Shatter had an obligation to apprise himself of the facts before he swore his affidavit rather than after. It is rare for the High Court to deliver a ruling in such cutting terms. Given the personal nature of Mr Shatter's challenge, it is perhaps unsurprising. The defeat for Mr Shatter is total, not just because the High Court rejected the factual basis for his challenge. But it is also crushing, as it has expressed grave concern that somebody of his eminence could make allegations that proved to be wholly unfounded, and without explanation.
Remy Farrell is a Senior Counsel