Judgment Title: Grange -v- Commission for Public Service Appointments
Neutral Citation:  IEHC 303
High Court Record Number: 2013 476 JR
Date of Delivery: 30/05/2014
Court: High Court
Composition of Court:
Judgment by: Barrett J.
Status of Judgment: Approved
Neutral Citation:  IEHC 303
THE HIGH COURT
[2013 No. 476 J.R.]
COMMISSION FOR PUBLIC SERVICE APPOINTMENTS
JUDGMENT of Mr. Justice Barrett delivered on the 30th day of May, 2014
1. There are two key issues in this case. The first is whether certain decisions of the Commission for Public Service Appointments are amenable to judicial review. The second is whether, assuming such decisions are amenable to judicial review, the particular decisions of the Commission in issue in these proceedings should be allowed to stand.
Throughout any merit-based process, it is essential to ensure that the selection process does not provide unjustifiable advantage or disadvantage to any particular candidate or group of candidates. The selection process should embrace genuine equality of opportunity, and this should be integral to the processes by which appointments are made.”
5. Continuing with the chronology of events that preceded these proceedings, on 3rd September, 2012, pursuant to a request made by Mr. Grange, the Freedom of Information Officer at Dublin City University made available to him the records concerning the exchanges between the Public Appointments Service and Mr. Grange regarding his business studies degree. Mr. Grange forwarded this information to the Commission for Public Service Appointments. On 16th October, 2012, two members of the Commission for Public Service Appointments met with two of the three members of the short-listing board and made various enquiries as to how the short-listing board had discharged its functions. On 25th October, 2012, three of the five Commission members met to consider Mr. Grange’s complaint. At their meeting they were presented with a report by the Office of the Commission on Mr. Grange’s complaint. They were not referred to the information that Mr. Grange had procured from Dublin City University. On 26th October, 2012, the Secretary of the Commission advised Mr. Grange that the Commission did not consider that the merit principle contained in the Code of Practice had been breached during the short-listing process operated by the Public Appointments Service. On 6th November, 2012, Mr. Grange wrote to the Secretary of the Commission stating that he believed the report which had been presented to the Commission was materially flawed in that it did not refer to the Dublin City University materials, nor had these been placed before the members of the Commission. He asked that the report be withdrawn, that a report by an independent person be prepared, and threatened judicial review proceedings. Though not the next step in the sequence of events that preceded these proceedings it is worth quoting at this point the explanation that the Commission offered to Mr. Grange on 14th May, 2013, for proceeding as it had on 25th October, 2012:
(a) issue instructions to the licence holder concerned, and
(b) issue a copy of those instructions to any other person it considers appropriate to issue a copy to.
(2) Nothing in subsection (1) shall be read as permitting an instruction to be issued which has the result of affecting any particular appointment or purported appointment or the recruitment process relating to that appointment or purported appointment.”
11. In The State (Stephen’s Green Club and Anor.) v. The Labour Court, Walsh J, had to consider, inter alia, whether the remedy of prohibition lies in respect of the powers exercisable by the Labour Court by virtue of s.67 of the Industrial Relations Act 1946. Writing in this regard, Walsh J. stated, at 94, that:
The next question then is was it a decision which affected the rights of the first two applicants…[The trial judge] came to the conclusion that it did and he did so quite specifically and quite exclusively on the basis that it affected their rights because it reduced the value of their holdings of land if they wanted to sell them by reason of the fact that they would ordinarily not expect to obtain a grant for afforestation…
…I am satisfied the learned trial judge was right in finding as a fact that it was the actual designation by the Wildlife Service [a section of the Commissioners of Public Works] that made the impediment or block to the granting of a forestry grant.”
16. In Maguire & Ors. v. Ardagh and Ors., the applicants sought by way of judicial review proceedings to quash certain directions of an Oireachtas sub-committee which was convened to inquire into an incident that had occurred in Abbeylara, County Longford, in April 2000, during which a man was shot dead by the Gardaí. In the Supreme Court, Hardiman J., at 668ff., made the following observations:
I do not find appealing a line of argument which sets up a distinction between a universally accepted state of fact in real life and a quite contrary state of law. If this is the law then it can only be described as a legal fiction…It is true that even the most adverse imaginable finding of fact or conclusion by the sub-committee will not amount to a conviction and will not determine any persons rights and liabilities in civil law and will not expose him to any penalty or liability. But that is not the same as saying it has ‘no’ effect.”
18. In De Róiste v. Judge-Advocate General & Ors., the court held that an inquiry into the reasons for the applicant’s dismissal could not be regarded as a simply inquisitive process and therefore unamenable to judicial review. Per Quirke J., at 512:
It is inescapable that the findings and conclusions resulting from the process had the capacity to affect the applicant’s reputation and good name…
[I]ts findings and outcome affected his constitutionally protected right to his reputation and good name. Accordingly, he had a legitimate, fundamental significant interest in the process and is entitled to seek the relief which he has sought in these proceedings.”
22. First principle: Judicial review is available against any body which has the duty to act judicially and which on consideration of facts and circumstances has power by its determination within its jurisdiction to impose liability or to affect rights. (The State (Stephen’s Green Club and Another) v. The Labour Court).
23. In the present case it appears to the court that the Commission for Public Service Appointments, when discharging its functions under the Act of 2004, was not acting judicially in the manner contemplated by Walsh J above.
24. Second principle: Judicial review is available where the body whose decision is impugned is discharging a function of a public nature affecting private rights and is under a duty to act fairly in coming to that decision. (Murtagh v. Board of Management of St. Emer’s National School)
25. In the present case it is not disputed that the Commission for Public Service Appointments in performing its duties under the 2004 Act was discharging a function of a public nature. Could the performance by the Commission of those duties affect Mr. Grange’s private rights? It seems to the court that there are at least two ways in which they could potentially do so. Thus it appears that in practice the Commission’s decisions have the potential to impact materially on the position of persons to whom its investigations and findings relate. At least, this is so if those decisions are favourable to the interests of such persons whereas in Mr. Grange’s case they were not. On a related note, Mr. Grange’s personal rights include the constitutional right to basic fairness of procedures, first referred to by the Supreme Court in Re Haughey  I.R. 217 and referred to extensively throughout case-law since that time. So if the Commission followed a flawed process in the manner in which it discharged its duties then the resultant decisions would appear to be inherently tainted by the breach of Mr. Grange’s constitutional entitlements in their formulation, not least if the effect of any such flaw was to deny him the fruits of a positive decision by the Commission. Moreover. it is clear from the decision of the Supreme Court in Dellway Investments Limited and Ors. v. National Asset Management Agency and Anor.  IESC 14 that it suffices that rights ‘could’ be impacted by a particular process for that process to be justiciable. Thus Denham J., as she then was, states in her judgment in Dellway, at para. 148, that:
26. Third principle. Where an officer of a department, carrying out what appears to have been within the ambit of a government decision made some time before, receives various different types of expert advice and adjudicates upon them and reaches a decision to implement them…that is a decision that is capable of being judicially reviewed (MacPharthalain v. Commissioners of Public Works)
27. In the present case it does not appear to the court that it is correct to describe the process in which the Commission for Public Appointments was engaged under the 2004 Act as one that involved its adjudicating on a matter in the manner contemplated in MacPhartalain.
28. Fourth principle. Quite apart from the public law dimension, two other requirements must be fulfilled before the court can intervene by way of judicial review, namely, there must be a decision, act or determination and it must affect some legally enforceable right of the applicant. If the right is not a ‘legally enforceable right’, it must be a right so close to it as to be a probable, if not inevitable, next step that some legal right will, in fact, be infringed. (Ryanair Limited. v. Flynn and Anor.)
29. Here there are decisions of the Commission, but do they affect some legally enforceable right of Mr. Grange? Again, it appears to the court that if the Commission followed a flawed process in the manner in which it discharged its duties then the ultimate decisions of the Commission would be inherently tainted by any breach of Mr. Grange’s constitutional entitlements in their formulation, especially if the consequence of any such breach was to deny Mr. Grange a favourable decision that he could then have sought to use to advance his interests. It is clear from the extract of the judgment of Denham J. in Dellway, quoted above, that the question of whether or not there has been conformity by the Commission with the principles of constitutional justice in this regard is therefore justiciable.
30. Fifth principle. Where a finding is ‘legally sterile’ in the sense of having no strictly legal consequences but could in practice have an adverse effect on an individual, it is not correct to describe it as having no effect. That would be to divorce the law from reality. (Maguire & Ors. v. Ardagh & Ors.)
31. Any decisions of the Commission insofar as Mr. Grange is concerned appear to the court to be at least potentially legally sterile in that, strictly speaking, negative decisions by the Commission, i.e. that there has been no breach of applicable requirements and related decisions, may have no legal consequences for him. Again, however, it appears to the court that the Commission’s decisions could in practice have an adverse impact upon Mr. Grange if arrived at by a route that violated his constitutional right to basic fairness of procedures. This is because such a violation could result in Mr. Grange being denied the fruits of a positive decision that he could then seek to rely upon to advance his interests in a similar manner to that which others have apparently done when positive decisions have issued from the Commission in the past. Thus it appears to the court that it is not correct to describe the finding as having no adverse effect if the manner in which such decision was reached was improper. If such impropriety pertains then the Commission’s resultant decisions are, the court considers, justiciable. For the reasons stated above, the court is buttressed in this finding by the decision of the Supreme Court in Dellway and in particular the observations of Denham J., as quoted above.
32. Sixth principle. Where the findings and conclusions resulting from a statutory process conducted by a statutory personage have the capacity to affect an applicant’s reputation and good name, he has a legitimate, fundamental significant interest in the process which is therefore justiciable. (De Róiste v. Judge-Advocate General & Ors.)
33. It is not clear that the findings of the Commission have any negative consequences for Mr. Grange as regards his reputation and good name. Like many people who apply for particular employment, Mr. Grange has been unsuccessful in a competition in which he was not deemed to be among the suitable candidates. This entails no general reflection on his abilities and there is no suggestion, nor does the court find, that there are any negative consequences for him in terms of his chances of success in any future competition, whether within the civil service or otherwise, for which he is eligible.
34. Seventh principle. Formal reports or other investigative determinations reached by public bodies may be subject to judicial review in certain circumstances. The fact that a report such as that in the present case is portrayed as a mere fact-finding exercise does not, of itself, prevent it from impacting upon the rights of the parties involved. (de Burca v. Wicklow County Manager & Anor.).
35. In the present case the fact that the Commission’s report, strictly speaking, has no direct legal consequences for Mr. Grange in terms, for example, of ensuring that he is given a further chance at getting the job for which he applied, does not, it seems to the court, prevent it from impacting on his rights if arrived at in a manner that offends against the constitutional right to fairness of procedures.
36. To the above might be added the observation of Hogan and Morgan referred to at the outset of this judgment, viz:
The impugned decisions
39. Breach of fair procedures (including procedural impropriety and fettered discretion)
Before proceeding to consider the issue of fair procedures, it is useful to recall why the issue of fair procedures is central to administrative law. The logic, succinctly stated by Hogan and Morgan (2010, 4th edition), at 569, is that:
43. Insofar as the issue of age discrimination is concerned, this is a matter for the Equality Tribunal in the first instance, though the court notes, without comment and purely as a matter of historical fact, that the members of the short-listing board who were interviewed by the Commission appear to have indicated that age was not a factor in the short-listing process. As to the other contentions made, the court does not consider them to be meritorious. In fact, what is striking to the court and ought to be apparent from the detailed account of the facts given above, is the very great lengths to which the Commission for Public Service Appointments went to ensure that it not only discharged its responsibilities properly and lawfully, but also gave Mr. Grange every possible opportunity to ventilate his concerns, even to the point of arranging a meeting between Mr. Grange and the Secretary of the Commission, a notable courtesy. The court does not consider that any of the imperfections contended for by Mr. Grange, assuming for an instant that they constitute procedural imperfections arising in the course of what the court considers were entirely fair albeit not perhaps entirely perfect procedures, are imperfections of such a scale or significance as to require the court to find that the rules of constitutional justice were not observed or that the principle of audi alteram partem has in some way been breached, or that, the procedures employed cannot be perceived objectively to be fair. In fact, the court finds the contrary to be true in each respect. Mr. Grange clearly considers that he is right as to the superior merits of his candidacy for the position for which he applied back in 2012. However, the court cannot perceive in the processes that are the subject of these proceedings anything that is so wrong as to have denied or even been capable of denying Mr. Grange that basic fairness of procedures to which he is entitled under the Bunreacht and which, the court finds, he received.
44. Failure to take the Dublin City University materials into account. The court does not accept that there was an improper failure by the Commission to take into account the materials from Dublin City University that were supplied by Mr. Grange to the Commission. On the contrary, the Commission, and indeed the short-listing board, decided entirely legitimately to determine matters solely by reference to the application form material. Having done this they determined that Mr. Grange, prima facie, was not qualified for the position for which he had made application. There was no legal obligation on them to do anything more. As it happens, in an abundance of prudence the short-listing board sought additional information in respect of five candidates from an initial field of 1,124 applicants in circumstances where the board was not entirely satisfied that a candidate should be ruled in or out of the application process. This did not create an obligation to do so in respect of all candidates, let alone candidates such as Mr. Grange in respect of whom, having due regard to their application forms, no doubt arose on the part of the short-listing board as to whether or not those candidates were qualified for the relevant position.
45. Errors of law. It was pleaded by Mr. Grange that there was an error of law on the part of the Public Appointments Service in not properly assessing his applications. This is not an error of law. It was pleaded by Mr. Grange that it was not appropriate for the Commission to state in its correspondence with him that in the event of his commencing and being unsuccessful in judicial review proceedings the Commission would pursue Mr. Grange for its costs in responding to those proceedings. This is not an error of law. It was pleaded by Mr. Grange that the Commission was in error when it refused to re-open an investigation that it considered closed. This is not an error of law: there was and is no legal entitlement to a further appeal process.
46. Errors of fact. It was contended by Mr. Grange that there was an error of fact on the part of the short-listing board and the Commission in considering that they were not required to seek out information as part of the selection process in circumstances where information was sought in respect of five candidates. This contention has already been considered above and, for the reasons stated, the court does not consider it to be correct. It was also contended that the Commission erred to the extent that it was its view that Mr. Grange had failed to supply the Public Appointments Service with details of his qualifications. Even if the Commission erred in this regard it does not appear to the court to be a relevant issue as both the Commission, and indeed the short-listing board, decided quite legitimately to determine matters by reference solely to the application form material.
47. Legitimate expectations. Among the grounds mentioned in the statement grounding the judicial review application are certain legitimate expectations of Mr. Grange that, it is claimed, were disappointed, specifically that the Commission failed to source all relevant documentation from the Public Appointments Service and that it failed to conduct an investigation in accordance with its own Code of Practice, in particular as regards the issue of age discrimination. The issue of age discrimination has already been considered above. As to the issue of legitimate expectations, this was not pursued in the course of legal submissions for Mr. Grange, leaving the court in some difficulty in this regard. The court assumes that what is being contended is that Mr. Grange had a legitimate expectation as to the procedure that the Commission would follow and that it, allegedly, did not do so, and the court should now require that the Commission do so, consistent with for example, the reasoning in cases such as the Supreme Court decision in Gutrani v. Minister for Justice  2 I.R. 427 and the High Court decision in Fakih v. Minister for Justice  2 I.R. 406 in which O’Hanlon J. approved the now classic exposition by Lord Fraser in Attorney General of Hong-Kong v. Ng Yuen Shiu  2 AC 629 of the fundamental principle that underpins legitimate expectations, Lord Fraser stating, at 638, that