Former minister for justice Alan Shatter has asked the Court of Appeal to make orders quashing "enormously damaging" parts of the Guerin report that criticised his handling of complaints made by Garda whistleblower Maurice McCabe.
Mr Shatter also wants any such amended report to be handed to Taoiseach Enda Kenny.
The three-judge court will rule at a later date on exactly what reliefs the former minister is entitled to following the court’s judgment last week that barrister Seán Guerin adopted a defective procedure in compiling his May 2014 report. This breached Mr Shatter’s rights to natural justice and fair procedures.
When the matter returned to the Court of Appeal on Tuesday for final orders to be made, the court was told the sides had agreed on the wording of a declaration that Mr Guerin was obliged to observe the rules of natural justice and fair procedures, and that there was a breach of those rights.
However, Mr Guerin is opposing other reliefs sought by Mr Shatter, including ones deleting the disputed sections of his report and requiring an amended report to be handed to the Taoiseach.
Client control
Paul Anthony McDermott SC, for Mr Guerin, said the report was no longer under his client’s control, and that the Government had published and acted upon it in terms of setting up a commission of investigation.
If Mr Shatter was granted the orders, there would have to be a complete rewriting of the report. It was “bizarre” to ask the court to require his client to deliver an amended report to the Taoiseach, counsel said, adding that Mr Shatter could deliver the court order to the Taoiseach himself.
Mr Shatter was given a copy of the report before it was published by the Taoiseach and had not sought to injunct it. He had brought this case only against Mr Guerin, counsel said.
While Mr Guerin clearly recognises there is an issue between Mr Shatter and the Taoiseach, it was not for Mr Guerin to get involved in any such outstanding issues which are political, his counsel said.
Paul Sreenan SC, for Mr Shatter, said the orders sought were necessary to address an injustice to Mr Shatter and, unless they were granted, this “stain on his reputation” will remain on the public record as the report remains on the Government website.
As a matter of principle, Mr Sreenan said, if a report reaches one finding that is unlawful, the court has power to quash that.
This was not about a typographical error, he said. The report made findings reached in breach of Mr Shatter’s rights, were “highly critical” of Mr Shatter, and had an “enormously damaging” effect on him and on his political career.
Very different issue
In exchanges with counsel, Ms Justice Mary Finlay Geoghegan said that, if the Government decides not to do anything and leave the report as it stands, it was "a very different issue".
It was already an “advance” for Mr Shatter to get judicial review of the report. But the judge did not understand that there was any authority for the court to make orders quashing aspects of the report, she said.
Mr Sreenan said his side had sought to quash aspects of the report.
In its judgment last week, the Court of Appeal found that the Guerin report included “severe criticisms” of the performance of the then minister concerning the McCabe allegations.
It ruled that Mr Shatter’s constitutional rights were in jeopardy by reasons of the conclusions Mr Guerin was proposing to include in his report. It said Mr Shatter should have been permitted to respond to those before the report was given to the Taoiseach, who later published it.
Mr Guerin was obliged to observe the rules of natural justice, and those rights were in breach because of the “defective” procedure adopted, the Court of Appeal held.
