The Supreme Court has refused to hear a man’s appeal over a decision that he had not raised a sufficient legal basis to challenge the Government’s appointment of Drew Harris as Garda Commissioner.
Belfast-based researcher Ciaran MacAirt, whose grandmother Kathleen Irvine was one of 15 people killed when a loyalist bomb exploded at McGurk’s Bar in Belfast in December 1971, had sought judicial review of the Government decision.
He claimed Mr Harris’s appointment was unlawful because he was not, it was alleged, an appropriate person to serve as Commissioner.
Because Mr Harris was previously a deputy chief constable of the Police Service of Northern Ireland and an officer in the Royal Ulster Constabulary, it was claimed, by reason of his involvement in investigations carried out by that force into certain notorious murders in Northern Ireland, he would be compromised in performance of his duties as Garda Commissioner.
Mr MacAirt also claimed, by reason of Mr Harris’s obligations under the UK Official Secrets Act and his alleged frustration of the effective investigation of the murders by police in Northern Ireland, he would be incapable of directing an effective Garda investigation into those murders.
The High Court’s Mr Justice Denis McDonald last August ruled Mr MacAirt had raised no arguable grounds for judicial review.
The judge said there was a fundamental flaw in the case as Mr MacAirt completely failed to address or take account of the statutory process for the appointment, under which the Government had to accept a nomination made by the Policing Authority and could reject it only in exceptional circumstances.
Mr MacAirt had shown no basis upon which the court could find a breach of the various provisions of the Constitution, the European Convention on Human Rights and the Garda Síochána Act 2005 that had been pleaded, he held.
Mr Justice McDonald noted most of the matters of concern to the applicant had occurred in Northern Ireland and said there was no suggestion An Garda Síochána was involved in, or contemplated, any investigation into such matters.
There was therefore no ground for any finding that Mr Harris could be compromised in regard to such an investigation, he said.
Any obligation on the Garda Síochána to investigate long predated the appointment of Mr Harris, but the High Court did not accept there was such an obligation, under either the Constitution or the Convention, in respect of events occurring outside the jurisdiction of the State, he said.
While the applicant referred to the 1974 Dublin and Monaghan bombings, he had not set out sufficient facts to support the existence of a statable case, he also held.
He also rejected the submission that Mr Harris’s obligations under the UK’s official secrets legislation would be at variance with his duties to this State.
Mr MacAirt asked the Supreme Court to hear an appeal against that decision.
He asserted the case raises issues in relation to the separation of powers, national intelligence and international conflicts of interest affecting national security.
In its published determination, a three-judge Supreme Court said the concerns raised by Mr MacAirt “do, unquestionably, relate to a matter of public importance”.
However, in order to meet the constitutional criteria for an appeal to the Supreme Court, an appeal must in the first place be “stateable”, it said.
The basic difficulty with this case remains the same as it was in the High Court – the applicant has not addressed the statutory framework within which this appointment took place, and has not set out any specific legal point relating to the part played in the statutory process by the respondents.
The original nomination of Mr Harris by the Policing Authority has not been challenged, and no case has been made that the Government acted illegally in not exercising its power to refuse to accept the nomination, the court said.
There has been no analysis of that power and its parameters and the application for leave to appeal fails to clarify the legal points intended to be argued, whether in relation to the Constitution, the Convention or the legislation, the court added
In determining that Mr MacAirt’s case did not meet the threshold for judicial review, the High Court judge applied well-established case law, the court ruled. In all the circumstances, it refused leave to appeal.
