Kearney v An Taoiseach and Ors

[2024] IEHC 764 Record no. 2021/1055JR THE HIGH COURT JUDICIAL REVIEW Between ALAN KEARNEY Applicant and AN TAOISEACH, THE HOUSES OF THE OIREACHTAS COMMISSION, THE COMMISSIONER OF AN GARDA SIOCHÁNA, THE MINISTER FOR JUSTICE, IRELAND and THE ATTORNEY GENERAL Respondents Judgment of Mr Justice Cian Ferriter delivered on 21st March 2024 Introduction 1. In these judicial review proceedings, the applicant seeks to challenge a decision-making process which led to his candidature for the position of Captain of the Guard at the Houses of the Oireachtas being terminated and a related decision of An Garda Síochána (“AGS”) to the effect that they were not in a position to provide security clearance for the applicant in relation to the position. 2. In short, the competition for the position was run by the second respondent, acting through the Houses of the Oireachtas Service (“the Service” or “the Commission” as appropriate). The applicant, who is an army captain, applied for the position and was interviewed. He was told on 26 March 2021 that he was the preferred candidate for the position subject to various checks including Garda clearance. The Commission 1 instigated both standard Garda vetting and broader security clearance with AGS. The security clearance process identified that the applicant was the subject of an ongoing military police investigation into suspected criminal offences concerning army ammunition. The Commission kept the applicant informed that security clearance was awaited. Ultimately, as a result of the ongoing military police investigation, AGS were not in a position to give security clearance. On 26 November 2021, the Commission took the view that as security clearance had not been forthcoming for the applicant it would terminate his candidature for the position. On 2 December 2021, AGS confirmed in writing to the Commission that it was not in a position to give security clearance for the applicant. 3. The applicant now seeks orders of certiorari quashing the decisions of the Commission of 26 November 2021 and AGS of 2 December 2021. His essential complaints relate to an alleged breach of fair procedures, including a failure to notify him of, and allow him to engage in, the security clearance aspect of the decision-making process, and delay on the part of AGS in relation to the security clearance exercise. He also complains of alleged breaches of his rights pursuant to GDPR. 4. For the reasons set out in this judgment, I have concluded that the applicant is not entitled to any of the reliefs he seeks. Material events Nature of position and appointment process 5. The background to the matter is as follows. In February 2021, the applicant (a serving Captain with the Defence Forces) applied for the position of “Captain of the Guard (Assistant Principal Officer) Houses of the Oireachtas Service” (the “Captain of the Guard” or “the position”) which had been advertised by the Commission in January 2021. 6. The position of Captain of the Guard is appointed by An Taoiseach after consultation with the Chairman of Dáil Éireann and the Chairman of Seanad Éireann pursuant to 2 Section 7 of the Staff of the Houses of the Oireachtas Act 1959 as amended (“the 1959 Act”). Candidate Information Booklet 7. The basis of the open competition for the position was set out in a “Candidate Information Booklet” (“the booklet”). The booklet also set out the roles and responsibilities of the position. It is clear from the description provided that security is central to the role. The booklet stated that the main role of the position was “to deliver the security function to the houses of the Oireachtas”. This covers security both in the parliamentary chamber and across the Leinster House complex. The Captain of the Guard is the deputy head of the Superintendent’s unit in the Houses of the Oireachtas and a senior manager in that unit. The booklet noted that “externally the appointee will develop relationships with key public service partners” including AGS and the defence forces. One of the specific security functions attached to the role as set out in the booklet is that the Captain of the Guard will represent the Oireachtas on the inter-departmental group on national security necessitating liaison with AGS, the army, and the departments of the Taoiseach, Foreign Affairs and Trade, Defence and Justice and Equality as required. 8. Under the heading “Security Clearance”, the booklet stated as follows: “Police vetting will be sought in respect of individuals who come under consideration for appointment. The applicant will be required to complete and return a Garda Vetting form should they come under consideration for appointment. This form will be forwarded to An Garda Síochána for security checks on all Irish and Northern Irish addresses at which they resided. Enquiries may also be made with the police force of any country in which the applicant under consideration for appointment resided. If unsuccessful this information will be destroyed by the Oireachtas Service.” 9. The booklet, in its next section under the heading “other important information”, stated that “Prior to recommending any candidate for appointment to this position the Oireachtas Service will make all such enquiries that are deemed necessary to determine 3 the suitability of that candidate. Until all stages of the recruitment process have been fully completed including the nomination by An Taoiseach, a final determination cannot be made nor can it be deemed or inferred that such a determination has been made”. 10. The booklet then referenced the fact that the appointment will be made pursuant to Section 7 of the 1959 act and noted that “Section 7 provides for a consultation process but the final appointment to this position is at the absolute discretion of the Taoiseach. Accordingly the successful candidate from this competition is not guaranteed appointment to the position of Captain of the Guard. This process is designed to assist the Taoiseach in making of his decision. The Taoiseach has absolute discretion whether or not to appoint a candidate to the position from this competition.” 11. Under a section headed “Candidates rights”, the booklet stated that, subject to section 7 of the 1959 Act, the competition process “will be undertaken in line with best practice to select a candidate on merit, using a fair and transparent process that is applied consistently to all candidates”. 12. This chimes with principle five of the recruitment principles contained in the Code of Practice for appointments to positions in the Civil Service and Public Service (“the Code”) which states that such appointments will be made “in an open, accountable and transparent manner”. 13. Finally, the booklet contained a section headed “procedures where a candidate seeks a review of a decision taken in relation to their application”. This section provided that a candidate who is dissatisfied with an action or decision taken by the Oireachtas Service may request a review and stipulated that a request for a review must be taken within five working days of notification of the initial decision and must be supported by facts which the candidate believes showed that the action taken or decision reached was wrong. The review will be conducted by an independent reviewer external to the organisation with review decisions notified within 10 working days of the receipt of the request. The booklet provided that the decision of the independent reviewer is final. 4 The competition process and the applicant 14. The applicant was called for interview in March 2021. He was informed by telephone call on 26 March 2021 that he was the preferred candidate for the position. He was told by e-mail of 7 April 2021 that his nomination was subject to relevant reference checks, medical checks and “garda clearance” in the first instance and that assignment to the post was then a matter for An Taoiseach. He replied on the same date stating he was “ready to proceed with any checks required as stated along with Garda clearance and medical scrutiny as required”. 15. By further e-mail of 8 April 2021, reference was again made to the position being subject to inter alia Garda clearance and he was asked to complete a Garda vetting form which was attached to the e-mail. 16. While the consent form was not in evidence before me, it is not disputed that the applicant completed a consent form for Garda vetting on 9 April which was passed by the service to AGS on 13 April, 2021. 17. The applicant was told in an e-mail of 12 April 2021 by the Service’s recruitment officer that the security clearance aspect of the role had commenced and that he would be kept in contact in relation to same. This is borne out by the fact that a request for an urgent expedited clearance was sought by the Service from the security and intelligence section of Garda headquarters by email of 12 April 2021. This was a separate request from the standard garda vetting request. 18. On 21 April 2021, the outcome of the standard Garda vetting process was that the Gardai notified the service that the applicant had no criminal convictions and the applicant was informed of the fact of a Garda vetting disclosure on that date. 19. The Clerk of the Dáil and Secretary General, Houses of the Oireachtas Service wrote on 26 April 2021 to the Secretary to An Taoiseach stating that, following an open recruitment selection process, the applicant had been identified as the preferred candidate “for consideration for appointment” and requesting that the Taoiseach be informed of this outcome. 5 20. In an e-mail of 27 April 202, the applicant sought an update on the process saying that he was anxious to begin processing his discharge from the army in order to minimise the transfer process time. The Service’s recruitment officer reverted promptly, by e- mail of 28 April 2021, advising that the applicant should not commence his discharge until his appointment had been confirmed. She stated that she anticipated that a decision would be made “within the next two to four weeks” and that she would be in contact as soon as she had an update. 21. On the evening of 28 April 2021, the applicant emailed the recruitment officer to say that he assumed that security clearance was completed. The recruitment officer replied early the following morning, 29 April 2021, to say that while the first phase of security clearance was back fully clear “the second phase of security clearance is ongoing” and that the Superintendent of AGS attached to the Service had sought to expedite the process. As we shall come to, the first phase had involved obtaining standard Garda vetting (i.e. identifying records of any criminal convictions) and the second phase of security clearance involved obtaining clearance from the Garda national security vetting unit. 22. Meanwhile, the record of the e-mail exchanges between the Superintendent in the Houses of Oireachtas Service and AGS makes clear that the Service Superintendent was regularly in contact with a liaison Superintendent in Garda National Crime and Security Intelligence Service division in Garda headquarters seeking to have the security clearance expedited. Emails were sent from the Service Superintendent to AGS on the security clearance question on 10 May 2021 (the Service Superintendent emphasising that they were “under major time pressure with this appointment”); 12 May 2021 (when the Service Superintendent offered to be put in direct contact with the Superintendent in security vetting); 4 June 2021 (a further request as regards the position in relation to the application for security clearance); and 8 June 2021 and 6 August 2021 (as discussed further below). In addition, there were a number of phone calls between the Service Superintendent and the AGS liaison Superintendent in this period. 6 23. Returning to the narrative relating to the applicant’s contact with the Commission, on Friday 7 May 2021 the applicant emailed the recruitment officer to say that he would be initiating his discharge from the defence forces on Monday morning 10 May 2021. 24. In a development which was not notified by the applicant to the Commission at that time (or indeed at any time during the decision-making process), the applicant’s home was the subject of a search by members of AGS on foot of a warrant issued by the District Court relating to suspected commission of an offence to which section 29 Offences against the State Act 1939 applies (namely possession of firearms or ammunition in suspicious circumstances contrary to section 59 Criminal Justice Act 2006). The warrant was obtained on foot of an information sworn before the District Court which set out the position of AGS that there was a reasonable suspicion that the applicant had committed offences relating to firearms/munitions. It is clear from a note of the search signed by the applicant and exhibited to his affidavit grounding this judicial review application that the applicant was aware of the basis of that search. 25. On 4 June 2021, the applicant was advised by that the Service that Garda clearance was still awaited and that he should not commence his discharge from the defence forces. The applicant acknowledged that e-mail the same evening and did not demur from, or take issue with, the fact that Garda clearance was still awaited. 26. On 8 June 2021, a detective Superintendent in the National Crime and Security Intelligence Service division of Garda headquarters updated a detective Superintendent in NCIU (National Criminal Investigation Unit) to say that she had verbally updated the Service Superintendent to the effect that a security clearance in relation to the applicant would not be issued at that time and noting that the Service had requested a written response and inquiring as to whether it would be possible for the security vetting unit to correspond with the Service Superintendent directly on that matter. 27. This resulted in Inspector Emmet Casserly of the National Crime and Security Intelligence Service contacting the Service Superintendent by phone on 10 June 2021. As I shall come to, the applicant placed considerable emphasis at the hearing before me on the content of a handwritten note of this call made by Inspector Casserly (the 7 handwritten note was part of the discovery in the proceedings). A typed transcript of the handwritten note of the call was put before the Court at the hearing. This transcript records Inspector Casserly saying to the Service Superintendent that the security and intelligence branch “normally don’t discuss directly with stakeholders” but was doing so as a courtesy on this occasion. The note stated that “vetting in this case is ongoing + waiting on action from external organisation to finalise and can’t say when finished”. (The external organisation referred to was the defence forces’ military police). Inspector Casserly records himself saying that security and intelligence “don't normally issue negative responses”. Inspector Casserly then offered a personal assessment that “they would not be in a position to issue clearance in this case”. The note then states “asked her if the candidate had been offered a position + she said that it is not the case but that they were in touch with the candidate + he is the preferred candidate but he must pass several factors to be given job + one of those is vetting.” It appears from the transcript that the Service Superintendent then requested correspondence stating that the candidate had not been cleared and Inspector Casserly replied that they could not issue such correspondence “as the process is ongoing + we are awaiting external reports so can’t finalise” (this is another reference to the military police). The note then stated “mentioned that AGS are in better position to defend position as it is likely to end up in courts”. The note then records Inspector Casserly informing the Service Superintendent that “we don't involve ourselves in appeal process + we advise that vetting is one part of an applicant's process and she shouldn't offer a job or not on the basis of vetting solely”. The note concluded by saying that the Service Superintendent “is clear that we will not currently be issuing any written report outlining [sic]”. The applicant reads sinister connotations into the latter parts of the note, in particular, as we shall come to. 28. The conversation between Inspector Casserly and the Service Superintendent on 10 June 2021 is in fact referenced in an e-mail exchange between the Service Superintendent and the Garda liaison Superintendent on 6 August 2021 when the Service Superintendent said that she was advised on 10 June 2021 by Inspector Casserley that the security vetting process in respect of the account was still underway at that time. 8 29. On 7 July 2021, the applicant was interviewed by military police as part of their ongoing investigation. This development was not notified by the applicant to the Commission. 30. On 23 July 2021, the applicant contacted the Commission by email looking for an update. He noted in this e-mail that “I realise elements may not be under your control but some indication of progress, if any, would be appreciated if at all possible. I do appreciate it might not be possible at this point to provide any clarity due to circumstances beyond your control. I am just reiterating that my intent to take up the role at the early earliest opportunity has not changed.” This e-mail might reasonably be read as a tacit acknowledgment by the applicant that security clearance was not proving straightforward as a result of the applicant's own knowledge of the military investigation that was ongoing in relation to his suspected wrongdoing; at this point the applicant had had his home searched pursuant to court warrant and had been interviewed by the military police as part of their investigation. 31. This e-mail was replied to by e-mail of 27 July 2021 where the Service stated that they had received no further update on the security clearance which remained outstanding. That e-mail was acknowledged by an immediate replying e-mail from the applicant expressing appreciation for the update. Again, no complaint was raised by the applicant about the fact that Garda clearance was still outstanding. 32. As I shall come to later, it appears that the applicant was suspended from at least some of his duties in July 2021. On 5 August 2021 the applicant issued plenary proceedings against various parties including the defence forces seeking to challenge the lawfulness of that suspension and claiming inter alia damages for misfeasance of public office. 33. The applicant did not make contact with the Commission again until 28 September 2021 when he emailed saying that he was anxious to get started and was looking for “any further updates or otherwise”. The Service recruitment officer replied on 29 September 2021 confirming that she had received no further updates on the applicant’s “security clearance” which “remains outstanding” and that she would let him know as soon as she had any further information. The applicant replied promptly expressing his appreciation for the update. 9 The Commission’s decision to terminate the applicant’s candidature 34. As time moved on, the Service were understandably anxious to fill the position of Captain of the Guard. The Service took the view that when security clearance for the applicant had not been forthcoming by 26 November 2021, it was appropriate to terminate the applicant’s preferred candidature and to regroup in relation to the appointment process. Accordingly, on 26 November 2021 the head of human resources in the Service wrote to the applicant referring to his application for the position of Captain of the Guard “and to our correspondence over a protracted period, pending receipt of security clearance for the consideration of your appointment to the role.” The letter stated “regrettably, clearance has not been forthcoming and at this juncture, given that the post has remained vacant for over 12 months, it has been decided not to proceed with your application. I appreciate that this will be disappointing but given the circumstances a decision has been taken to proceed otherwise to fill this important role as soon as practicable.” 35. The applicant, through his solicitor, replied on 29 November 2021 stating that while the applicant was aware of the delay on the part of AGS in providing a security clearance he had no prior notice of the decision not to proceed with the appointment and sought a 28 day pause on the decision not to proceed with his appointment. Correspondence relating to the matter was also sent to the Taoiseach on 29 November 2021 and to the Minister of Justice on 30 November 2021. 36. At this point the military police investigation into the applicant remained ongoing. AGS letter of 2 December 2023 37. On 2 December 2021, a Detective Chief Superintendent in AGS national security vetting unit wrote by letter to the Service stating that “at present we are not in a position to issue a security vetting clearance” for the applicant. 38. Further legal correspondence between the applicant and the service ensued, including a letter from the Service of 9 December 2021 standing over the propriety of its decision. 10 39. I have taken care to set out the chronology of material facts in some detail as it is necessary to assess the submissions made on behalf of the applicant in light of the full factual picture. Course of these proceedings and other proceedings 40. The applicant obtained leave to apply for judicial review on 10 December 2021. The High Court on that date made an order in the nature of an injunction restraining the appointment of any person to the position of Captain of the Guard pending determination of the proceedings but gave liberty to the respondents to apply to vary or remove that stay. I understand that this injunction was ultimately lifted to allow for the filling of the position on an interim basis, pending determination of these proceedings. 41. The military police investigation ripened into the preferment of formal charges against the applicant of breach of military law which were prepared at the end of January 2022. It appears that it was not possible to serve these charges on the applicant (who, it appears, went out on sick leave around this time) until his solicitor accepted service of the charges on his behalf on 15 July 2022. 42. These judicial review proceedings have had a protracted history. Apart from an extensive exchange of affidavits, the respondents were ordered to make discovery and such discovery was made (in a number of tranches in the case of AGS). It appears that the applicant issued separate plenary proceedings against the respondents claiming damages arising from the events the subject matter of this judicial review and that an application was made by the applicant to consolidate those plenary proceedings with these judicial review proceedings. (Those proceedings are separate proceedings from the proceedings issued by the applicant in August 2021 it in respect of his suspension from duties). That application was refused by the High Court (Hyland J.). 43. I was informed at the hearing of the judicial review that a court martial of the applicant in respect of alleged breaches of military law is proceeding before a summary military tribunal (which counsel for the applicant stated was a less serious form of military 11 tribunal process than would be put in place for very serious charges). The applicant is defending those charges of breach of military law and is of course entitled to a presumption of innocence in respect of those charges pending completion of the military tribunal process. While I did not have evidence of this before me, counsel for the applicant also stated during the hearing that the applicant had been out on sick leave “on and off” over the past two years. Summary of parties’ positions on the substantive application for judicial review 44. As already noted, the applicant seeks orders quashing the decisions embodied in the Commission’s letter of 26 November 2021 and AGS letter of 2 December 2021. The applicant maintains that the decision not to proceed with his candidacy for the position is in breach of fair procedures and his constitutional right to his good name. The gravamen of his complaint is that his rights were breached by virtue of the Commission/Service and AGS engaging in a secret, undisclosed security clearance process which he did not consent to, was not allowed engage with and which found no warrant in the candidate information booklet or in law. 45. The Commission for its part says that it was perfectly entitled to initiate security clearance checks with AGS in addition to standard Garda vetting, particularly given the security-sensitive nature of the Captain of the Guard position; that it communicated clearly and promptly with the applicant in relation to the security clearance process at all points and that it was ultimately perfectly entitled to terminate the applicant’s candidature when security clearance was not forthcoming given the pressing need to fill the position. 46. AGS says that it properly and lawfully carried out security clearance checks and maintained contact with the military police to get updates on the progress of the military police investigation which was an evolving process in the period from April to November 2021, and that it was perfectly rational and reasonable of it to conclude by 2 December 2021 that it was not in a position to grant security clearance for the applicant in light of the ongoing military police investigation. 12 47. Before analysing the issues arising, it is necessary to comment on some of the relevant affidavit evidence. Security clearance process 48. Inspector Casserly explained on affidavit in these proceedings the distinction between the functions conducted by the Garda national vetting bureau and the Garda national security vetting unit. The national vetting bureau deals with “standard vetting” i.e. checks for records of criminal convictions. In contrast, the national security vetting unit conducts wider checks including in relation to sensitive intelligence regarding state security and organised crime. This unit responds directly to the relevant stakeholder (in this case the Commission) and does not engage directly with an applicant for a position. Inspector Casserly explained that the national security unit is considered the second strand of vetting and does not carry out criminal conviction checks as such checks are carried out by the Garda national vetting bureau. He stated that the disclosure made by the national vetting bureau to the Commission on 21 April 2021 indicated that no data was disclosed in respect of the applicant, meaning that there were no criminal records in relation to the applicant to disclose. 49. Inspector Casserly stated that, in addition to the national vetting bureau’s standard vetting checks, the national security vetting unit carried out security vetting in respect of the applicant. He averred that the applicant’s details were submitted to the national security vetting unit on 12 April 2021 for the purposes of obtaining security clearance. This is clearly the “second strand” of security clearance which had been communicated by the Commission to the applicant in its email of 29 April 2021 (referred to at paragraph 20 above). He averred that during the security vetting process, information was provided that the applicant was the subject of an ongoing investigation by military police in relation to a serious criminal matter and that arising out of that fact security clearance could not be provided for the applicant while the investigation was ongoing. He averred that it was on that basis that security clearance could not be provided to the Commission. 50. Inspector Casserly further averred (as is borne out by the factual chronology set out earlier in this judgment) that the Garda National Crime and Security Intelligence 13 Service was in regular contact with the Superintendent’s section of the Houses of the Oireachtas to inform them that the security vetting process was ongoing and that ultimately on 2 December 2021 the Service were informed that AGS were not in a position to issue security vetting clearance for the applicant. 51. An application to cross-examine Inspector Casserly in these proceedings was refused (prior to discovery being made) on the basis that no material conflict of fact had been identified which necessitated cross-examination. No fresh application to cross-examine Inspector Casserly was made following discovery. I am quite satisfied that the truth of Inspector Casserly’s averments is borne out by the material exhibited to the affidavits before me in this judicial review application, including by the material discovered to the applicant by AGS and the Commission, which was put on affidavit by the applicant in these proceedings. The military police investigation 52. Apart from Inspector Casserly’s affidavit evidence, it is clear from the material discovered in the context of these proceedings, and put in evidence before the court by way of an affidavit from the applicant, that the applicant was the subject of a formal investigation commenced by military police in November 2020. The military police had sent a formal data request to AGS on 20 November 2020. This request noted that the military police were conducting an investigation into “alleged misuse of defence forces property” by members of the defence forces and sought information in relation to the applicant. 53. As part of the security clearance process, a detective Superintendent at the national security vetting unit wrote to the Detective Chief Superintendent of the National Bureau of Criminal Investigation on 23 April 2021 saying that the applicant was being security vetted by the unit and that it had come to at the unit's attention that the applicant was suspected of being involved in “the illegal collection, storage and supply of munitions/firearms”. 54. A similar query was sent by Inspector Casserly to the Directorate of Intelligence in the defence forces. This was replied to by letter dated 14 May 2021 from the defence forces’ 14 Directorate of Intelligence. This letter stated that the military police investigation into the applicant was initiated in November 2020 and was ongoing; that military police had indicated that they had sufficient evidence to initiate disciplinary proceedings against the applicant for a number of offences against military law including possession of a large quantity of defence forces munitions; that his home had been searched under District Court warrant on 11 May 2021; that it was hoped that he would be interviewed under caution by military police the following week and that it was the intention of the military police to conclude the investigation by the end of May 2021. 55. That interview did not ultimately take place until 7 July 2021, as noted earlier in this judgment. It further seems that the military police investigation led to the suspension of the applicant from at least some of his duties in July 2021. 56. From an AGS security clearance perspective, the fact of this military investigation was clearly relevant to the question of whether security clearance could be provided by the applicant and the Garda national security vetting unit understandably sought to await developments in the military police investigation before forming a view on the security clearance questions. Fair procedures case Importance of context 57. As I noted in my recent judgment in Clarke v Minister for Housing, Local Government and Heritage [2024] IEHC 2 (“Clarke”), at para. 35, it is clear from the authorities that the question of fair procedures must be assessed in context and the extent of fair procedures to be afforded in any given context is inherently fact-sensitive. I would add that the extent of any fair procedure entitlements will also depend on the nature of the rights or interests of the applicant at stake. Here, the fact that the challenge is to the fairness of the procedures in a recruitment process is important context when assessing the extent of the fair procedures to which the applicant is entitled. While the applicant can legitimately say that he had an interest in the outcome of the competition process, 15 he never at any point had any right to be awarded the position. This was indisputably so, irrespective of his suitability for the position. 58. Other observations I made in Clarke (which also concerned a judicial review challenge to a public service recruitment process, albeit to different features of that process to those involved here) are also relevant to the issues I have to address in this case: namely the fact that the process is not one involving determination of fundamental human rights or a process such as a disciplinary process which may involve findings adverse to an applicant’s rights (see Clarke para. 37). The context rather is one of recruitment process for a position where an applicant for the position, even one who is identified as the preferred candidate, has no right whatsoever to obtain the position. This holds true even if the preferred candidate otherwise meets the suitability criteria and passes all relevant checks including security clearance checks. Here, it was made clear to candidates at the outset that the final decision on a successful candidate was at the ultimate discretion of the Taoiseach. As can be seen from the record of the exchanges between the Commission/Service and the applicant set out earlier in this judgment, the Commission/Service consistently made clear in its interactions with the applicant that the fact that he was the preferred candidate did not mean that he was necessarily going to be awarded the position. 59. While the respondents accepted that the recruitment process here is in principle justiciable by way of judicial review, it seems to me that there must be real limits to a court’s entitlement to intervene in such a recruitment process by way of judicial review, even where that process is in respect of a public service position and where the process is governed by codes or published ground rules emanating from statutory or public bodies. This is so because (apart, potentially, from rights pursuant to GDPR or the Employment Equality Acts) no rights of the applicant are engaged per se in such a recruitment process and the applicant was not induced to forego any existing benefit or entitlement in order to compete in the process. While it could be seen how in principle such a process might be amenable to court intervention by way of judicial review in extreme circumstances (such as mala fides or capriciousness), in the ordinary course it is no business of the courts to become involved in reviewing the steps taken in such a recruitment process. 16 60. Given the markedly different context, it cannot plausibly be contended that such a recruitment process gives rise to the types of fair procedural entitlements that might be appropriate in the context of a criminal process; or an adjudicative civil process that stands to adversely impact on an applicant’s rights or interests (such as a professional or employment disciplinary context); or a tribunal of inquiry or commission of investigation which might lead to public findings which impugn an interested party’s good name. To take some obvious examples, it could not plausibly be contended that an applicant for a public service job competition would be entitled as a matter of public law fair procedures to be kept informed of (and, if necessary, make representations in relation to) stages in that process which might result in the applicant being ruled out for the job e.g. because a referee has not given a good reference or a medical examination discloses issues with the applicant’s health. 61. I do not see that the position is any different in principle in relation to security clearance checks conducted on a candidate for a manifestly security-sensitive public service position. Security clearance is simply another part of the fact-checking/appraisal process engaged in during the recruitment process for a position that has a security- sensitive dimension. As set out at paragraph 7 above, the candidate information booklet had a section headed “security clearance” which made clear that police vetting would be sought and which envisaged wide security checks within its terms. The applicant consented to Garda vetting. He also consented to such other inquiries as would be appropriate to determine his suitability for the position. Given the nature of the position, common sense dictated that such inquiries would extend to a general Garda security clearance check. Common sense equally dictates that the subject of such a security clearance check would not have some sort of rolling right of engagement or representation-making in that process. 62. I should note at this juncture that counsel for the applicant placed considerable reliance on Mallak v Minister for Justice [2012] 2 IR 297 (“Mallak”) as supporting his case. Mallak is best known as a “reasons” case, based on the dicta of Fennelly J in that case that “persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.” (at para. 69, p322). Counsel for the 17 applicant relied on the preceding paragraph in the judgment of Fennelly J which stated as follows: “[68] In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.” 63. Counsel for the applicant in particular relied on the reference in this paragraph to the requirement of a process being “fair, open and transparent” and “the affected person being enabled to respond to the concerns of the decision maker.” 64. I should note that this latter paragraph in Mallak was in turn preceded by the following paragraph: “[67] Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.” 65. The applicant did not, in his amended statement of grounds, seek to make a “reasons” case as such. That is understandable in circumstances where the reason for the Commission’s decision of 26 November 2021 is clear on its face (i.e. that security clearance had not been forthcoming for the applicant). Insofar as it is argued that Mallak is authority for a wider proposition that an applicant in a recruitment process is entitled to be enabled at all relevant stages to respond to the concerns of the decision-making recruiter, I do not believe that Mallak can be so read. Mallak dealt with the very different context of an application for a certificate of naturalisation where no reasons 18 whatsoever were given for a decision refusing the applicant’s application. Here, the applicant was simply the preferred candidate in a job competition. He wanted the reason why his candidature was terminated. The context did not entitle him to be enabled at all relevant stages in the competition process to respond to any concerns of the decision- making recruiter, regarding his candidature. Alleged lack of transparency re security clearance 66. While the candidate information booklet understandably emphasises that the competition process will be a fair and transparent one, that commitment has to be viewed in context. The applicant here was kept informed at all times by the Service/Commission that the “second phase” of security clearance was ongoing and had not reached a conclusion. That seems to me to be sufficient discharge of any obligations of transparency which the Commission may have had in the process. 67. While the applicant sought to characterise the security clearance process as some form of secret, unauthorised, underhand process, the reality is far more prosaic: the Commission, through a Garda Superintendent attached to the Houses of the Oireachtas Service, sought security clearance from AGS in relation to a manifestly security- sensitive position in our national houses of parliament. The candidate information booklet made it clear that security clearance in the form of police vetting was required. The Commission told the applicant that they were waiting on such security clearance and kept him informed at all times of the status of the security clearance process. AGS were aware from information on their files that a military police investigation into the applicant was underway. That was correct as a matter of fact. AGS contacted the defence forces for updates on that investigation and such updates were provided. The applicant was at all times well aware of the fact of this military police investigation. The complaint as to lack of transparency or some fundamental unfairness in process simply does not get off the ground in the circumstances. Alleged capriciousness 68. The applicant complains that the security clearance process was a capricious one with no lawful authority or oversight. I do not agree. The Service, through a Garda 19 Superintendent, asked AGS, an agency with statutory responsibility for both standard vetting and matters of national and public security to conduct standard vetting and a wider security clearance check. The applicant effectively agreed when signing up to the competition process that the Commission/Service could conduct police vetting and make such other inquiries as it deemed fit relating to the suitability of his candidature. It simply cannot be gainsaid but that a security clearance check was appropriate to the question of the suitability of the applicant to a manifestly security-sensitive position in our national houses of parliament. 69. There was no capriciousness or arbitrariness involved. The security clearance checks revealed quite correctly that the applicant was at the time of his preferred candidature under active investigation by military police for ostensibly serious criminal matters. When it was indicated by the military police to AGS in May 2021 that this investigation might conclude reasonably promptly, the AGS took time before expressing a final view on whether it could issue clearance. The military investigation ended up becoming more protracted than initially expected. This inexorably led to AGS not being in a position to give a quick decision on security clearance. The Commission was under pressure to fill the position. By 26 November 2021, when the position had remained unfilled for almost a year, the Commission decided to make a call on the applicant’s continued candidature in circumstances where such clearance was not forthcoming. That was a perfectly straight, fair and reasonable step to take and was communicated to the applicant in perfectly fair and reasonable terms. 70. The applicant also made reference in his submissions to being denied security clearance as a result of some form of shadowy process of innuendo. I do not accept that characterisation. While of course the courts will be careful to ensure in appropriate contexts that an individual’s reputation is not traduced by false, improperly conveyed and damaging rumors or innuendos, this is manifestly not such a case. The applicant was the subject of a military police investigation. A District Court judge was satisfied to issue a warrant pursuant to the Offences against the State Act 1939 authorising a search of the applicant’s home on the basis of commission of suspected offences relating to firearms/munitions. The applicant was interviewed by military police in July 2021. He was suspended from at least certain aspects of his duties it appears in July 20 2021 also. (I am not in possession of any fuller information in relation to that suspension as the applicant chose not to put any evidence before the court in relation to that matter other than exhibiting a plenary summons issued on his behalf on 5 August 2021 in which he sought various reliefs directed towards reversing that suspension.) Since the termination of the recruitment process insofar as it concerned him, the applicant has been the subject of formal charges by military police of contraventions of military law and is currently facing a court martial hearing before a summary military tribunal. 71. It is proper to record that the applicant protests his innocence of the alleged contraventions of military law and, as I have already noted, he is of course fully entitled to the benefit of a presumption of innocence at this stage of that process. However, the process of recruitment engaged in by the Commission in respect of the position of Captain of the Guard is not a criminal or disciplinary process nor is it any form of adjudicative process or tribunal of inquiry. It is ultimately a recruitment process for a job, albeit a job with a significant security dimension in our national houses of parliament. The fact that the applicant was the subject of a military police investigation was something which the Commission was entitled to find out about and to have regard to as appropriate. Ultimately, matters did not even get that far from the Commission's perspective as it took the view on 26 November 2021 that the mere fact that security clearance had not yet issued despite a number of months being allowed for that purpose was sufficient to cause it to terminate his candidature. 72. It has to be said that there was a somewhat unreal approach taken by the applicant to the characterisation of these events as somehow amounting to a sinister, secret process (the word “Kafkaesque” was repeatedly used by counsel for the applicant during the course of the hearing to describe the security clearance process). The objective facts are these: the applicant was identified as the preferred candidate for a public service position with an important security dimension. In addition to standard Garda vetting (i.e. identification of whether the applicant had any criminal record) the Commission also deemed it appropriate to request AGS to give security clearance for the applicant. The entitlement of the Commission to conduct security clearance including “police vetting” and such further inquiries as to the suitability of the candidate as it deemed appropriate was set out in the candidate information booklet. That entitlement was understandably engaged here. Indeed, one would have thought that the Commission 21 would be falling down in its responsibilities were it not to arrange for security clearance checks on the preferred candidate for such a security-sensitive position. The applicant was told that a security clearance process was initiated and was kept updated in relation to that. He never took issue with the fact that a security clearance process was ongoing. It is difficult to imagine that the applicant had no inkling whatsoever as to what might have emerged from such a security clearance process. When a positive security clearance was not forthcoming after some seven months the Commission decided to move on and terminate the applicant's candidature. There is nothing “Kafkaesque” in any of this. Alleged lack of lawful authority for security clearance exercise 73. The applicant seized on an averment by Inspector Casserly that “it fell upon the Garda national security vetting unit to carry out security vetting in respect of the applicant” to submit that this indicated that the process was conducted without statutory or lawful authority. I do not accept this. Security vetting other than standard vetting is clearly within the general functions of AGS as set out in Section 7 of the Garda Síochána Act 2005 (“the 2005 Act”). 74. Section 7(1) of the 2005 Act provides that “The function of the Garda Síochána is to provide policing and security, including vetting, services for the State with the objective of [inter alia] (d) protecting the security of the State”. Section 7(2) provides that “For the purpose of achieving the objective referred to in subsection (1), the Garda Síochána shall co-operate, as appropriate, with other Departments of State, agencies and bodies having, by law, responsibility for any matter relating to any aspect of that objective.” 75. While there is legislation dealing specifically with “standard” Garda vetting (being the National Vetting Bureau (Children and Vulnerable Persons) Act 2012), Inspector Casserly’s affidavit makes clear that AGS also conducts non-standard vetting security clearance checks outside the 2012 Act. In my view, such wider security clearance checks come within the broad policing and security functions of AGS covered by section 7 of the 2005 Act. Given that the Houses of the Oireachtas Service has a role in ensuring the security of our national houses of parliament (as evidenced by the role of the Superintendent’s unit of the Houses of the Oireachtas Service and, indeed the position of Captain of the Guard itself), in my view it is clear that AGS were lawfully entitled to conduct wider security clearance checks in relation to a preferred candidate for the Captain of the Guard position. 22 76. Accordingly, the process of conducting security clearance checks was performed by the appropriate agency for such a task, being AGS. The entitlement of AGS to conduct such security clearance, separate from standard Garda vetting, is encompassed by the terms of section 7 of the 2015 Act. AGS did not in any way exceed an appropriate discharge of its security clearance function on the facts here: it made contact with the military police attached to the applicant’s employer, the defence forces, in circumstances where AGS was aware (not least from a data access request sent by the military police to AGS for records relating to the applicant’s suspected involvement in criminal matters) that the military police were conducting an investigation into suspected unlawful activities of the applicant. Despite apparent attempts by the applicant in his affidavit evidence before the court to deny any knowledge of the purpose or subject matter of the investigation, it is clear the applicant himself was well aware that he was the subject of an investigation by the military police during this period. Alleged introduction of new eligibility criterion 77. The applicant submits that the requirement for security clearance in addition to Garda vetting constitutes a new further eligibility criterion not provided for in the published conditions for the appointment process. He says that he did not consent to this separate, undisclosed process. In my view, this contention is based on an unduly restrictive reading of the relevant terms of the candidate information booklet. As already explained, the Commission was entitled to ask AGS to conduct a security clearance check and AGS was entitled to conduct such a check. It was a manifestly sensible step to take in respect of such a security-sensitive public service position and could not an any reasonable view be regarded as representing a new and unauthorised eligibility criterion for the position. Alleged interference by AGS in Commission’s decision-making process 78. The applicant contends that the Garda took on a role of deciding whether or not the applicant should be appointed, a function outside their competence. He further contends that the call of 10 June 2021 between Inspector Casserly and the Service Superintendent evidences an unlawful interference by AGS in the commission’s selection process. He 23 relies in this regard on the note of the call between Inspector Casserly and the Service Superintendent on 10 June 2021 discussed earlier in this judgment (at para. 26). For the reasons set out below, I see no basis for such contentions. 79. As noted earlier, the conversation between Inspector Casserly and the Service Superintendent on 10 June 2021 is in fact referenced in an e-mail exchange between the Service Superintendent and the Garda liaison superintendent on 6 August 2021 when the Service Superintendent said that she was advised on 10 June 2021 by Inspector Casserley that the security vetting process in respect of the applicant was still underway at that time. That in substance is what the call relayed to the Service Superintendent: that AGS were waiting on action from “an external organisation” (being the military police) before they could finalise their view on security clearance for the applicant. 80. Inspector Casserly is recorded in his note of the call as offering an opinion on the likely outcome of the clearance process. This expression of opinion - which in truth was a perfectly sensible opinion in the circumstances - can hardly be taken as unlawful interference in the Commission’s decision making process. Nor do I read anything improper in the note of the last part of the call where there is a reference to Inspector Casserly advising that vetting is one part of the applicant’s process and that the job should not be offered or not solely on the basis of vetting. That is to no more than state the obvious – vetting is simply one part of the overall selection process. There is simply no evidence substantiating the serious allegation that AGS somehow tried to interfere with the Commission’s decision-making and I find that no such interference occurred. 81. I should also note that is objectively clear from the record of e-mail exchanges between the Service Superintendent and AGS that what was happening in the period April to November 2021 was that the Commission was chasing AGS for updates on the security clearance position and AGS were carefully and correctly conveying the position that they were not in a position to give security clearance (given that they were awaiting on developments in the military police investigation). 24 Alleged delay in determining security clearance 82. The applicant sought to make a case in delay against the Commission and AGS arising out of the alleged delay in deciding on the question of security clearance. He relied in this regard on authorities such as Point Exhibition v Revenue Commissioners [1993] 2 IR 551, ZMH v Minister for Justice and Equality [2021] IEHC 221 and Holland v Minister for Justice and Equality [2023] IECA 73. These authorities confirm the principle that unreasonable delay in issuing an administrative decision may be treated as a refusal such as to entitle an applicant to an order of mandamus compelling a decision on the underlying application. 83. I do not see that those principles are engaged on the facts of this case. Inspector Casserly responded to the allegation of delay on the part of AGS in processing the security clearance application by averring that any delay stemmed from the fact that security clearance could not be provided due to the ongoing military police investigation. He averred that these processes take time due to their seriousness and gravity but that “it was abundantly clear that once the information regarding the investigation into the applicant in relation to a serious criminal matter was in the possession of AGS, security clearance could not be given under all of the circumstances”. He concluded by noting that the reason why security clearance was not provided was because the applicant was under investigation by military police in relation to a serious criminal matter and that this process was ongoing. I accept these averments as representing the true position. 84. This was not a case of a decision maker unreasonably sitting on its hands and refusing to make a decision. The Commission was reliant on AGS for security clearance. The Commission kept the applicant in the loop in that regard. The Commission followed up regularly with AGS who followed up regularly with the military police. There was no culpable delay involved. In any event, this is not a situation where no decision was taken by the decision-maker: the Commission clearly took a decision, as communicated to the applicant on 26 November 2021, that it was not going to proceed with his candidature because security clearance had not been forthcoming. The authorities relied upon by the applicant do not avail him in the circumstances. 25 Alleged breach of right to good name 85. For completeness, I should say that I find no basis for the contention that the applicant’s right to his good name was infringed in the recruitment process or the decisions underpinning it. No authority was opened on behalf of the applicant in support of this contention. Quite apart from the fact that the Commission’s communications with the applicant and AGS were kept private, no good name implications are ordinarily involved where a prospective employer decides not to proceed with the candidature of a candidate for a position, and where such rejection is communicated privately to the applicant for the position. The fact that AGS identified that the applicant was as a matter of fact the subject of an ongoing military police investigation was again not something which implicated his right to a good name. It was simply a relevant (and correct) fact identified by AGS in the course of establishing whether he should be granted security clearance. 86. As noted earlier, the applicant is of course entitled to a presumption of innocence in the court martial process at least until that process concludes with any contrary determination. But that presumption of innocence is quite a different matter from the question of whether a (confidential) process can be engaged in by a public body when recruiting for a security-sensitive public service position to establish facts relevant to the question of the suitability of the candidate for that position, particularly where that process simply identified as a matter of fact that the applicant was the subject of an ongoing military police investigation. No breach of the applicant’s right to his good name arises at all in these circumstances. Conclusion on fair procedures case against Commission 87. The applicant, as he properly accepts, had no right to be awarded the job. Security clearance was flagged in the booklet as a likely step and was as a matter of common sense engaged in by the Commission in respect of a manifestly security-sensitive position. The Commission in its communications with the applicant at all times made clear that there was a process of security clearance ongoing and kept him in the loop in relation to that. That security clearance process did not step beyond any reasonable or lawful bounds. It in fact correctly established that the applicant was the subject of an 26 ongoing military police investigation into prima facie serious matters. AGS in fairness to the applicant did not jump to refusing security clearance but rather reasonably awaited detail as to the outcome of the military police investigation. That investigation took longer than originally envisaged. When objectively viewed through the prism of what in fact was going on in the period May to November 2021, I do not see how the applicant has any ground for legal complaint in terms of the lawfulness of the process or how that process was, in any sense of the word, unfair. 88. I should also note for completeness that the applicant failed to avail of the review process set out in the booklet for the competition. He complained that he was unable to avail of the review process because he did not have sufficient information as to the basis of the Commission’s decision of 26 November 2021. I do not accept that this is a good ground for not availing of the review process. He was in as good a position in the days following the decision to terminate his candidature to make a complaint to the Commission, by way of the review mechanism, that the decision was wrong as he was when he launched these judicial review proceedings. Given the necessarily limited role of judicial review in relation to a job recruitment process such as this, it is all the more important that dissatisfied candidates avail of any independent review mechanism provided for before having recourse to the High Court. Challenge to decision of AGS of 2 December 2021 89. The applicant was granted liberty to amend his statement of grounds in June 2022 (with a follow up procedural order in relation to the logistics of presentation of the amended grounds made in November 2022). In his amended statement of grounds, he sought an order of certiorari quashing “the purported decision or non-disclosure of a decision and the letter dated 2 December 2021” (being the letter from the security and intelligence section of Garda headquarters to the Commission in which it was stated that AGS were not in a position to give security clearance for the applicant). 90. The applicant complains that this letter was the manifestation of a “non-process”. Assuming for present purposes that the decision embodied in the letter of 2 December 2021 is amenable to judicial review, I do not see that it is infected by any unlawfulness. The letter stated that “at present we are not in a position to issue security vetting 27 clearance for [the applicant]". That was factually correct and a perfectly reasonable decision for AGS to arrive at in light of their knowledge of the ongoing military police investigation. The letter represented the outcome of a process whereby, as explained by Inspector Casserly, the AGS had patiently engaged with the military police over a period of a number of months to ascertain the likely outcome of the military police investigation. As already explained, AGS had a lawful authority to conduct the security clearance exercise. I see no basis for the order of certiorari sought in the circumstances. The applicant’s data protection case 91. The applicant belatedly sought to introduce a data protection dimension to his case. In his amended statement of grounds, the applicant sought a declaration “that the Commission may not rely on information obtained in circumstances of a failure to act promptly, expeditiously and with due regard to the applicant’s rights under the data protection acts and the Constitution.” 92. The only ground in the grounds for relief which referenced data protection was the following ground: “notwithstanding that the applicant's nomination had been forwarded to the department of An Taoiseach, a request was made to the security and intelligence section Garda headquarters for security clearance unbeknownst to the applicant who was unaware of the existence of such a unit and had not consented to this process. There is no statutory basis for this process. AGS was required to ascertain the applicant’s explicit consent to this process under section 36(1)(a) of the Data Protection Act 2018 and Article 4(11) GDPR but failed to obtain same.” 93. As can be seen, while the pleaded ground in support of the declaratory relief sought focused on AGS, the declaratory relief is clearly directed towards the Commission. While section 117 of the Data Protection Act 2018 (“the 2018 Act”) grants a jurisdiction to this court to grant inter alia declaratory relief in respect of a data protection infringement, I was not addressed on the circumstances in which such a declaration 28 would be appropriate, particularly where no data protection breach process under the 2018 Act has been engaged in by the DPC. 94. The manner in which the data protection case was pleaded, and was the subject of (very limited) oral and written submissions, adds to my concerns. The respondents legitimately complained that the applicant had not specified the nature of the data said to be the subject of the infringement and the precise infringement involved. The applicant’s position in general terms was that his data had been processed by AGS without his consent. However he did not specify precisely the personal data said to be in issue. No relief was sought against AGS in respect of this alleged infringement. Counsel for AGS made submissions as best he could in the face of the lack of clarity of the applicant’s data protection breach case, and emphasised that issues relating to national security were either outside GDPR altogether, or were the subject of appropriate exemptions from the consent principle. 95. Ultimately it seems to me that the applicant’s application for declaratory relief in relation to alleged data protection breaches as regards the Commission has not been made out on its own terms. The applicant has not identified what information the Commission improperly relied upon as flowing from the alleged data protection breach. The Court did not even have before it the Garda vetting form in fact signed by the applicant. Ultimately, the Commission was not furnished with any personal information relating to the applicant other than updates to the effect that the security clearance process in relation to him was ongoing. There was no evidence for example that the Commission was furnished with the military police investigation file or other data to which is was not reasonably entitled. The Commission decided to terminate the applicant’s preferred candidacy in circumstances where it had not received security clearance for the applicant. That was simply a matter of fact and did not on the face of it entail any reliance on unlawfully obtained personal data. 96. While issues under GDPR could well arise as to appropriate application of data protection principles to various security clearance and national security contexts, I would prefer to hold over consideration of such issues to a case in which they are 29 properly engaged on the evidence and pleadings and are the subject of full and relevant legal submission. This is not such a case. Conclusion 97. In my view, for the reasons set out above, the applicant has not made out a case for any of the reliefs he seeks in respect of the Commission’s decision of 26 November 2021, the AGS communication of its position on security clearance for the applicant contained in its letter of 2 December 2021, or the decision-making processes leading to those decisions. 98. I will accordingly make an order dismissing the proceedings in their entirety. 30