Supreme Court quashes naturalisation refusal, mandating enhanced disclosure of national security reasons.

THE SUPREME COURT

Record No. 74/2018

Clarke C.J.

O’Donnell J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.

Between

A.P.

Applicant/Appellant

And

The Minister for Justice and Equality

Respondent

Judgment of Mr Justice Clarke, Chief Justice, delivered the 31st May, 2019.

1. Introduction

1.1 On 1 September 2014, the respondent (“the Minister”) made a decision to refuse an application by the appellant/applicant (“Mr.

P.”) seeking naturalisation as an Irish citizen. Thereafter, Mr. P. brought these proceedings in the High Court in which he sought, in

substance, to quash that decision of the Minister and to obtain an order of mandamus requiring the Minister to disclose the

information on which the decision to refuse was based.

1.2 While it will be necessary to go into the background facts in a little more detail in due course, in essence the underlying basis for

Mr. P.’s proceedings stemmed from the fact that the only reason given for the Minister’s refusal was stated to be on the basis of

national security considerations. However, the basis for the Minister reaching a conclusion that national security interests justified

both the refusal of Mr. P.’s application for naturalisation and the refusal to provide any further details was not specified to any

greater extent than the assertion that national security justified those decisions.

1.3 There had been a previous successful application by Mr. P. to the High Court following an earlier refusal by the Minister to grant

Mr. P. a certificate of naturalisation in April 2013. The Minister provided no reason for the refusal on this earlier occasion, relying on

certain provisions of the Freedom of Information Act 1997, as amended, for so doing. The High Court (McDermott J.) held that there

was nothing to inhibit the Minister from providing both a reason for the refusal of the application and a justification for the withholding

of any information pertaining to the underlying basis for that reason. On that basis, the High Court granted an order of certiorari

quashing the decision of the Minister (A.P. v. Minister for Justice and Equality (No. 2) [2014] IEHC 241). Thus, it was made clear that

the Minister was required to give some reasons. In addition, in the course of those previous proceedings, certain documents were

disclosed to Mr. P., although privilege was claimed and sustained in respect of other documentation.

1.4 Thus, the position had evolved, by the time of these proceedings, to one in which Mr. P. had access to certain limited information

and had been given the broad reason of national security for the Minister’s decision. In essence, the issue which was before the High

Court in this case was as to whether that was sufficient to meet Mr. P.’s entitlements and the Minister’s obligations.

1.5 The High Court (Stewart J.) found in favour of the Minister (A.P. v. Minister for Justice and Equality [2016] IEHC 408). Mr. P.

appealed to the Court of Appeal which, again, through two separate judgments delivered respectively by Gilligan and Hogan JJ., found

for the Minister (X.P. v. Minister for Justice and Equality [2018] IECA 112). It was against that decision of the Court of Appeal that

Mr. P. sought leave to appeal to this Court. It is first appropriate to turn to the basis on which leave to appeal was granted.

2. Leave to Appeal

2.1 By determination dated 25 September 2018 (A.P. v. The Minister for Justice and Equality [2018] IESCDET 131), this Court granted

leave to Mr. P. to appeal the decision of the Court of Appeal on the following grounds, as set out in para. 11 thereof:-

(i) Whether the grant of citizenship is within the unfettered discretion of the Minister for Justice and Equality and, if

so, whether any procedures inure to the benefit of an applicant?

(ii) Whether national security issues need to be disclosed to an applicant for citizenship in such a way as to enable

that applicant to meet, or at least make any relevant representations that may be thought appropriate, those

concerns prior to any decision against a grant of citizenship is made?

(iii) Whether fairness of procedures demands that a decision internal to the Department of Justice and Equality to

refuse citizenship be reviewed externally and by what mechanism?

(iv) Whether the European Union Charter of Fundamental Rights and Freedoms governs the application for and

refusal of citizenship by the Minister for Justice and Equality?

2.2 In order to more fully understand the precise issues which arise on this appeal, it is appropriate to set out the facts and the

proceedings to date in a little more detail.

3. The Facts and the Proceedings to Date

3.1 By way of background, Mr. P. is an Iranian national who was granted refugee status in Ireland in December 1991. Since that time,

he has made a number of applications for a certificate of naturalisation under the provisions of the Irish Nationality and Citizenship Act

1956, as amended (“the 1956 Act”), all of which have been denied. The most recent application for naturalisation was made by Mr. P.

in August 2011. As mentioned above, on 30 April 2013, the Minister issued a first decision in respect of that application, refusing to

grant Mr. P. a certificate of naturalisation. The Minister provided no reason for the refusal of this application, relying on certain

specified provisions of the Freedom of Information Act 1997, as amended, for so doing.

3.2 Mr. P. challenged this decision in the High Court by way of judicial review, seeking an order of certiorari quashing the Minister’s

decision, an order of mandamus requiring the Minister to provide the reason for his decision and a declaration that the Minister’s

failure to provide reasons was unlawful, on grounds, amongst other things, that the Minister’s actions breached his right to fair

procedures, constitutional justice and an effective judicial remedy.

3.3 In the course of these earlier proceedings, an affidavit was filed on behalf of the Minister by Mr. John Kelly, Assistant Principal

Officer in the citizenship section of the Department of Justice and Equality, alluding to the existence of certain confidential documents

concerning the application and Mr. P.’s background (Documents A, B and C), which underlay the basis for the Minister’s refusal to

grant a certificate of naturalisation and over which the Minister asserted public interest privilege. The basis for the claimed privilege

was that the disclosure of the documents in question would be adverse to the interests of the State. Mr. P. sought to contest the

privilege claimed and to be permitted to inspect the documents referred to in Mr. Kelly’s affidavit.

3.4 In a judgment delivered by McDermott J. on 17 January 2014 (A.P. v. The Minister for Justice and Equality [2014] IEHC 17), the

relevant documentation on which the Minister relied was reviewed and the claim of public interest privilege was examined. It was held

that Document A should be disclosed in full, that Document B should be disclosed in a redacted form and that it was in the public

interest that the Minister’s claim of privilege over Document C should be upheld in its entirety. This decision was not appealed. The

disclosed documents indicated that a recommendation had been made to the Minister that Mr. P. should not be granted a certificate

of naturalisation because the author of the report could not be satisfied that he met the “good character” requirement of s. 15(1)(b)

of the 1956 Act, as amended.

3.5 Following a hearing of the substantive judicial review proceedings, in a judgment of the High Court (McDermott J.) delivered on 2

May 2014 (A.P. v. Minister for Justice and Equality (No. 2), as previously referred to), it was held that the decision of the Minister

should be quashed on the basis that the cited provisions of the Freedom of Information Act 1997 did not assist in providing an

understanding of the decision-making process or the reasons for the refusal of the application. Further, having regard to the

existence of the reason for the refusal as disclosed in the relevant documentation, McDermott J. held that the Minister was in a

position to give notice of Mr. P.’s failure to fulfil the statutory requirement of “good character” and if it was considered appropriate to

refuse to disclose any further information as to the underlying basis of that conclusion, a justification should have been furnished in

that regard based on the fact that the recommendation was made on the basis of information which was properly the subject of

privilege.

3.6 Mr. P.’s application of August 2011 was then submitted for reconsideration together with further submissions on the part of Mr. P.

On 1 September 2014, the Minister issued the decision refusing to grant a certificate of naturalisation which is the subject matter of

the current proceedings. The refusal was made on the basis of a report prepared by the office of the Minister dated 9 July 2014 which

was signed by the Minister and furnished to Mr. P. on behalf of the Minister along with her decision to refuse his application. This

recommended against the grant of a certificate of naturalisation was on the grounds that:-

“…[T]he Minister cannot have confidence in [the applicant’s declaration of fidelity to the Irish State and his undertaking

to faithfully observe the laws of the State and to protect its democratic values] in this case nor be satisfied that the

applicant meets the condition of good character as specified in s. 15(1)(b) of the Irish Nationality and Citizenship Act

1956 as amended…”

3.7 The report makes clear that this recommendation was based on an “attached report” which contains information regarding Mr. P.

received on a strictly confidential basis and which appears to relate to “national security/international relations considerations”. It is

further stated that the information contained within the confidential report cannot be disclosed on the basis of the “State’s interest in

protecting its security and international relations” which were said to outweigh Mr. P.’s interests in knowing the Minister’s specific

basis for refusing to grant a certificate of naturalisation. It appears from the affidavit evidence of Mr. John Kelly, filed on behalf of the

Minister, that the confidential report which was attached to the report of 9 July 2014 is the same as that described as Document C in

the judgment of McDermott J. delivered on 17 January 2014, over which a claim of privilege had been sustained.

3.8 Mr. P. subsequently initiated these judicial review proceedings, seeking, amongst other things, an order of certiorari in respect of

the decision of the Minister dated 1 September 2014 and an order of mandamus requiring the Minister to disclose the gist of the

information which forms the basis for the refusal. In the decision of the High Court, Stewart J. held that Mr. P. failed to discharge the

burden of proof on him to establish that there was an error in the decision making process engaged in by the Minister and refused to

grant the reliefs sought. This conclusion was reached on the basis, amongst other things, that the interests of national security

comprised a legitimate justification for the decision of the Minister not to issue reasons for her decision. Further, she considered that

the finding of McDermott J. that Document C should remain confidential was res judicata and that to disclose the gist of Document C,

as requested by Mr. P., would effectively lead to the disclosure of some measure of the document’s content.

3.9 This decision was upheld by the Court of Appeal (Gilligan, Hogan and Peart JJ.). In his judgment, Gilligan J. agreed with the

conclusion of the trial judge, noting that, in compliance with the duty of an administrator to give reasons as set out in Mallak v.

Minister for Justice [2012] IESC 59, [2012] 3 I.R. 297, Mr. P. was given a reason for the refusal of his application, namely that it was

in the interests of national security. Further, reliance was placed on the judgment of McDermott J. of 17 January 2014 to the effect

that it was in the public interest that aspects of Document B and the entirety of Document C remain confidential. Considering that

the grant of citizenship was a privilege, and that the decision of the Minister did not deprive the appellant of his liberty, Gilligan J.

concluded that the interests of national security outweighed the interests of Mr. P. to know the content of the materials relied on

and that it was within the Minister’s discretion to refuse to release the same.

3.10 Hogan J., concurring, emphasised that the judicial finding of McDermott J., to the effect that the material which was not

disclosed to Mr. P. in the course of the application presents real and pressing national security concerns, meant that the fair

procedure rights of Mr. P. must be necessarily constrained. Further, he held that the creation of a system of special counsel, as

exists in other jurisdictions, lies outside the scope of the judicial function.

3.11 Finally, Hogan J. rejected the submission made on behalf of Mr. P. that the Minister’s refusal involves the implementation of

European Union law for the purposes of invoking the guarantees to good administration and the right to an effective remedy contained

in the EU Charter of Fundamental Rights and Freedoms. He found that the decision to grant citizenship by naturalisation represents an

exercise of sovereign power by the State, in accordance with the Article 9.1.2 of the Constitution. In his view, such a decision

remains a matter exclusively for the Member State and therefore does not involve the implementation of Union law. On that basis, he

held that the EU Charter of Fundamental Rights had no application to the issues presented on the appeal.

3.12 As noted earlier, the issue, in essence, is as to whether Mr. P. was entitled, as a matter of law, to any further reasoning in

relation to the decision to refuse, so as to thereby render the Minister’s decision unlawful on the basis of insufficient reasons. Before

going on to address the specific legal issues which arise in that context, it is appropriate to make a number of observations which

provide some of the backdrop to the issues which require to be determined.

4. Some Observations

4.1 The first area of observation derives from the specific case made by Mr. P. in these proceedings. The case made on behalf of Mr.

P. before this Court concerned a contention that the reasons given by the Minister for refusing naturalisation did not meet the criteria

identified by this Court in a series of cases following on from Mallak. The obligation of a public law decision maker to give reasons is,

of course, well established. It is also clear that there are two separate, although frequently overlapping, bases for the obligation in

question. The first can be found in the obligation of transparency, whereby persons with a legitimate interest in public law decisions

are entitled to know why those decisions were taken. The second stems from the fact that persons who may be affected by public

law decisions are entitled to sufficient information to enable them to consider whether it might be appropriate to exercise a right of

appeal (if one exists) or to seek to challenge the decision through judicial review proceedings

4.2 While the right to reasons is well established, there can, of course, often be a legitimate debate about the precise extent to

which such decisions require to be reasoned and the level of detail as to the reasoning which requires to be provided. The underlying

rationale for the obligation to provide reasons will inevitably inform the assessment of the extent of the detail which requires to be

provided.

4.3 But it is also clear that a person who may potentially be directly and adversely affected by a public law decision is entitled to be

heard in the decision making process and, in that context, will ordinarily be entitled to be informed of any material, evidence or issues

which it might be said could adversely impact on their interests in the decision making process. See, inter alia, the judgments of this

Court in State (Gleeson) v. Minister for Defence [1976] I.R. 280, Kiely v. Minister for Social Welfare [1977] I.R. 267 and State

(Williams) v. Army Pensions Board [1983] I.R. 308.

4.4 The entitlement to know the case against you is itself a fundamental part of the right to be heard, for the right to be heard would

be of little value if the person concerned did not know the issues which might adversely affect their interests in the relevant decision

making process.

4.5 However, the precise nature of the information to which a person involved in a public decision making process may be entitled can

itself be dependent on the nature of the decision concerned. At one end of the spectrum can be found cases where it is sought to

make an adverse decision potentially interfering with the rights of or imposing obligations on an individual. In a similar vein may be

cases where a person has a legal right under law to a particular entitlement, provided that certain facts can be established but where

there may be evidence or materials available to the decision maker to suggest that the necessary facts are not present. In such

cases, it may well be realistic to speak of the right to know the case against oneself.

4.6 On the other hand, there may be cases where a broad discretion is given to the decision maker as to whether a particular benefit

should be conferred in circumstances where no legal right as such to the benefit exists. In such a case, the applicant for the benefit

has the right to be heard, in the sense of the right to make whatever representations are considered appropriate. There may also be

an entitlement, in some circumstances, to be told of any information, evidence or materials which might adversely affect the exercise

by the decision maker of the discretion in question, so as to afford the person concerned an opportunity to comment on those

matters. The precise extent to that entitlement will be dependent on all the circumstances of the case, including the nature of the

decision to be taken. However, there are undoubtedly significant differences between cases where rights may be interfered with or

obligations imposed, on the one hand, and cases where a benefit or privilege is sought, on the other.

4.7 Against the backdrop of that analysis, it may be that, in some circumstances, there will not be any significant material difference

between the right to know and make representations on the case which might be made against a person in the context of a public

law decision, on the one hand, and the right to be given reasons for an adverse decision, on the other.

4.8 However, as noted above, the precise nature of the process to which a person potentially affected may be entitled can be

dependent on the nature of the decision to be taken. But be that as it may, the entitlement of a party to know of the materials,

evidence and issues which might adversely affect their interests in the decision making process is itself a function of the right to be

heard and the entitlement to involve themselves in the process in a way which affords the interested party an appropriate

opportunity to engage with the issues which might adversely affect their interests. That rationale is, at the least, very similar to the

rationale for giving reasons for a decision once made. The extent of the obligation is informed, at least in significant part, by the

obligation to provide a transparent process and to afford a party with legitimate interests a proper opportunity to either effectively

participate in the decision making process (where the right to know the case against oneself is engaged) or to consider an appeal or

judicial review (where the right to reasons for a decision already made is engaged).

4.9 The reason for that analysis is as the background for an observation that while the case made on behalf of Mr. P. in these

proceedings and on this appeal concerns reasons given for a decision already made, the same logic would seem to inevitably apply to

any issue concerning the obligation to provide similar information in advance of the decision so as to enable a party, such as Mr. P.,

to engage in the decision making process. Put simply, it would require particular circumstances for it to be possible to envisage that

there would be a difference between the nature of the information which required to be given pre-decision so as to enable the right

to be heard to be effective and the nature of the reasons which would require to be given post-decision to enable a party to consider

whether they should appeal or review. While, therefore, this case is directly concerned with reasons given for a decision already

made, it would seem clear that much of the analysis would necessarily have equal application to a consideration of the information

which would require to be furnished during the decision making process itself.

4.10 It should, of course, be emphasised that the precise application of the right to be heard and the right to be given reasons can,

as previously noted, be dependent on the nature of the decision concerned. In particular, the precise extent of either entitlement

may be influenced by whether the decision involves rights and obligations, on the one hand, or a benefit or privilege, on the other.

However, the point is that, however extensive or otherwise the entitlement may be in the circumstances of a particular type of case,

there is unlikely to be any great difference between the extent of the right to know of possible reasons for a future adverse decision,

compared with the right to know the reasons for such a decision once made.

4.11 In the context of a decision concerning naturalisation such as is at issue in these proceedings, it is also necessary to take into

account the fact that a person can renew or repeat an application despite a previous refusal. The decision is not of the sort where,

once taken, it is binding in practice for the future and not capable of being re-opened, or only is subject to being re-opened in limited

and defined circumstances. Thus, there may, in reality, be little difference in practice between establishing a right to greater reasons

for an adverse decision once taken as opposed to obtaining information which may be relevant to making representations in respect of

a decision under consideration. If adequate reasons are given in a decision, having regard to all relevant circumstances, then a party

who feels that there is anything that they may be able to add to their application can always make a renewed application and deal

with those issues in whatever way they consider appropriate.

4.12 The second area of observation concerns the question of whether, and if so, to what extent, it could ever be permissible in the

Irish legal system for a court to have regard to evidence, which is material to the determination of a substantive issue in a case, in

circumstances where all of the parties did not have access to all of that evidence. It is certainly clear that there is no general

procedure known to Irish law which would allow a case to be decided on the basis of evidence which all affected parties did not have

the opportunity not only to know, but also to challenge. In that context, some limited examples where, perhaps, an absolutely pure

application of that rule have been held not to apply need to be considered.

4.13 First, there is the area of discovery of documents. It is, of course, the case that any party to civil proceedings in Ireland

(including public law proceedings) is entitled to invite a court to require another party to the same proceedings (and in some limited

circumstances, third parties who are not directly involved) to disclose on oath the existence of any documents which might be

relevant to the issues in the case. In addition, a party will be entitled to inspect and make copies of any documents, subject only to

a valid claim for privilege being maintained. It is in the context of such a claim for privilege being made on behalf of a State authority

that issues can arise which require the balancing of legitimate State interests and the interests which are secured by the proper

administration of justice, in the context of a court having access to all relevant evidence which might impact on the just resolution of

proceedings. It is worth briefly tracing the history of the development of the case law in that regard. Irish law in this context is based

on the common law and the historical position in the United Kingdom was that the production of documents by State authorities could

legitimately be resisted on the basis of a certificate from a relevant minister of government to the effect that State interests were

affected, as held by the House of Lords in Duncan v. Cammell Laird & Co. Ltd [1942] A.C. 624.

4.14 However, the Irish courts ultimately took a different view, first, in Murphy v. Corporation of Dublin [1972] I.R. 215 where Walsh

J., on behalf of this Court, held at p. 234 that it was “impossible for the judicial power in the proper exercise of its functions to permit

any other body or power to decide for it whether or not a document will be disclosed or produced”. When an attempt was

subsequently made to revisit the issue in Ambiorix v. Minister for Environment (No. 1) [1992] 1 I.R. 277, this Court approved the

principle laid down in Murphy to the effect that any conflict between the public interest involved in the production of evidence in

judicial proceedings and the public interest involved in the confidentiality of documents pertaining to the exercise of the executive

power falls to be decided by the courts.

4.15 The position is, therefore, well settled. The ultimate decision in Ireland on whether legitimate State interests outweigh the

requirement to produce documents in the context of court proceedings is one which must be made by a court rather than by the

State authority itself. Furthermore, it is clear from the case law, as per Walsh J. in Murphy at pp. 234-235 which was approved by

Finlay C.J. in Ambiorix at pp. 283-284 and more recently restated by McKechnie J. in Keating v. Radio Telefís Éireann and Ors. [2013]

IESC 22 at para. 36, that, if it is considered necessary, the Court may itself look at the documents concerned to enable the Court to

make an appropriate assessment. In that context, the party seeking to inspect the contested document will obviously not have sight

of it and counsel representing that party will only be able to make submissions of a general nature. It follows that this is one,

admittedly very limited, case where a judge, in ruling on what is essentially a procedural and evidential matter, may have regard to

materials (in the shape of the documents concerned) which are not available to one of the parties. It is also true that judges

sometimes exercise a similar role where a document is disclosed in a redacted form as part of the discovery process but where it is

asserted that the redacted portions contain material which is irrelevant to the case in question and not, therefore, properly the

subject of disclosure. Judges have sometimes looked at the documents concerned in an unredacted form to satisfy themselves that

the asserted irrelevance is correct.

4.16 But all such cases do not involve the substantive determination of the case but rather, are only concerned with the disclosure of

potential evidence. It is, of course, the case that the ultimate resolution of proceedings can sometimes depend on whether certain

evidence is made available but that does not take away from the fact that the Court which ultimately decides the merits of the case

will only have access to the same evidence that is available to all of the parties. In at least many cases, a judge who has to read

confidential information for the purposes of determining a disclosure obligation will not be the judge who will ultimately decides the

merits of the case. It should be emphasised that the question of whether a judge who has seen material which is not ultimately

permitted to be regarded as evidence in the case is to decide the merits of the case will depend on whether it can be said that a

sufficient conflict arises from those circumstances such as to make it inappropriate for the judge concerned to remain the final arbiter

of the merits of the case.

4.17 That there is an exception to the rule which prohibits materials being considered by a judge which are not available to all of the

parties, which can be found in the discovery process where State immunity is asserted, cannot be doubted. However, for the reasons

which I have sought to analyse, it is a very limited exception. It will be necessary to return in due course to an analysis of the

implications of the law in that area for the resolution of this case.

4.18 One other area might be mentioned, being that of intellectual property litigation. Issues relating to confidentiality often arise in

patent proceedings, where relevant documents in the disclosure process can contain commercially sensitive information, the

disclosure of which may give rise to a risk of significant prejudice to the producing party. The issue of disclosure is commonly

addressed by the establishment of what is known as a “confidentiality ring” of persons, usually the opposing party’s lawyers or

experts, who are selected by the court and who may alone view the confidential material which material will be withheld from the

relevant party to the litigation. Such practice is well established as a matter of English law: see, inter alia, the principal authority of

the Court of Appeal in Warner-Lambert Company v. Glaxo Laboratories Ltd [1975] R.P.C. 354.

4.19 In this jurisdiction, protective limitations on disclosure in the context of patent proceedings were first considered in Koger Inc. &

Ors. v. O'Donnell & Ors. [2009] IEHC 385. Kelly J. considered a number of decisions of other jurisdictions and determined that a

restriction on disclosure, by means of the establishment of a “confidentiality ring”, will only be permitted where it can be justified by

exceptional circumstances. In those proceedings, it was concluded that the interests of justice required limited disclosure of the

material in question to the plaintiffs’ legal advisors and to a nominated officer of the plaintiffs, under strict conditions so as to delimit

the use or further disclosure of the information in ways which would prejudice the defendant. More recently, the principle set out in

Koger Inc. v. O’Donnell was followed by the High Court (McDonald J.) in De Lacy v. Coyle [2018] IEHC 428.

4.20 However, it must be emphasised that the sort of evidence with which Courts are concerned in this area is essentially expert

material. Thus, both parties’ experts will have access to all of the relevant materials. The receiving party’s lawyers will not only have

access to the material but will also be able to consult with that party’s experts so as to assist in the cross-examination of their

opponents’ witnesses. The extent to which the individual client or party could make any meaningful contribution to that process would

be quite limited. If an opponent’s expert view is to be contested, then this can only really be done by either, or both, competing

experts’ testimony or by the cross-examination by a skilled lawyer of the expert concerned, almost always with the assistance of that

lawyer’s own expert to give guidance on the appropriate lines of questioning. The client’s input is likely to be minimal, if not non-

existent.

4.21 A very different situation arises where the only way in which evidence or materials concerned could be challenged would

inevitably require direct input from the client him or herself. In such a case, the ability to challenge an opponent’s evidence is

dependent on the client knowing that evidence so that, if considered appropriate, the client can give conflicting evidence or

explanations which might impact on the inferences to be drawn. Likewise, there will be no possibility of effective cross-examination if

the basis for the adverse view is not known in the first place.

4.22 Against the background of that analysis, it seems to me that it can be said that it does not appear that there is any provision in

Irish law which would allow a court, making a substantive decision on the merits, to have regard to information which is not available

to both sides of the case, even if there may be limited circumstances where certain confidential information may only be available to

the lawyers and experts on one side and where there may also be what might be called an exception where the Court is simply

considering whether documents should be disclosed, rather than the substantive merits of the case itself.

4.23 I should emphasise that this analysis is concerned with the availability of evidence or materials to parties in judicial proceedings.

Part of the underlying rationale for the decisions of this court in Murphy, and also in Ambiorix, derived from the fact that the evidence

concerned was potentially relevant to judicial proceedings and that the administration of justice itself was therefore engaged. The

purpose of the analysis which I have just conducted is to identify the fact that, in judicial proceedings, a court cannot have regard,

in coming to its ultimate conclusion on the merits, to materials or evidence which were not available generally to the parties. It does

not necessarily follow that, in all circumstances, a balancing of competing interests would necessarily lead to the same conclusion in

the context of a purely administrative decision making process which did not involve the administration of justice itself. Likewise, it is

not for a court to rule on whether materials need to be disclosed except in proceedings in which the lawfulness of an administrative

decision is challenged. Such questions are at least initially matters for the administrative decision maker, subject only to review by

the courts on the grounds of lawfulness.

4.24 That being said, however, if there should be a judicial review challenge to an administrative decision and if particular documents

can be shown to be relevant to the issues which arise on that challenge, the question of whether the party challenging the

administrative decision concerned can have access to those documents becomes a matter arising in the administration of justice and,

thus, the issue of whether the content of the documents concerned requires to be disclosed becomes a matter solely for the Court.

4.25 Difficult questions arise where it is said that there are overriding State interests which preclude certain documentation being

given to an individual who challenges an administrative decision in judicial review proceedings. The Court is aware that there are a

number of jurisdictions where judges can have access, in certain circumstances, to State security information which is not made

available to a party which might be affected by a public law decision under challenge in the courts. On one view, it might be said that

a judge being required to review for legality an administrative decision, without having access to some of the information which

informed that decision, is placed in a difficult position in being able properly to assess the legality of the challenged decision. But

there is in Irish law what appears to me to be an equally potent principle to the effect that it is wrong for a judge to make a decision

when influenced by evidence which was not available to a party and which, therefore, the party concerned was not able to challenge

in any meaningful or effective way.

4.26 However, short of breaching the State’s legitimate and proportionate security interests, it is difficult to see how a process can

be constructed which might not, in at least some cases, potentially infringe one or other of what might otherwise be considered

matters of principle. Either the Court will have to assess legality without having access to information which formed part of the

administrative decision making process but which is covered by State security privilege or the Court will have to make a decision on

the substantive merits of the case on the basis of evidence or materials which a party was not permitted to access and could not,

therefore, challenge. Neither proposition is particularly attractive but one or other solution must be found if State security privilege is

to be upheld. Irish law clearly favours the solution which does not permit the Court to have regard to materials not available to the

parties.

4.27 Whether, and if so, to what extent, it might be possible to put in place, by legislation, a legal basis for a departure from that

position which would meet a test of proportionality, having regard to the legal rights and obligations at stake, is a matter which does

not arise in this case and on which I would not, therefore, express any opinion at this stage. In that context, I would agree with the

observation of Hogan J. in the Court of Appeal in this case to the effect that the creation of a system such as the special counsel

process adopted in the United Kingdom could not be achieved solely by judicial decision. It is sufficient to record that, in the absence

of any such legal basis, there is no process known to Irish law which would enable a court determining the merits of a case such as

this to have regard to materials which are withheld from a party.

4.28 Having made those observations, I now turn to an analysis of the central issue which arises.

5. The Central Issue

5.1 The real issue which lies at the heart of these proceedings is as to the extent to which the undoubted difficulties which the State

would face in obtaining potentially vital intelligence, either from its own agencies or, perhaps even more importantly in the Irish

context, from agencies of friendly foreign powers, can provide a legitimate legal and constitutional justification for the approach taken

by the Minister in this case.

5.2 It seems clear that much relevant intelligence information will, in the Irish context, come from agencies of friendly foreign states.

It seems almost inevitable that such information will be shared only on the basis that it remains confidential. There can be little doubt

but that an obligation in law to disclose such information to parties who may be mentioned in the relevant intelligence material could

lead to such information not being available to the State at all. The potential adverse security consequences which would follow from

the drying up of international intelligence are all too obvious. That is not to say that a mere assertion of the possibility of such

difficulties being encountered by the State can necessarily, and in each and every case, trump all other considerations. That analysis

does, however, emphasise the weight which needs to be attached to any circumstance which might realistically lead to a significant

diminution in the availability of relevant security information to the Irish authorities stemming from the reluctance of friendly foreign

agencies to supply such information because of the risk of it being disclosed.

5.3 It must, of course, be recognised that, in many cases, the position of the State and its agencies may be impaired if they are

unable, for reasons such as those which lie at the heart of the refusal in this case, to make information available. If the State is, as it

were, the moving party, whether in criminal or civil proceedings, then the onus rests on the State to present before the Court

sufficient evidence to allow the Court to reach whatever conclusions are required in order that the claim advanced by the State can

be made out. In a criminal prosecution, evidence to establish the guilt of an accused beyond reasonable doubt needs to be put

forward. In civil proceedings, evidence sufficient to establish the facts on the balance of probabilities needs to be led. If the State is

not in a position to present evidence in its possession, then that may well lead to the State being unable to establish its case.

Indeed, in certain circumstances the case may never be brought because the State would be unable to bring the proceedings with

any chance of success due to lack of evidence which it is prepared to disclose.

5.4 One illustration of this impairment can be seen in the context of the criminal offence of membership of an illegal organisation.

Section 3(2) of the Offences against the State (Amendment) Act 1972 (“the 1972 Act”) renders admissible in evidence the belief of a

Chief Superintendent of the Gardaí that a person accused of the criminal offence of membership of an illegal organisation is in fact a

member of that organisation. As referred to in oral submissions, in Redmond v. Ireland [2015] 4 I.R. 84, this Court held that s. 3(2) of

the 1972 Act would not be consistent with the Constitution if it permitted the conviction of a person solely on the basis of opinion

evidence, in circumstances where privilege is asserted over all of the material which led to the formation of that opinion. The opinion

evidence in such cases can, of course, like any other evidence, be challenged as a matter of principle. However, a practical problem

will necessarily arise if the entire basis for the opinion is stated by the witness concerned to derive from intelligence which cannot be

disclosed. A constitutional construction of this provision, therefore, requires that the belief evidence of a Chief Superintendent be

supported by some other evidence implicating the accused in the offence charged, which evidence has to be independent of the

witness giving the belief evidence. Therefore, in such criminal proceedings, where opinion evidence is admitted in circumstances

where no justification for the opinion is put forward other than material which is not disclosed on the grounds of confidentiality, an

acquittal will almost certainly follow.

5.5 Thus, it may well be seen that, in many circumstances, the consequence for the State or its agencies in being unable, for reasons

of security or international relations and confidentiality, to place certain evidence before a court or an administrative body in a

manner where that evidence will be disclosed to a relevant party, may simply be that the State will be unable to achieve the legal

ends which it wishes.

5.6 But this case is different. Here, the person who potentially suffers by the unavailability of the evidence is Mr. P., who is unable to

know in any detail the national security reasons which apparently justify both the refusal of naturalisation and the refusal of detailed

reasons. Mr. P. is, therefore, unable in any practical way to contest the issue. The real question is as to the proper approach, as a

matter of principle, in a case such as this.

5.7 I propose to turn shortly to the principle of proportionality. I accept that this principle does not directly apply in the

circumstances of this case, for it is not sought to interfere, as such, with any right which Mr. P. might enjoy. The conferring of a

certificate of naturalisation is a benefit or privilege to which Mr. P. is not entitled as of right. Rather, the extent of his rights is

confined to the entitlement to make representations as to why such a certificate should be granted to him.

5.8 However, it seems to me that, by analogy, the principles which underlie proportionality can have some relevance in the

circumstances of this case. Here, the Court is concerned with a situation where, ordinarily, it might be said that Mr. P. would be

entitled to more detailed reasons for the Minister’s refusal which he seeks to challenge. In that context, it is, perhaps, appropriate to

identify two different ways in which it might be said that detailed reasons cannot be given.

5.9 First, it is clear from the Mallak case law that there may well be situations where it is not, in practice, possible to give any

detailed reasons for the administrative decision concerned may involve the exercise of a very broad discretion by the decision maker

which may not, by nature of the decision itself, be susceptible to detailed reasoning. Where the decision itself is based on a broad

general discretion, then it may be that the reasons which can be given are themselves broad and general.

5.10 However, there may be a second category of case where there may be a different basis on which the failure to give more

detailed reasons may be sought to be justified, being that there are legitimate considerations which may preclude going into greater

detail. In such a case, it might well be possible to determine that, as a matter of practicality, more detailed reasons could be given

but that it would be wrong to require such detail, having regard to legitimate considerations. It seems to me that, in the latter case,

there is at least an analogy with the principle of proportionality for, in such circumstances, the issue is as to the extent to which

those legitimate considerations can justify declining to provide reasons which would otherwise be required. In that way, the overall

consideration is at least not dissimilar to that which underlies the doctrine of proportionality, which is itself concerned with the

justification for impairing rights in order to protect other legitimate considerations. I should emphasise that, like in all other cases,

such an analogy should not be taken too far but I find the comparison to be at least of some assistance in the task which this Court

has to confront in resolving this case.

5.11 One of the core elements of the principle of proportionality is identified in the Irish jurisprudence in Heaney v. Ireland [1994] 3

I.R. 593, where, at p. 607, Costello J. first invoked the formulation of the doctrine of proportionality which was set out by the

Canadian Supreme Court in R v. Chaulk (1990) 3 S.C.R. 1303:-

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally

protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means

chosen must pass a proportionality test. They must:—

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective...”

5.12 One key element of the test is that the measure adopted should only impair rights to the minimum extent necessary to achieve

the legitimate public end. It seems to me that there is a legitimate basis for applying a similar consideration to a situation where, as

here, more detailed reasons could, as a matter of practicality, be given but where it is said that there are legitimate interests involved

which justify not going further. In such circumstances, it seems to me to follow that a failure to give more detailed reasons can only

be regarded as justified if that failure impairs the entitlement to reasons to the minimum extent necessary to protect the legitimate

countervailing interests engaged.

5.13 In those circumstances, it seems to me that it is incumbent on the Minister to put in place measures which only impair the

entitlement of Mr. P. to be informed of the reasons for any adverse decision to the minimum extent necessary to protect legitimate

State interests.

5.14 It is true that an assessment had been made by the High Court in the earlier proceedings previously referred to, applying the

balancing test identified in Murphy and Ambiorix, to the effect that the relevant documentation did not have to be disclosed.

However, it does not follow that it might not be possible to provide a synopsis of that material, or some of it, which gave some

indication of the issues of concern, but in a manner which would not impair any of the security interests at play. Whether that is so in

the circumstances of this case is not, of course, a matter which this Court can determine, although it is asserted by the Minister, and

averred to by in the affidavit evidence filed on behalf of the Minister, that this would not be possible in the circumstances of this

case. But it remains a possibility.

5.15 Furthermore, there is no reason, in principle, why an independent person, with appropriate security clearance, could not be given

the task of assessing the documentation for the purposes of advising on whether, in that person’s opinion, there was any further

information which could properly be given.

5.16 In that context, it is important to emphasise that there is at least the possibility of there being a difference between the

justification for the disclosure of a document, even in redacted form, and the disclosure of at least some aspects of what counsel for

Mr. P. described as the gist of the document. It may, of course, be the case that it would be impossible to disclose even part of the

gist of the reasons set out in a document without impairing the very same legitimate State interests which would prevent the

disclosure of the document in question. But that need not always be so.

5.17 It must be recalled that the discovery procedure is not one whereby information, as such, is required to be disclosed, but rather

one where existing documentation must be made available. Thus, if inspection is permitted (possibly after a successfully contested

application challenging privilege claimed), it is the document itself, in whatever form it may be and with or without appropriate

redaction, which must be disclosed. I agree with the views expressed in the courts below to the effect that the decision made by

McDermott J. in the previous proceedings already referred to is res judicata, so that it follows that the disclosure of the entirety of

Document C and the redacted parts of Document B must be held to be impermissible because of State privilege. But the decision of

McDermott J. related to those documents in the form in which they were held by the Minister. While it is also true that the basis for

the views expressed by McDermott J. was that the information contained in the documents could not properly be disclosed, it does

not necessarily follow that it would be impossible to put some of the information contained in those documents into a different form,

such that its disclosure would not impair State interests or, at least, would not do so to a sufficient extent so as to outweigh what

might otherwise be the entitlement of Mr. P. to be given more detailed reasons for the Minister’s refusal.

5.18 On that basis, I have come to the view that it has not been established that the Minister has impaired the entitlement which Mr.

P. would otherwise enjoy to more detailed reasons only to the minimum extent necessary to secure legitimate State interests. It is at

least possible to put in place an enhanced process whereby, for example, an independent assessment could be made as to whether

any version of the information, or part of it, could be provided in a way which would not affect State interests to the extent that

disclosure should not be required.

5.19 It is not, of course, for the Court to be prescriptive as to the precise form of any process which should be put in place. It is,

however, for the Court to assess whether it would be possible to put in place measures which would interfere to a lesser extent with

the entitlement of a person such as Mr. P. to more detailed reasons. The analysis just conducted is by way of example to illustrate

the reasons why I would suggest that it is possible to put such an enhanced process in place. On that basis, I would conclude that it

has not been demonstrated that the process which was engaged in in the circumstances of this case can be said to have impaired

Mr. P.’s entitlement to reasons only to the minimum extent necessary so as to protect legitimate State interests. I would add that I

should not, in this judgment, be taken as expressing a view, one way or the other, as to the type of measure which would be

necessitated to provide a legally sound process.

5.20 I should emphasise that it is not, in my view, necessary that the final decision making role is taken away from the Minister. Both

as an exercise of the executive power of the State and under statute, it is the Minister who must make the final decision on

naturalisation and, having regard to the State interests at stake, the Minister must make the final decision as to what information

must be disclosed, subject only to the overriding power of the Court, in the course of the discovery process in judicial review

proceedings, to exercise a judgment on whether State immunity privilege has been correctly claimed.

5.21 Apart from determining such privilege issues, it is clear that a court would not play any role in any enhanced process other than,

if called on, to consider the lawfulness of the process and the decision taken at the end of it. It might be possible to put in place a

legislative scheme which gave to a judge a specific role in the decision making process itself. However, no such legislative scheme

currently exists. It would be a breach of the separation of powers for a court to devise such a scheme and impose it on the Minister.

5.22 It therefore follows that the courts cannot currently exercise any role in second guessing the underlying decision, save by means

of ordinary judicial review proceedings. In the context of such proceedings it may, of course, be open to a court to review

documentation whose disclosure is sought, in the same way as was adopted by McDermott J. in the course of the earlier proceedings

to which reference has been made. But for the reasons analysed earlier in this judgment, it is clear that the only information a court

can consider in making a substantive judicial review decision on the lawfulness of a ministerial refusal, such as is at issue in these

proceedings, must be materials which are available to all of the parties.

5.23 However, I would hold that it has not been demonstrated that the process followed in this case minimised Mr. P.’s entitlement to

reasons to the minimum extent necessary and I would, therefore, quash the decision of the Minister on such grounds.

5.24 Before concluding this judgment, it is necessary to say something about the argument raised which suggested that this Court

should have regard to the Charter of Fundamental Rights of the European Union in its assessment of the case. The underlying dispute

between the parties on this question was as to whether the Charter had any application. Having regard to the fact that I propose

that the Minister’s decision be quashed on purely national law grounds, it follows that it is not, strictly speaking, necessary to address

this Union law issue. However, I propose to make some observations on that topic.

6. The Charter

6.1 The starting point has to be to note that the decision under challenge in this case is one to refuse naturalisation. It is clear that,

ordinarily, the conditions for the acquisition and loss of nationality are, both as a matter of international law and as a matter of Union

law, a matter for each Member State. Counsel for Mr. P. accepts that proposition at a general level. However, it is argued that Article

20 of the Treaty on the Functioning of the European Union confers citizenship of the European Union on the citizens of each of the

Member States, with Article 20(1) providing that:-

“Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen

of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”

On that basis, it is argued that any issue concerning citizenship of a Member State engages Union law and thus allows reliance on the

Charter.

6.2 Similar issues were considered by the CJEU in Rottmann v. Freistaat Bayern (Case C-135/08), EU:C:2010:104, [2010] E.C.R. I-

1449. In that case, Mr. Rottmann, who had formerly been an Austrian national and had become a naturalised German national, had

had his German citizenship revoked. The CJEU undoubtedly considered that, in the circumstances of the case in question, Union law

was engaged.

6.3 However, it is important to analyse the reasoning of the CJEU which led to that conclusion. First, the Court identified certain

general propositions at para. 39 of its judgment:-

“39. It is to be borne in mind here that, according to established case-law, it is for each Member State, having due

regard to Community law, to lay down the conditions for the acquisition and loss of nationality (Micheletti and

Others, paragraph 10; Case C 179/98 Mesbah [1999] ECR I 7955, paragraph 29; and Case C 200/02 Zhu and Chen

[2004] ECR I 9925, paragraph 37).”

6.4 In so doing, the Court distinguished cases such as The Queen v. Secretary of State for the Home Department ex p. Manjit Kaur

(Case C 192/99), EU:C:2001:106, [2001] E.C.R. I 1237, stating at para. 49 of its judgment:-

“49. Unlike the applicant in the case giving rise to the judgment in Kaur who, not meeting the definition of a

national of the United Kingdom of Great Britain and Northern Ireland, could not be deprived of the rights deriving

from the status of citizen of the Union, Dr Rottmann has unquestionably held Austrian and then German nationality

and has, in consequence, enjoyed that status and the rights attaching thereto.”

6.5 Importantly, the Court went on to comment on the principle of international law that Member States have the power to lay down

the conditions for the acquisition and loss of nationality. In that context, the Court drew attention in its judgment to Declaration No.

2 on Nationality of a Member State, which is annexed to the Final Act of the Treaty on the European Union and which involves a

declaration that “...wherever in this Treaty establishing the European Community reference is made to nationals of the Member

States, the question whether an individual possesses the nationality of a Member State should be settled solely by reference to the

national law of the Member State concerned”.

6.6 However, the Court in Rottmann indicated that, in the circumstances of the case in question, what was engaged was not the

sole entitlement of Member States to determine the conditions for the acquisition and loss of nationality but rather, what was

described as a principle, deriving from the respect of citizens of the Union, that the exercise of any power which affects rights

conferred and protected by the legal order of the Union engages Union law in an assessment of the legality of any measures adopted.

6.7 The position was, of course, that Mr. Rottmann was, at all material times, a citizen of the Union and the measure proposed by

Germany involved, by depriving him of German citizenship, the removal of his Union citizenship, because he had already lost his

Austrian citizenship by becoming naturalised in Germany. It follows that Mr. Rottmann was a citizen of the European Union and the

CJEU considered that he therefore had rights in that capacity, such that a measure which would deprive him of those rights

necessarily involved the engagement of Union law.

6.8 The situation in this case is completely different. Mr. P. undoubtedly has rights as a declared refugee and those rights enjoy

protection under Union law which would, should the removal of his refugee status be considered, require compliance with the Charter.

However, there is no such proposal. The refusal of naturalisation does not affect in any way the rights which Mr. P. enjoys in Ireland

as a refugee. The refusal of naturalisation does not take away any rights conferred by Union law, for its only effect is that Mr. P. will

not become a Union citizen. But Union law confers no entitlement to citizenship on any particular category of person, other than to

recognise that everyone who is, in accordance with the national law of any Member State, a citizen of that State is also a Union

citizen. It is thus strongly arguable that the sole competence in the grant of citizenship remains with the Member State. However, as

determined by the CJEU in Rottmann, the removal of citizenship of a Member State, given that it may affect the rights which the

Union Treaties confer on Union citizens, does engage the Charter. However, in my view, there is nothing in Rottmann which suggests

that Union law has any role in the decision to grant citizenship as opposed to its removal

6.9 Given that it is unnecessary to reach any final conclusion on these matters, I confine myself to offering the above observations

and also note the view expressed by Lord Mance, speaking for a majority of the United Kingdom Supreme Court in Pham v. Secretary

of State for the Home Department [2015] UKSC 19, [2015] 1 W.L.R. 1591 (at para. 85), which doubted whether even the Union

competence identified by the CJEU in Rottmann was consistent with the Treaties. If such an issue became necessary for the

determination of a case it might, of course, be required that there be a reference to the CJEU. However, for the reasons already

identified, it does not appear to me that it is necessary to reach any final determination on the boundaries of Union law in this area.

7. Conclusions

7.1 For the reasons set out in this judgment, I have come to the view that it has not been demonstrated that the process followed

by the Minister in determining the extent to which it was permissible, consistent with legitimate State security interest grounds, to

disclose information to Mr. P. interfered with the entitlement of Mr. P. to know the reasons for the Minister’s decision to the minimum

extent necessary to protect those legitimate State interests.

7.2 On that basis, I would consider that the decision of the Minister must be quashed. Having come to that view, I also set out the

reasons why I do not, therefore, consider it necessary to reach a final determination on the issue of EU law raised in argument. I do,

however, offer some observations on that question.

7.3 In all the circumstances, I propose that the decision of the Minister to refuse naturalisation to Mr. P. should be quashed and that

the matter should be remitted back to the Minister to make a further decision, following on from an enhanced process which conforms

with the principles identified in this judgment.

7.4 I have had the opportunity of reading in advance the judgment of O’Donnell J. on this appeal. I note that O’Donnell J. has come to

the same conclusion as I have but by a slightly different legal route. I acknowledge that the route adopted by O’Donnell J. also

provides a legally sustainable basis for coming to the conclusion which we share. In that context I should state that I agree with the

judgment of O’Donnell J.