In my previous two posts, I considered the drafting history and possible unconstitutionality of section 11 of the Defence (Amendment) Act 2024 (the 2024 Act; update: available here) (pdfs here and here). That section adds a new subsection (1A) to section 103 of the Defence Act, 1954 (the 1954 Act; consolidated here) placing comprehensive restrictions on the political speech of members of the Defence Forces. A similar blanket ban is imposed upon members of the civil service. In this post, I want to examine whether there is a sufficient legal basis for the ban. In my next post, I will consider whether that ban is constitutional.

The Civil Service Code of Standards and Behaviour (2004; revised 2008 (pdf); Circular 26/04 (09 September 2004) (pdf)) provides:

5. Civil Servants and Politics
5.1 Restrictions have traditionally been imposed on civil servants engaging in political activity to ensure public confidence in the political impartiality of the Civil Service. This section restates the existing restrictions.

5.2 … (d) All civil servants above clerical level are totally debarred from engaging in any form of political activity.

5.3 Civil servants in category (d) may not engage in public debate (e.g. letter writing to newspapers, contributions to television or radio programmes etc.) on politics, except if required to do so as part of their official duties. This is not intended to change existing practice. …

Indeed, the circular takes a very broad approach to the definition of “politics” (p10, n2):

Previously, Department of Finance circulars on politics have used terms such as “political matters”, “matters of current political interest”, “political action or position”, “political issues” and “political activity”. For the purposes of this document, the term “politics” is used to cover all of these terms.

And Civil Servants and Political Activity (Circular 09/2009 (30 April 2009) (pdf)) similarly provides:

Political Activity
12. The nature of a civil servant’s role is such that a civil servant must maintain a reserve in political matters, in order to ensure confidence in the political impartiality of the Civil Service. The restrictions placed on civil servants in relation to politics and political activity are designed to ensure that a civil servant does not do anything that could give rise to a perception that his or her official actions are in any way influenced or capable of being influenced by party political motives.

13. Civil servants … are prohibited from engaging in politics i.e. they may not contribute to public debate and may not support or oppose a candidate or party either in writing, by public debate or by contribution to the media (e.g. letter writing to newspapers, contribution to television or radio programmes, discussions on the internet, etc.), except if required to do so as part of their official duties.

14. Civil servants, other than those in the exempted categories in paragraph 13 must not speak in public on matters of local or national political controversy or express views on such matters in the media (including electronic media and the press) or in books, academic papers, articles or leaflets. …

In 2013 and 2016, the Public Service Executive Union (PSEU) passed motions mandating its Executive Committee to seek a review of Circular 26/2004. In 2017, the union merged with two others to form Fórsa on 1 January 2018. Later that year, Fórsa passed a similar motion (see Martin Frawley “Civil servants call for right to express political opinions” (Sunday Times, 22 April 2018)). Any subsequent actions by the unions must have drawn a blank, because there have been no developments on this front.

I understand that the Irish Human Rights and Equality Commission considered that this blanket and largely undifferentiated approach may be problematic from a human rights perspective. And, in response to a petition lodged with the Joint Oireachtas Committee on Public Petitions (Petition No P00002/17 Civil Rights for Civil Servants; considered on 3 May 2017), the Committee agreed to correspond with the Department of Public Expenditure and Reform to ascertain the following (see Annual Report 2017, pp29-30):

1. Its views on amending the Civil Service Code of Standards and Behaviour, to provide an explanation as to the political activity that is prohibited under the code, and the disciplinary action that is applicable when civil servants take part in Political Activity.
2. Whether the Department would consider the drafting of legislation to deal with (1) above.
…

Although the petition remained open, nothing seems to have come of this, since there have been no relevant amendments to the Civil Service Code of Standards and Behaviour and no legislation on the issue.

In my previous post, I considered the decision of Sanfey J in Bright v Minister for Defence [2024] IEHC 289 (14 May 2024). A written Order of the Defence Forces provided that members of the Defence Forces should not attend such unofficial parades and protests. Sanfey J held that section 103(1) of the 1954 Act did not provide a statutory basis for the making of the Order, which was therefore ultra vires ([188], [211], [219], [235]). He also held the Order was a disproportionate restriction on the right to freedom of assembly in Article 40.6.1(iii) of the Constitution ([219], [235]); in particular, it did not warrant a “wholesale, blanket curtailment” of constitutional rights ([216]). There is no legislative provision – similar to subsection 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act – placing comprehensive restrictions on the political speech of members of the civil service. In the absence of such legislation, Circulars 26/04 and 09/2009 continue to govern the issue. The first lesson of Bright is to ask whether there is a legal basis for these two circulars.

Section 17 of the Civil Service Regulation Act, 1956 (the 1956 Act) provides that the Minister is responsible for “the regulation and control of the Civil Service” (section 17(1)(a)), and may “make such arrangements as he thinks fit” for that purpose (section 17(2)). In de Burca v An tAire Iompair [2010] IEHC 418 (29 October 2010) Laffoy J assumed that this section provided the statutory basis for various circulars at issue in the case. A statutory basis might also be spelled out of section 15 of the 1956 Act, as amended by section 10 of the Civil Service Regulation (Amendment) Act 2005 (the 2005 Act), relating to discipline. However, a reference to “the Civil Service Disciplinary Code” was inserted into section 15(7) of the 1956 Act by section 10 of the 2005 Act, but there is no equivalent statutory reference either to the Civil Service Code of Standards and Behaviour or to Civil Servants and Political Activity. And if it was thought necessary to refer specifically to the Civil Service Disciplinary Code in section 15 to provide it with an explicit statutory basis (notwithstanding section 17 and de Burca), then it may also be necessary to refer specifically to the Civil Service Code of Standards and Behaviour and Civil Servants and Political Activity, and the failure to do so may call their validity into question.

If there is no legislative basis for the circulars, then the question arises as to whether a Minister has a sui generis power to make enforceable circulars. On the one hand, such circulars are written statements issued by a Minister to provide information and guidelines on laws and procedures. It has been held that such circulars do “not have the force of law” (Browne v An Bord Pleanála [1991] 2 IR 209, 220 (Barron J)), and certainly do not have statutory “force” or “effect” (McEneaney v Cavan and Monaghan Education and Training Board [2016] IECA 53 (02 March 2016) [31]-[36] (Ryan P; Peart and Hogan JJ concurring)). On this view, although “elementary fairness and good administration” may require circulars to be enforceable against the relevant Minister or public body (O’Donoghue v South Kerry Development Partnership Ltd [2018] IECA 10 [41] (Hogan J; Finlay Geoghegan and Peart JJ concurring)), the legal basis upon which a relevant Minister or public body could enforce a circular against addressees would be, to say the least, unclear. There is some thin case law that says that such circulars can be offers, accepted by those to whom they are addressed, and thus enforceable as contracts, at least by the addressees (McKerring v Minister for Agriculture [1989] ILRM 82 (O’Hanlon J)). But this is a largely unreal conclusion (Latchford & Sons Ltd v Minister for Industry and Commerce [1950] IR 33 (SCt)), and it cannot be the solution for the wholesale validity of the Ministerial Circular system. Many circulars will ground legitimate expectations on the part of the addressees (applying the principles in Glencar Exploration plc v Mayo County Council [2002] 1 IR 112, [2001] IESC 64 (19 July 2001)). Such an argument succeeded in de Burca (above) (see also Holland v Athlone IT [2011] IEHC 414 (26 July 2011); McEneaney v CMETB (above) [33]; Minister for Education and Skills v Boyle [2017] IECA 39 (24 February 2017) [63] (Hogan J; Finlay Geoghegan and Peart JJ concurring) explaining McEneaney v Minister for Education [1941] IR 430 (SCt); Boards of Management of Scoil an Chroí Ro Naofa Íosa & Others v Donnelly [2020] IEHC 550 (02 November 2020) [28] (Hyland J)). But the relevant Minister could not make the same argument.

On the other hand, in McCann v Minister for Education [1997] 1 ILRM 1, Costello P (without reference to Browne) upheld the validity of the national school education system. And in CA v Minister for Justice and Equality [2014] IEHC 532 (14 November 2014) (noted here (pdf)) Mac Eochaidh J (again, without reference to Browne) upheld the validity of the direct provision system. Both systems operated on a non-statutory basis on foot of rules issued by the relevant Minister; and, as Mac Eochaidh J explained in CA, this was a lawful exercise by the Government of the executive powers conferred by Article 28.2 of the Constitution ([14.31], [14.40]) (it should be noted that this conclusion was not discussed in McEneaney v CMETB (above)). And, in Bowes v Criminal Injuries Compensation Tribunal [2022] IEHC 703 (20 December 2022) [34] Holland J held that “the Government may issue non-statutory executive schemes in the absence of legislation”, such as those relating to the Criminal Injuries Compensation Tribunal (see Conor Casey “Under-explored Corners: Inherent Executive Power in the Irish Constitutional Order” (2017) 40(1) Dublin University Law Journal (ns) 1, 13-16 (SSRN)).

Even so, there are limits to such an exercise of executive power: “in certain circumstances the constitutional grant of executive power may enable the Government to act without statutory authority in domestic affairs. It seems clear however, that it could not without statutory warrant, take action imposing obligations or burdens on any citizen” (Gama Endustri Tesisleri Imalat Montag AS v Minister for Enterprise Trade & Employment [2007] 3 IR 472, [2005] IEHC 210 (14 June 2005) (Finlay Geoghegan J); Prendergast v Higher Education Authority [2010] 1 IR 490, [2009] 1 ILRM 47, [2008] IEHC 257 (30 July 2008) [58] (Charleton J); Casey, ibid, 22-24, 25, 32(ii)). If this is so, then it calls the validity of Circulars 26/04 and 09/2009 into serious question.

Whatever the legal basis for a circular, it can, in principle, be subject to judicial review by addressees against the relevant Minister or public body (Conroy v Board of Management of Gorey Community School [2015] IEHC 103 (23 January 2015) (Baker J); Bowes (above) [34], [45] (Holland J)). Hence, in judicial review proceedings, provisions in circulars have been struck down as unconstitutional (eg, Mulloy v Minister for Education [1975] IR 88 (SCt); Greene v Minister for Agriculture [1990] 2 IR 17 (Murphy J), approved in Meadows v Minister for Justice [2010] 2 IR 701, 817, [2010] IESC 3 (21 January 2010) [42] (Fennelly J); CA (above) [8.10]-[8.12] (Mac Eochaidh J)) or contrary to EU law (eg, Copymoore Ltd v Commissioner of Public Works in Ireland [2013] IEHC 230 (29 May 2013) (Hogan J); Ryanair DAC v An Taoiseach [2021] 3 IR 355, 392, [2020] IEHC 461 (02 October 2020) [110] (Simons J)). So, the question arises whether Circulars 26/04 and 09/2009 are constitutional, and that will be discussed in my next post.