Mr Justice Peter Charleton has argued that Patrick J Kelly should receive a declaration over objective bias in the Cabinet process that dismissed him, but that the dismissal decision should not be quashed. The judgment is Charleton J’s contribution to a supplemental issue in Kelly’s Supreme Court appeal, dated 15 September 2021; it sets out his view of the remedy, rather than the court’s overall order.
The Supreme Court majority had found that Minister Coughlan’s presence at Cabinet, given her previously expressed views about Kelly, created objective bias. Charleton J said the question remaining was whether the court should nevertheless refuse to quash the Cabinet decision, and what would happen if the matter were returned to Cabinet. He said the majority judgments accepted that the process leading to the recommendation had been fair and was not undermined by Coughlan’s statements.
Charleton J considered that quashing the dismissal would be unjust. He said Kelly’s submissions to Cabinet had challenged the proportionality of the proposed penalty, rather than the investigation report’s account. The report, he said, described the wrongdoing for which Kelly was ultimately dismissed. He also said Kelly had apparently reached age 65 during the judicial review proceedings, but that there was no evidence he had resigned or retired. In his view, quashing could produce several years of salary from public funds for work not done.
He stressed that certiorari, the remedy that would quash the decision, is discretionary. A court can identify a legal defect yet refuse to quash where doing so would be unfair or serve no useful purpose, he said. He also said any remittal for Cabinet to reconsider the matter would itself be discretionary.
Charleton J set out a different possible remedy if the majority’s bias finding required a response: Cabinet could reconsider its original decision, with Kelly entitled to make further submissions. He said a renewed dismissal could be valid, while a decision to retain Kelly might make retirement relevant. He noted that the majority judgment of Dunne J upheld the investigation report and said any damages claim would proceed with its findings intact.
The judgment also said the court had not been asked to decide whether constitutional executive powers constrain Cabinet members’ participation because of their prior political actions or expressed views. Charleton J said that issue should be left to a case where it was properly argued. The source excerpt gives his reasoning on the supplemental issue but does not state the Supreme Court’s final operative order.