Two recent Supreme Court cases – Kerins v McGuinness (1) and O’Brien v Clerk of Dáil Éireann (2) – add greatly to our understanding of parliamentary privilege under the Irish Constitution and its scope. The cases, which were heard together on appeal and due to come down on the same day before O’Brien was briefly delayed, illustrate both the great strength of Oireachtas privilege and its limits. In the O’Brien case, the Court affirmed the orthodox thinking on privilege, but in Kerins, it perhaps altered our understanding of the protections enjoyed by Oireachtas committees and the Houses of the Oireachtas more generally, and we will have to wait to see how this plays out.
The Kerins case
Angela Kerins, then CEO of Rehab, a private organisation in receipt of public funds, was invited to appear before the Public Accounts Committee of Dáil Éireann (PAC) in February 2014. She had been invited to discuss matters related to certain public funding received by Rehab. She had no legal obligation to attend. Over the course of a seven-hour hearing, she was subjected to wide-ranging questions that the High Court deemed damaging to her personal and professional reputation. She was told that answers were unreasonable; that her conduct was 'shocking'; that she should 'get a grip on herself'; and that she was living on 'a different planet' (3). Later, when PAC applied to the Committee on Privilege and Procedure (CPP) to seek compellability powers in respect of its investigation into Rehab, the CPP refused on the basis that PAC has no jurisdiction to investigate Rehab and was acting ultra vires.
Kerins sued the members of the Committee claiming they had acted unlawfully and claiming, inter alia, damages. She failed before a divisional High Court (4), and was granted leave to appeal directly to the Supreme Court.
The O'Brien case
Denis O’Brien was the subject of comments made by Catherine Murphy TD in a debate in Dáil Éireann that revealed certain information about his banking and financial affairs. At the time, he was seeking an injunction restraining RTÉ from broadcasting a programme containing similar information, and had received a preliminary injunction to this effect (5). Mr O’Brien claimed that Deputy Murphy’s comments – alongside later comments by Pearse Doherty TD – violated his right to privacy. The CPP investigated this, and concluded that there had been no abuse of privilege, and that the TDs had acted in good faith.
Mr O’Brien sued the CPP, claiming that it had dealt with the matter in an inadequate manner that did not sufficiently protect his right to privacy. He failed before the High Court, and was granted leave to appeal directly to the Supreme Court.
These appeals were heard together as they each presented questions about the meaning and scope of Oireachtas privilege. Article 15.12 and 13 of the Constitution of Ireland, 1937 state:
'12. All official reports and publications of the Oireachtas or of either Houses thereof and utterances made in either House wherever published shall be privileged.
13. The members of each House of the Oireachtas… shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.'
This exceptionally strong protection for speech in the Oireachtas is designed to ensure a broad freedom of debate, and promote exchange of views and information on matters of national importance. It is a particularly strong instantiation of the broader principle – contained in Article 15.10 – that the Oireachtas should have freedom to make and enforce its own rules and the power to ensure freedom of debate.
On their face, it would seem that in both the Kerins and O’Brien cases, the statements in question were protected by privilege under Article 15.13, and should not be the subject of judicial scrutiny. Both cases invited consideration of the question of whether there were any exception to this strong protection where rights were threatened by the utterances: good name, in Angela Kerins’ case, and privacy in Denis O’Brien’s. Each also raised an interesting point about committees: did the status or function of PAC or the CPP offer some scope for judicial intervention in these cases despite the strong constitutional division of the courts and the Oireachtas?
The Kerins judgment
In Kerins, the Supreme Court held that, in principle, there was nothing that would render speech in committees any less protected than comments in the House. This was because committees performed key parts of the legislative function in respect of policy making and oversight: 'where a committee is entrusted with carrying out a legitimate part of the constitutional function of a House or Houses of the Oireachtas, then that committee is ‘the House’ for the purposes of [Article 15]' (7).
However, since the privilege flows from the status of the committee as a delegate of the Houses, the Court concluded, the privilege is thus limited: if the committee exceeds the limits of its delegation from the House — as PAC clearly had in this instance, due to its ultra vires investigation — then it can in principle be subject to review.
Moreover, in this case, PAC had invited Ms Kerins on the premise of investigating certain specific matters of which she was given notice in the invitation. In significantly exceeding the scope of those specified topics, PAC stepped closer towards the point where the judiciary might intervene. Finally, the Supreme Court noted that the CPP had not sanctioned PAC in any significant way for its ultra vires actions, which was another relevant factor.
The Court stressed that that judicial intervention in committees would not be done lightly; it would only take place if there were 'substantial and significant' deviation from proper conduct. It would not follow from faults which were 'technical, insufficiently serious or closely aligned to those areas - such as utterances within the Houses - which are given express constitutional protection'. The Court will look to 'all the circumstances of the case while affording a very significant margin of appreciation to the Houses as to manner in which they conduct their business' to establish whether there was such a deviation, while respecting the separation of powers (8).
In the instant case, the Court said it needed to hear further submissions – particularly about the conduct of the chair, which might reveal if the breach resulted from the actions of the Committee as a whole rather or just certain members – before making a final decision. It put the case back for a further hearing in April.
The O'Brien judgment
While Kerins showed when judicial intervention might be possible, O’Brien draws a bright line as to where it is not possible. The Court held that it could not review the procedures and conduct of the CPP in this case, as to do so would be to allow an 'indirect or collateral challenge' to the privileged statements of the TDs in question. Reviewing the CPP's process, if successful, would at least demand a reconsideration of the statements by the CPP, and thus the Court would have had an indirect role in adjudicating the statements. This would be impermissible as 'a breach of Article 15.13 and would amount to an impermissible departure from the separation of powers' (9).
The result of this, the Court conceded, was that on occasion rights might be violated by abuse of privilege, the CPP might deal with it inadequately, and the courts would be powerless to grant relief. This does not mean that rights are disregarded by the courts, but rather that the separation of powers requires that the courts trust the legislature's ability to defend rights in these circumstances. The Court stressed that the Oireachtas had a 'constitutional obligation to protect the rights of citizens in respect of that which transpires within the Houses themselves' and that this should be taken seriously (10). But in the end, this is the bailiwick of the Oireachtas, and so Mr O’Brien’s case was dismissed.
The Court did note the possibility of a judicial power in an exceptional and extreme case: in the case of an 'egregious breach' (11) of Oireachtas’ constitutional obligation to defend rights – which might be a very severe instance or prolonged and repeated failures – the Court might have some ability to intervene. This not being anything close to such a case, the existence of this jurisdiction was left to be considered if such an extreme case arises.
The O'Brien judgment is in many ways unsurprising; had the results been otherwise, it would have upturned our understanding of the separation of powers, and there would be few areas of the legislative power into which the courts would not treat. The Kerins case was somewhat more surprising, and has possible long term consequences that may take time to know fully.
First, the Kerins judgment may have a chilling effect on the work of parliamentary committees (12). The Court went to some lengths to stress the broad discretion of committees, and the fact that it was seeking only to balance rights against this discretion in very serious cases. But striking a fine balance of this sort is more complicated than it seems at first blush. It will require case-by-case determination by the Court before there is any real certainty, and this will take time.
But if committees are given conservative legal advice about the effect of Kerins on their ability to question witnesses - advice focused on avoiding litigation by reading the committees' brief and invitations narrowly - these cases may never come to court. Committees may just do less, and the result will be an absence of probing questions and detailed committee investigations. The Kerins case could have a similar effect on committees to the Abbeylara case (13) on Oireachtas inquiries: limiting them greatly for fear of crossing constitutional lines.
Future judicial intervention in the Oireachtas
Secondly, the Kerins case made a very significant finding: that past cases (in particular, the somewhat murky decision in Callely v Moylan (14)) did not establish an almost complete immunity from review for the internal workings of the Houses of the Oireachtas. The State maintained that - absent the use of coercive power seen in Re: Haughey (15) and Abbeylara - Article 15 created a very broad principle against judicial oversight in the legislative process. The Court did not accept this finding of almost absolute immunity, and illustrated this vividly by willing to convene in this case,
In Callely, the Court was sharply divided on the appropriateness of judicial intervention in disciplinary proceedings, and in the internal workings of the Houses in general. The decision, in the end, was extremely narrow and technical, with a majority only forming on a fairly obscure point to decide the case (16). But it might have been thought that the joint opinion of Clarke and O'Donnell JJ - which favoured a broader principle of judicial non-intervention in internal Oireachtas matters - might have won out over time due to, inter alia, changes in the composition of the Court. But Kerins does not adopt this position, favouring an approach that seeks to offer the legislature a wide margin of discretion, but does not rule out intervention.
The real significance of this may be seen in future cases about other areas of the legislative process. For example, the Court in Kerins mentioned, obiter, that it was arguable that there was a constitutional obligation on the Oireachtas to 'adopt standing orders and other measures designed to provide protections for individuals against inappropriate infringement of their rights' and remedies for such violations. While noting a wide margin of appreciation in striking a balance, the Court did not rule out judicial review of such measures: 'it should be noted that the greater the protection provided by the Oireachtas, the more it may be inappropriate for the Court to intervene' (17).
The intent behind this statement might be to mimic the exceptional circumstances noted in O'Brien, and to incentivise the Oireachtas to protect rights in its standing orders. But what is striking is the apparent willingness in principle to review standing orders on disciplinary matters, a core part of the legislative competence. Future cases may show if Kerins heralds a more generally interventionist approach from the courts in the legislative process. If so, the case will go down a significant turning point in the relationship between the courts and the legislature.
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