by Robbie Slattery , Joe O'Malley April-10-2017 in Litigation & Dispute Resolution, Commercial & Business
The Courts have delivered judgment in two important cases which involve the concept of parliamentary privilege. At its most basic, that principle means that in general the Courts do not have a role in – and are not permitted to –scrutinise comments made in the Houses of the Oireachtas. The cases in question were brought by Angela Kerins and Denis O’Brien and each is summarised below.
Legal Framework
Article 15.13 of the Constitution provides that members 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.” Section 92 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the “2013 Act”) mirrors that position, providing that “a member of a House shall not, in respect of any utterance in or before a committee, be amenable to any court or any authority other than the House”. The 2013 Actwas enacted in the wake of the judgment of the ‘Abbeylara’ decision: Maguire v. Ardagh [2002] 1 I.R. 385 and the constitutional referendum in October 2011 concerning Oireachtas inquiries.
Background – Angela Kerins’ Case
Angela Kerins was CEO of the Rehab Group, a charity established in 1953, a position which she held until her resignation in April 2014. In early 2014, she appeared before the Public Accounts Committee of Dáil Éireann (the “PAC”), ostensibly to discuss State funding of Rehab. However, in the event, she was questioned on a number of extraneous topics over a 7 hour period. The High Court has delivered an important judgment arising from her claim for damages for her treatment in that regard, which is available here.
Issues
Ms Kerins complained of the manner in which the members of the PAC questioned her, which was characterised as a witch hunt.She said that she was significantly traumatised as a result of her appearance before the PAC to the point where she attempted to take her own life.She sought damages for her treatment by the PAC. The respondents argued that any utterances in Parliament by members of the Oireachtas, or a committee such as the PAC, were absolutely privileged and members could not be sued in respect of them.
Commentary by the Court
The Court accepted a number of Ms Kerins’ factual propositions: “it seems to us that it cannot be gainsaid that much of what was put to her, and said about her, in the course of this meeting was damaging to her reputation personally and professionally...She was deemed to be not forthcoming enough and told that she needed ‘to get a grip on herself’”. In relation to the second PAC hearing, the Court noted that “What followed was, by any standards, extremely damaging to Ms. Kerins’ reputation”.
Key Principles
The Court ultimately found that the concept of parliamentary privilege had to trump Ms Kerins’ claims. The key findings which led to that were:-
- She had attended voluntarily, and therefore her ‘fair procedure’ rights were not engaged: “[t]he question of her being afforded Haughey rights to defend herself could never therefore arise when she already had the right to decline cooperation at any stage”.
- The PAC was not making findings of fact: “the issue of jurisdiction is one that properly arises in these proceedings at all…some of the Oireachtas respondents express[ed] themselves in terms which suggest that conclusions were being arrived at…In reality however, these were clearly expressions of opinion by the relevant members devoid of any legal force. They were no more than utterances and as such Article 15.13 has the effect of ousting the court’s jurisdiction”.
- That meant that damages could not be awarded: “The essence of the applicant’s case is a claim for damages arising from those utterances which seeks to make the Oireachtas respondents amenable to the jurisdiction of the court. That cannot be done”.
- Parliamentary privilege is a matter of fundamental importance: “For upwards of four centuries it has been recognised in common law jurisdictions throughout the world that the courts exercise no function in relation to speech in parliament. This is fundamental to the separation of powers and is a cornerstone of constitutional democracy”.
- Such is its importance, that utterances in parliament should not even be examined by the Court: “Ms. Kerins has in various ways invited the court to analyse the utterances in terms of tone and content and to test them for bias, propriety and more. This is to invite the court to examine, discuss and adjudge words used in parliament, the very thing that Blackstone said was not to be done”.
Background – Denis O’Brien’s Case
Mr O'Brien claimed in his case that two TDs had interfered in an ongoing court case in which he was involved, by revealing information in the Dáil about his banking affairs. His core factual claim was that they disclosed confidential matters relating to those banking affairs in the Dáil, in circumstances where he had ongoing proceedings already in being seeking to prohibit communication and broadcasting of that information. Although the TDs’ statements were made in the Dáil, and on the face of it should have been protected by parliamentary privilege, he argued that the TDs’ statements had so clearly interfered with his existing proceedings that the court should intervene. Mr O’Brien had also complained to the Dáil Committee on Procedure and Privileges, which decided that the TDs had not breached the relevant Dáil Standing Order.
Commentary by the Court
The High Court has now delivered judgment (available here) in which it found that the case raised particularly weighty issues, involving: “the tension between the freedom of speech in the Dáil and the role of the courts reaches an extremely acute point in a case where a member of the Houses releases confidential information, subject to a court injunction, into the public arena by means of an utterance in the House”.
Nonetheless, the Court did not have the power to substantively adjudicate on Mr O’Brien’s complaints or erode the concept of parliamentary privilege. The fact that the case concerned a Dáil Committee inquiry as well as statements made in the Dáil made no difference and Mr O’Brien’s case therefore failed: “[t]he two matters are inextricably linked; it is an internal inquiry concerning utterances. The door with respect to justiciability is, in my view, not only closed but double-locked”.
The Court acknowledged that there is a certain lack of clarity in terms of how the Dáil Committee on Procedure and Privileges deals with speeches in the Dáil which potentially infringe on cases which are sub judice. However, ultimately, whether or not the utterances made in the Dáil were damaging or not, they could not give rise to court proceedings:
“there is no doubt that the impact of parliamentary speech can potentially be damaging and dangerous to individuals the subject of the utterances…The plaintiff in the present case offered evidence to the court which granted him the interlocutory injunction as to the damage that would be caused by the revelation of his private banking details. One can readily imagine hypotheticals, such as, for example, the impact of the identification in the Dáil or Seanad of a person charged with a serious sexual offence who is legally entitled to anonymity during court proceedings and who is subsequently acquitted…However, my understanding of the Irish constitutional provisions is that the Courts simply do not have a role in policing parliamentary utterances except, perhaps, in some extremely exceptional and limited circumstance of which the present case is not one”.
Summary
These decisions represent a conclusive endorsement of the concept of parliamentary privilege and illustrate that the Courts have no role in adjudicating on statements made in the Houses of the Oireachtas.
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About the Authors
Robbie Slattery
Robbie is a partner in the Commercial & Business team at Hayes solicitors. Robbie advises on items such as shareholder agreements, share purchase agreements, joint ventures, business sales and business purchases. Robbie also advises on commercial litigation with a particular focus on high value, multi-party litigation, for corporate clients, State entities, charities and private individuals, both on the Plaintiff and Defence side.
Joe O'Malley
Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.