Two landmark judgments delivered by the Supreme Court in Kerins v McGuinness and O’Brien v Clerk of Dáil Éireann have confirmed that the conduct of Oireachtas committees may be reviewed by the courts in certain very limited circumstances, while re-stating the previously understood constitutional principles of parliamentary privilege and the separation of powers.
Article 15 of the Constitution of Ireland 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.” Article 15 also provides that “utterances made in either House … shall be privileged.” These wide-ranging immunities are designed to ensure the democratic independence of the Oireachtas by guaranteeing the freedom of parliamentary debate without fear of reprisal in the courts. They are also a key component of the separation of powers among the executive, legislative and judicial branches of government in Ireland.
The extent to which Oireachtas committees may be said to enjoy similar freedoms in the course of their official duties has received a number of important judicial treatments, including Maguire v Ardagh1, in which the court debarred an Oireachtas committee from making adverse findings of fact against individuals who were not members of the Oireachtas; Curtin v Dáil Éireann2, in which the court held that an Oireachtas committee was entitled to investigate a judge in the context of impeachment proceedings; and Callely v Moylan3, in which the court held that Oireachtas proceedings under its own rules and standing orders in respect of its own members were non-justiciable before the courts, unless there was a clear disregard of constitutional rights.
Against that background, the Supreme Court has recently delivered judgments in two high-profile challenges to certain actions of the Committee of Public Accounts (the “PAC”) and the Committee on Procedure and Privileges (the “CPP”), respectively.
Angela Kerins was Chief Executive Officer of the Rehab Group (“Rehab”), a private charitable organisation in receipt of substantial public monies and predominantly engaged in the provision of services to persons with disabilities. When Ms Kerins voluntarily appeared before the PAC to answer questions which she had understood to relate to public monies received by Rehab, she was in fact quizzed extensively on her own position at Rehab in a manner which the High Court later described as “damaging to her reputation personally and professionally”, as a result of which she suffered ill-health and ultimately resigned from her position as CEO. At another hearing, in Ms Kerins’ absence, PAC members made further negative comments which were “extremely damaging” to her reputation.
After Ms Kerins refused to attend a further hearing on the grounds of ill-health, the PAC applied to the CPP pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 for powers to compel her appearance. The CPP refused to grant compellability powers on grounds that the proposed investigation of Rehab and Ms Kerins was ultra vires the PAC.
Ms Kerins brought proceedings against the PAC in the High Court, seeking damages and injunctive and declaratory reliefs. The High Court in division (Kelly P, Noonan and Kennedy JJ) refused the reliefs on the basis that utterances made by members of the PAC were not justiciable. Ms Kerins was granted leave to pursue a leapfrog appeal to the Supreme Court.
Denis O’Brien had obtained an injunction restraining RTÉ from broadcasting certain confidential information relating to his financial and business affairs. Both Mr O’Brien’s affairs and the injunction application were the subject of extensive media scrutiny at that time. Utterances were made by TDs on the floor of Dáil Éireann which disclosed certain of Mr O’Brien’s affairs that were the subject of the injunction. The High Court ultimately varied the terms of its injunction to exclude the content of the utterances made in Dáil Éireann to allow for media reporting in relation to them.
Mr O’Brien made a complaint to the CPP, alleging that the TDs concerned had abused parliamentary privilege and breached the standing orders of Dáil Éireann by disclosing the relevant information. The CPP found that the TDs had acted in good faith, as part of the legislative process, and had not breached standing orders.
Mr O’Brien instituted High Court proceedings against, inter alios, the members of the CPP, seeking multiple declarations broadly to the effect that the utterances made by the TDs and the failure of the CPP to properly sanction them breached both his constitutional rights and the separation of powers. Similarly to the Divisional Court in Kerins, Ní Raifeartaigh J refused the reliefs on grounds of non-justiciability. Mr O’Brien was granted leave to pursue a leapfrog appeal to the Supreme Court in respect of the manner in which the CPP dealt with his complaint.
Supreme Court judgments
In Kerins4, the Supreme Court reversed the non-justiciability findings of the Divisional High Court and made the following determinations:
- While the Oireachtas and its committees enjoy extensive immunities and privileges from the jurisdiction of the courts pursuant to Article 15 of the Constitution, there is no “absolute barrier” to proceedings concerning committees of the Oireachtas. Notwithstanding that there is no absolute barrier to such proceedings, the court will not intervene in circumstances which would require the court to breach those immunities and privileges, or which would otherwise amount to a breach of the separation of powers;
- In circumstances where a citizen is affected by an unlawful action by an Oireachtas committee, the primary assessor of an appropriate remedy is the Oireachtas, which enjoys a “very wide margin of appreciation” as to how its business is conducted. The jurisdiction of the court to intervene is restricted to circumstances in which there has been significant and unlawful action on the part of such a committee which has gone unremedied by the Oireachtas itself;
- The court would not breach the separation of powers by declaring the actions of the PAC unlawful because the PAC was acting significantly outside its remit and its terms of reference, as determined by both the CPP and the court. It was an important feature of the court’s consideration that the CPP itself had found that the PAC acted unlawfully;
- A citizen who accepts an invitation to appear before an Oireachtas committee hearing is entitled to expect that that committee will act within the scope of its invitation. The court reserved for further hearing in April 2019 the question as to whether the PAC acted outside the scope of its invitation to Ms Kerins; and
- In circumstances where the departure from constitutional norms by the Oireachtas or its committees is significant, the court may possess an “unusual and exceptional” jurisdiction, in its residual role as guardian of the Constitution, to intervene in order to vindicate the constitutional rights of citizens or to protect the overall constitutional fabric. This has become known as the so-called ‘Callely exception’ to the general rule of non-justiciability of official Oireachtas action. As a definitive response to this question was not necessary to dispose of the appeal, however, the court expressly reserved its answer for another day.
In O’Brien5, on the other hand, the Supreme Court upheld the decision of Ní Raifeartaigh J as to the non-justiciability of Mr O’Brien’s challenge to the CPP and dismissed his appeal on the following grounds:
- The challenge maintained by Mr O’Brien against the decision of the CPP involved an “indirect or collateral challenge” to the utterances made by the relevant TDs, which was constitutionally impermissible by reference to the principle of parliamentary privilege enshrined in Article 15 and the separation of powers. It is for the Oireachtas, and not the courts (unless a Callely exception is made out), to protect any rights infringed by privileged utterances such as arose in this case;
- Even if a Callely exception to the general rule of non-justiciability (as also considered by the court in Kerins) exists, it would only apply in a case of either an “egregious breach” by the Oireachtas of its obligation to protect the rights of citizens or a “persistent failure” on the part of the Oireachtas from which it could be inferred that it did not intend to afford appropriate protection to the rights of citizens. As neither of those situations were present, such a Callely exception would not assist Mr O’Brien in these proceedings; and
- The CPP, in considering complaints by citizens, is carrying out a delegated constitutional function and enjoys the same immunities and privileges as the Oireachtas while performing that function. Mr O’Brien’s attempt to review the CPP’s decision was accordingly non-justiciable.
Kerins and O’Brien are very significant decisions in our constitutional landscape and have already sparked lively debate. While the existence or otherwise of an exception to the general rule of non-justiciability of the type suggested in Callely was reserved for consideration in a future case, the court has nonetheless indicated its preparedness to venture down that path should circumstances of exceptional and egregious character arise which require the court’s intervention.
The reaction of Oireachtas committees to the judgments remains to be seen, but it seems likely that the flexing of this judicial muscle will result in some degree of increased caution on the part of committees when conducting certain official inquiries—particularly into high-profile matters—with a probable consequence that such committees will now seek and rely on legal advice to a greater extent.
When taken together, however, Kerins and O’Brien are strong re-statements of the separation of powers and the privileges enjoyed by the Oireachtas, its committees and its members, free from judicial oversight. The court was clear that it falls to the Oireachtas, in the first instance, to provide protection for the constitutional rights of those who appear before its committees. There may now be an incentive for the Oireachtas to augment its procedures and standing orders to make better provision for those persons’ constitutional rights, which in itself would decrease the likelihood of judicial intervention in future.