We are pleased to welcome this post by Dr. Tom Hickey, School of Law and Government, Dublin City University.
Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers, and of people generally. It prevents one arm of government from doing justice in order to allow another arm of government to do its job well. In today’s High Court judgment in Kerins v McGuinness, we see something like that at play, although it is probably better to say that in this instance constitutional law prevented one institution (the courts) from considering whether to offer a remedy for alleged injustices done unto Angela Kerins in order to allow another institution (parliament) to freely carry out its functions.
The constitutional norms that prompted the outcome concern parliamentary privilege: they provide that “utterances made in either House [of the Oireachtas] shall be privileged” (Article 15.12) and that TDs and Senators are not “amenable to any court or any authority other than the Oireachtas” for “any utterances in either House [of the Oireachtas]” (Article 15.13). These rules were not thoughtlessly adopted nor are they in any sense arbitrary. In fact they are concerned in the first instance with promoting the goals of good and non-arbitrary government. The Oireachtas has two pretty important tasks: a) to make those who wield public power answerable for how they exercise it and b) to make laws for the state. And the constitutional rules at issue are concerned with ensuring that parliamentarians are not constrained in how they go about these tasks by fear of court sanction. That is the basic rationale of these norms, and they go back at least as far as the Glorious Revolution.
So what was the case about? Angela Kerins was chief executive of the Rehab Group, a registered charity that receives a lot of funding from the HSE to carry out various health and social care. Following all kinds of public disquiet about the charity sector, including supposedly exorbitant executive pay and travel expenses, Ms. Kerins was invited to attend the Dáil Public Accounts Committee (PAC) in early 2014. For various reasons, she was not under an obligation to attend: the Committee did not compel her to do so. But she did attend, presumably in part because she felt that her refusal would not play well with the public. At the PAC proceedings, she was subjected to what she deemed to have been unfair treatment: members of the Committee had asked her questions about her pension arrangements and other issues despite not having given her advance notice that they would do so; it was suggested to her by various members of the Committee that she was “grossly overpaid,” that she ran Rehab “like a personal fiefdom,” and that she had done more damage than good to the charity sector. She thus sought from the High Court declarations including that the PAC’s activities had been unlawful and tainted by bias as well as an order removing from the record of the PAC all references to her. She also sought damages.
The judgment by the President of the High Court, Peter Kelly is quite emphatic on a point of distinction between the application brought by Ms. Kerins and that brought (successfully) by Jock Haughey against a PAC inquiry that led to the famous In Re Haughey  IR 217 judgment as well as that brought (also successfully) by various members of the Gardaí against a PAC sub-committee inquiry that led to the Abbeylara judgment (Maguire v Ardagh  IR 38). In both of those instances, those whose reputations were on the line had been compelled to attend Oireachtas inquiries. This tended to render the inquiries adjudicative as far as the judges were concerned: they took on powers associated with courts and were concerned with adjudicating on disputed questions. And it also brought the question of jurisdiction into play. That is, a key question for the judges in those instances was: did the Oireachtas committees have the jurisdiction, or the power, to compel the witnesses?
Angela Kerins’s case was different insofar as she had not been compelled to attend the PAC. She could have refused to do so without any fear of legal sanction. (As it happens, later in 2014 she was invited to re-attend, but this time she refused, effectively concluding the liaising between her and the PAC). She could have simply upped and left the Committee as it proceeded, similarly without any fear of legal sanction. Thus, when the parliamentarians had never managed to exercise any of their compellability powers (they applied for them after she declined her “invitation” to re-attend, but the relevant Oireachtas committee rejected the application for reasons I ignore here) the judges could hardly subsequently rule that they had breached those powers. And when her In Re Haughey procedural rights had not been engaged in the first place – insofar as she could have simply left the scene – she could hardly now seek a court order declaring that they had been breached.
The inquiries leading to In Re Haughey and Abbeylara similarly purported to make findings against individuals, in the latter instance, potentially including a finding of unlawful killing. Angela Kerins’s case was different on this front too, despite the characterisation put on it by her lawyers. This was not an inquiry set up to investigate her conduct and it did not purport to make any finding against her. Thus, for the High Court judges, the utterances of the parliamentarians in the PAC were mere expressions of opinion by them individually, and were “devoid of any legal force” (as distinct from considered findings made as a dedicated Oireachtas inquiry).
Reading Kelly P’s judgment, it looks as if these elements alone made it a difficult case for Angela Kerins to win. But there was also the question around privilege for utterances made in the Oireachtas, referred to above. This is a broader constitutional principle of some general democratic import, but it would also be relevant to anyone considering litigation against parliamentarians for claims made during parliamentary debates concerning matters of public interest (or indeed otherwise).
In referencing Article 9 of the Bill of Rights 1689 as “one of the forbears of Article 15”, Kelly P. invokes the notion that the constitutional norms at stake were part of a range of mechanisms aimed at promoting parliamentary autonomy so as to rein in arbitrary power. They were important in that period in part so as to render monarchy constitutionally subordinate to parliament. But they remain so, or so the idea goes, so as to ensure that any individual or group that wields great power – perhaps financial power – combined with a litigious inclination, can less easily lord it over parliamentarians, eyeballing them so as to not ask questions they might not want asked. As Murphy J observed of Article 15.13 in Garda Representative Association v Ireland  IR 193:
This provision is expressed in wide terms and obviously it is desirable that it should be interpreted in such a way as to permit and encourage members of the Oireachtas to engage in debate on matters of national interest without having to restrict their observations or edit their opinions because of the danger of being made ‘amenable to any court or any authority’ at the suit of some person who may feel aggrieved by the statements made in the course of debate.
Kelly P. goes on to emphasise that the strong nature of parliamentary privilege has been found not to be inconsistent with the access to justice provisions of Article 6.1 of the European Convention on Human Rights. In A v United Kingdom , the Strasbourg Court referred to its being a “virtually universal principle” that was “designed not to protect individual members, but Parliament as a whole, and operated only where it was strictly necessary, namely within Parliament itself.”
It is hard to see the Kerins judgment as in any sense a new departure. It distinguished the Abbeylara judgment, and – while its overall thrust may be distinctive: a boon for parliament rather than a curse – it is hard to see that it is inconsistent with it, as such. It is interesting in that it reminds us of that ironic effect of the principle of comity so fundamental to public law: it is surely no less damaging to an individual to be defamed in the Oireachtas than in any other forum, yet Articles 15.12 and 15.13 prevent judges from remedying defamation that occurs there (or indeed from considering whether defamation has occurred there). Similarly with public discussion of what an individual might think of as his private affairs: it is no less burdensome if that happens in parliament than in some other public forum. But such is the constitutional norm. This is not an arbitrary concession to injustice; rather it is premised on the notion that the right of one citizen against defamation cannot trump the value of unrestrained parliamentary discussion for all citizens.