In 2019, the Irish Supreme Court decided two cases concerning speech in parliament. The same seven judges sat in each case. The seven agreed in each case: Frank Clarke, the chief justice, wrote a single judgment for the Court each time.

The applicant won in the first case, decided in late February. The Supreme Court granted a declaration of unlawfulness sought by Angela Kerins against a parliamentary committee on foot of that committee’s unfair interrogation of her on matters relating to her leadership of a publicly-funded charity. In ruling as it did, the Supreme Court overturned a Divisional High Court ruling that Kerins’ claims were non-justiciable. The Divisional Court had interpreted the Article 15 provisions in light of the early modern English laws to which they owe their provenance. “For upwards of four centuries,” Kelly P said, “it has been recognised in common law jurisdictions throughout the world that the courts exercise no function in relation to speech in parliament.”

In the second case, decided a week later in early March, the applicant lost. The Supreme Court found Denis O’Brien’s claim to be non-justiciable on the basis of the Article 15 privileges. The case recalls a 2018 episode at Westminster in which Lord Peter Hain used parliamentary privilege to name a businessperson who had been the subject of serious allegations in the Daily Telegraph. In the Irish version, O’Brien had obtained an interim injunction against various broadcasters from disclosing information concerning his banking affairs. Shortly afterwards, two TDs made statements made on the floor of Dáil Éireann disclosing that very information. O’Brien tried to evade Article 15 by taking his action against the parliamentary committee that had rejected his complaints regarding the statements rather than against the parliamentarians who made them. The Supreme Court held that if it were to engage in review of the committee’s decision it would be “indirectly or collaterally (and, therefore, impermissibly) considering the appropriateness or otherwise of utterances made in the Houses.”

I consider the judgments in Angela Kerins and Denis O’Brien in an article that is forthcoming in Public Law (available in draft form here). In it, I set out why I think the former the most intellectually stimulating judgment handed down by the Irish Supreme Court in decades. I explain also why I think the Court got it wrong in the case.  

In this blogpost, my focus is on the evolution of parliamentary immunity in Irish constitutional law in the decades leading up to Angela Kerins and Denis O’Brien. For much of the early life of the Constitution, as we shall see, the Article 15 provisions were understood by some as having codified for the Irish State the position pertaining in the UK. How then did the Irish position come to deviate from the UK’s to such an extent that, in 2019, Clarke CJ and his colleagues could very plausibly think that to find Angela Kerins’ grievance justiciable – despite the intimate connection with utterances made in the Oireachtas – would be nothing new under the Irish constitutional sun?

Before and after In re Haughey

Article 15.10 of the Irish Constitution provides that:  

Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

Article 15.12 adds:

All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

And by Article 15.13:

The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

For provisions of a codified constitution addressing a relatively specific area of law, they leave so many questions so open. The lack of an express ouster clause in Article 15.10 – in such marked contrast to article IX of the Bill of Rights – is often remarked upon. Was this by accident or design? What implications is a Court to draw, either way? What of the phrase “privileged” in Article 15.12: does it mean that the courts can have no cognisance, whatever the context, of utterances made in the Houses? And several such questions besides.

That the drafters relied heavily on phrasing used in various parliamentary resolutions and laws from 17^th century England is quite clear. It is presumably one of the reasons why some Irish constitutional scholars and practitioners, particularly in the decades following the enactment of the 1937 Constitution, thought the answers to these and other such questions lay in English jurisprudence. Consider the comments of Patrick McGilligan, a professor of constitutional law at UCD and later Attorney General, in a Dáil debate on privilege in 1947:

It took a long time to get the decision which the British did get in the Declaration of the Bill of Rights, that there should be freedom of debate in parliament, that parliamentary proceedings should not be capable of being impeached in court, but that the House itself should take charge. For 250 years we have been told to keep and to hold fast to the same privilege.

John A Costello, a then former Attorney General and later Taoiseach, said something along the same lines in a different Dáil debate the same year. Ireland had “adopted…the principles which were tried and found to be essential for democratic Government through parliamentary institutions in Great Britain.” The provisions of Article 15 “…are taken from British procedure and practice, the constitutional law of Britain.”

This was not a universally held view in that period, as Brian Murray points out in the outstanding scholarly contribution on this subject. And we cannot overlook that it was parliamentarians that were making these observations, in parliament. But it became difficult to fully sustain once the Supreme Court decided In re Haughey in 1971.

This was a case with much in the way of political intrigue. The protagonist was a brother of a then recently-sacked minister and later Taoiseach, Charles Haughey. Jock Haughey, a private citizen, had been summoned to appear before the Dáil Public Accounts Committee (PAC) to answer questions in connection with an alleged conspiracy to smuggle weapons into Northern Ireland for use by the IRA. The detail of the case needn’t detain us here: Suffice it to say that Jock turned up, read a statement, and then refused to answer questions. This set in train a process envisaged by the Committee of Public Accounts Act (1970), concluding in his being sentenced to six months’ imprisonment by the High Court.

Haughey won his challenge to the constitutionality of the 1970 Act and to the proceedings of the committee but the important point for present purposes is that in delivering judgment on his various claims – one of which prompted dicta on procedural fairness that quickly commanded landmark status for the case – the judges crossed a line that UK judges would never have crossed. They reviewed the terms of a Dáil resolution and Dáil standing orders as well as the proceedings of a Dáil committee, including utterances made by the committee chair.

The remarkable thing about In re Haughey is that justiciability is not addressed at any point in any of the judgments, and appears not to have been argued by counsel defending against Haughey’s claims. Despite the constitutional provisions – and despite the understanding of those provisions exemplified by the excerpts from those early Dáil debates – the judges seemingly assumed their authority to engage in the review.

Given the standing the Haughey case came to enjoy in Irish public law, we could speculate that later Irish judgessaw the Rubicon as having been crossed. They were now “in blood Stepp’d in so far…that returning were as tedious as go o’er.”

Abbeylara and Callely

It took another three decades before Irish judges “waded more” on the matter of justiciability of Oireachtas proceedings. In 2004, the Supreme Court called halt to an Oireachtas inquiry into an episode involving the killing of a man by members of the Gardaí. Commonly referred to as Abbeylara, the case is best known for the disagreement among the judges as to whether the Oireachtas had an “inherent power” to conduct the inquiry. Five of the seven thought not.

Of more interest here is the fact that, whereas in Haughey justiciability of Oireachtas proceedings had simply been assumed, in Abbeylara some of the judges directly considered the issue. Each of the four who did ruled that the Article 15 provisions did not block them from reviewing the various internal Oireachtas proceedings that figured in the case.

These included Keane CJ, who was actually one of the two dissenting judges on the “inherent power” issue: He saw the powers expressly vested in the Oireachtas by Article 15 as constituting “a relatively small, carefully landscaped promontory behind which lies a vast hinterland of unwritten conventions, custom, precedents and modes of behavior derived from history and experience.” The beautiful and oft-cited line points to something counter-intuitive within Keane CJ’s great dissent in Abbeylara. Because of the unwritten customs and modes of behavior carried over from Westminster, he sees the Oireachtas as having the power to conduct a fact-finding inquiry into something with such serious implications for the good names of individual citizens. Yet he rules against the Westminster position on justiciability. (The former in line with the McGilligan/Costello thinking; the latter in tension).

A decade later, in 2014, three of the Abbeylara judges were still on the Court when it decided a third case which had a major bearing on the 2019 cases. Callely v Moylan involved a member of the Seanad (Senate) who, for reasons relating to expenses claims, had been suspended without pay on foot of a Seanad committee recommendation. There was a bamboozling series of splits among the judges in the Supreme Court. Ultimately, Senator Callely lost his challenge because four of the seven thought the committee had not breached fair procedures.

For present purposes, the important split in Callely was a diametric one on the matter of justiciability. Among those who ruled the proceedings non-justiciable were O’Donnell and Clarke JJ – each of whom had become leading figures on the Court by the time Kerins was decided. In their joint judgment in 2014 they articulated a purposive interpretation of the constitutional text, supplementing it with Canadian and UK constitutional comparisons. This chimed with their articulation of the range of application of “privilege” in Article 15.12. For them – at that stage – it went beyond mere protection of parliamentarians against defamation suits; rather, it “means privilege from any legal proceedings.”

The Irish position: pre-Angela Kerins

Casting an eye back on this Haughey-Abbeylara-Callely trilogy, two features warrant particular emphasis:

• In all three cases the applicant or applicants had been compelled to attend the hearings under statutory powers enjoyed by the committees in question – i.e. on pain of criminal sanction.

• In all three cases the committees had (Haughey, Callely)or proposed to (Abbeylara) engage in a process designed to make findings in respect of the applicants.

As mentioned, the justiciability issue was not addressed at all in In re Haughey. Where it was addressed in Abbeylara and Callely, the judges, in ruling as they did on the point, tended to set particular store by these two features. None of them ruled clearly that it was these features alone which brought the episode over the line, or that the absence of either would have been enough to render it non-justiciable. (The fact that the applicants in Abbeylara were non-members of the Oireachtas was thought important. So too that the individual right to a good name was engaged to such a degree). But it is clear that each of the coercive and adjudicatory power features was thought highly pertinent to the issue of justiciability.

The judgment in Angela Kerins

In cases decided by the Irish Supreme Court, facts matter a great deal. None more so than in Angela Kerins,although on this occasion – for reasons that I think relate to the fact of the constitutional protections afforded to parliamentary utterances – not all of the salient facts made it to the pages Court’s written judgment.

Kerins was the CEO of Rehab, a private charity that carries out healthcare-related work for which it receives a lot of public money. Following media attention on the issue of executive pay in the charity sector, Kerins took up an invitation by the chair of the Dáil Public Accounts Committee (PAC) to attend a hearing in February 2014. Members of PAC treated her appallingly at the hearing and afterwards: they bullied her and almost certainly breached her rights. The evidence was that Angela Kerins was significantly traumatised as a result and that she attempted to take her own life a few weeks later. She received further invitations to appear before PAC in April, which she declined.

Kerins’ application for a declaration of unlawfulness failed on the justiciability ground in the Divisional Court, with Kelly P’s dicta concerning the Article 15 privileges (see the opening paragraphs above) echoing the pre-In re Haughey understandings of figures such as Paddy McGilligan and John A Costello – as well as those intimated in Keane CJ’s ornate line in Abbeylara. The Supreme Court held otherwise, going on to make a finding of unlawfulness for what Clarke CJ described as an “action” of the committee as a collective whole: that action consisting in “inviting her to attend the hearing on a particular basis and then acting significantly outside of the terms of the invitation once she attended.”

Here, I consider just two elements of the judgment in Angela Kerins. The first comprises two related features of the Kerins’ episode – or rather the absence of two features – each of which distinguishes her case from the Haughey-Abbeylara-Callely trilogy:

• that Kerins was invited to attend the PAC committee hearing. She was not compelled under statutory powers to attend. (Indeed no statutory power was engaged in the case at all).  

• that the committee had this time not been tasked with making findings.

These distinguishing absences should never have been seen as giving PAC free rein, or as rendering the hearing a Constitution-free zone. (Not before, during, or after the hearing). But they do render the episode qualitatively different from those in the earlier cases. More to the point, they do so in ways that bear heavily on questions concerning the purpose and legitimacy of judicial power. I think the Supreme Court would have been wrong to render the combination of coercive and adjudicatory power a rigid line demarcating justiciable from non-justiciable Oireachtas proceedings. I do think, however, that the fact her claims were deemed justiciable despite these absences – particularly given the manner in which this was articulated – renders the judgment in Angela Kerins a “wading more” by Irish judges on the matter of justiciability of Oireachtas proceedings.

As for the second feature: If O’Donnell and Clarke JJ were to stick stubbornly to their Callely interpretation of “privilege” (See bottom of Section III), Angela Kerins was doomed. They didn’t. They and their colleagues took the inclusion of the phrase “wherever published” in Article 15.12 to suggest that it is a (specifically) reporting-oriented form of privilege with which the constitutional protections are “at least principally” concerned. They are designed fundamentally “to prevent people from being sued for what might otherwise be actionable statements…”

They doubled down in fact, putting paid to routine reference to UK norms in the interpretation of the Irish provisions. Though recognising that the drafters had looked to Westminster, and that such reference might accordingly be “helpful” to Irish judges, Clarke CJ deemed the Irish constitutional infrastructure distinct to the extent that, if there were to be an absolute barrier to judicial intervention, “it is not to be determined by lazy analogy with current or historic practice in the United Kingdom [but rather…] from what is to be deduced from the text and structure of the Irish Constitution.”

Conclusion

The title of this post was not chosen for its accuracy (alone). It might be interpreted as suggesting that I think some pure form of the 1937 Constitution to have rigidly codified for the Irish State the position pertaining in the UK; that I think successive Irish judges to have erred in this domain, diminishing Irish democracy along the way.

I think none of those things.

The Free State Constitution of 1922, in Article 18, notably characterised each of the Houses of the Oireachtas as a Court – presumably attributable to the English concept of the High Court of Parliament. The fact that that characterisation finds no place in the 1937 text is telling. So too is the fact that that text, in Article 34, vests in the courts “full original jurisdiction in and power to determine all matters and questions whether of law or fact,” as well as power to invalidate laws. The Irish system was different to the UK’s in ways that weakened the Article 15 immunities from the beginning.

I do think it bears emphasis that the Supreme Court in Haughey, a case that came to enjoy landmark status entirely for other reasons, simply assumed the jurisdiction that it did: to review the terms of a Dáil resolution, Dáil standing orders, and proceedings of a Dáil committee, including utterances made by the committee chair. The ship set sail in In re Haughey, and it has been sailing gently ever since.

Thank you to Robert Craig, Alison Young and Michael Gordon for comments. Thanks also Brian Murray, the legal scholar and lawyer (now judge) whose contributions in this domain of Irish constitutional law have been so important.

Tom Hickey is Assistant Professor at the School of Law and Government, Dublin City University.

(Suggested citation: T. Hickey, ‘The weakening of parliamentary immunity by the Irish Supreme Court’, U.K. Const. L. Blog (2nd June 2020) (available at https://ukconstitutionallaw.org/))