Public & Administrative Law Update: High Court Strongly Affirms Extent of Parliamentary Privilege & Immunity
02 March 2017
Ex-Rehab Group CEO Angela Kerins failed in her claim for damages against members of a parliamentary committee. She claimed that parliamentary privilege and immunity did not apply, as it had exceeded its jurisdiction by making utterances that constituted findings and determinations adverse to her, and failing to afford due process. A Divisional High Court has ruled against her in a case that reiterates important questions of freedom of speech in Parliament, the separation of powers, and the extent to which the courts may intervene in the affairs of Parliament.
Angela Kerins lost her High Court action against the way in which public hearings were carried out by the Dáil’s Public Accounts Committee (“PAC”). This was in a case described by the three-judge Divisional High Court as concerning “important questions of freedom of speech in Parliament, the separation of powers, and the extent to which the court may intervene in the affairs of the Oireachtas”.
Article 15.13 of the Constitution is crystal clear: 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”) similarly provides that a member of a House shall not be amenable to any court or authority (other than the House) in respect of any utterance in or before a parliamentary committee.
Notwithstanding this, Ms Kerins had sought damages for personal injury, loss of reputation and loss of career arising from the manner in which the PAC had conducted its hearings. She claimed that it had exceeded its jurisdiction by making utterances that constituted findings and determinations adverse to her, and failing to afford due process. On established authority she claimed that she was thus, as a citizen, being made personally accountable to Parliament in a constitutionally impermissible way. On this basis, she claimed, parliamentary privilege and immunity did not apply.
Findings of the Court
While it seemed sympathetic to the underlying complaints made by Ms Kerins and commented that it “could not be gainsaid that much of what was put to her, and said about her… was damaging to her reputation personally and professionally”, a three-judge High Court nevertheless rejected her claim and the arguments on which it was based.
The death-knell for her case was Ms Kerins’ voluntary attendance at the PAC hearings. After her initial attendance, the PAC applied to the Committee on Procedure and Privileges (“CPP”) to compel her to attend, but the CPP rejected its application. At all times, Ms Kerins was therefore free, as a matter of law, not to attend, or to attend and refuse to answer questions. This meant that the PAC could not exceed its jurisdiction, as no jurisdiction was being exercised by it, the proceedings being essentially consensual.
Colourful Utterances, not Findings or Determinations
The Court also held that, while the language and expressions of opinion of the PAC members were colourful and damaging, contrary to Ms Kerins’ submission, these did not constitute findings or determinations adverse to Ms Kerins such as would have taken the PAC outside of its remit.
Therefore, the utterances were just that: utterances, or expressions of opinion, with no legal effect - no matter how colourful or damaging.
Therefore, Ms Kerins was essentially inviting the Court to do precisely that which the Constitution, the 2013 Act, and “upwards of four centuries” of common law authority said it could not do, which is to exercise functions in relation to speech in Parliament.
However, this was not to leave Ms Kerins without a remedy or with a denial of her constitutional rights. Parliament is itself required to uphold the Constitution, and to respect the rights of citizens. The correct custodian of those rights was the Oireachtas and not the Court, and this was fundamental to the separation of powers doctrine. In so stating, the Court noted that the Oireachtas should be mindful of the heavy responsibility resting on it to protect citizens’ constitutional rights in cases where there would be no recourse to the courts.
This decision robustly reaffirms the reach of parliamentary privilege and immunity, and the extent to which the Constitution protects freedom of speech in parliament.
Provided they are not findings or determinations adverse to a person, utterances of whatever type are absolutely privileged for defamation purposes. Also, members of the Houses, or any committee, are not amenable to court proceedings in respect of them. They are simply not justiciable before the courts.
The Oireachtas itself must however uphold the constitution, and respect citizens’ rights. Citizens also have the right to decline invitations to participate voluntarily in parliamentary committee hearings, where there is no existing duty to attend, and where no power of compulsion has been given or exercised.
Voluntary participation will necessarily render unsuccessful even those limited cases where it might otherwise have possible to bring justiciable claims.
Significance of Findings
This judgment is likely to impact on a separate case taken by businessman, Denis O’Brien, who argues that the courts should intervene where the CPP has allegedly incorrectly and impermissibly cleared parliamentarians of abusing privilege in utterances concerning him. Judgment in this case was reserved until after the judgment in the Angela Kerins case was delivered, and is anticipated shortly.
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