What role do the courts have where a member of the Oireachtas breaches a citizen’s constitutional rights?

The Supreme Court will hear oral submissions this week (Thursday, 8th March) in two appeals relating to the remedies available through the courts–if any–to a private citizen, where a member of the Oireachtas has breached their constitutional rights.

The cases are Kerins v Deputy McGuinness & Ors and O’Brien v Clerk of Dáil Éireann. Both cases come direct from the High Court. The High Court held that both Kerins and O’Brien had suffered damage as a result of utterances by members of the Oireachtas. And although the Constitution guarantees to vindicate the personal rights of every person, the High Court held that the Constitution’s provision of privilege to the utterances made within the Houses of the Oireachtas and the constitutional principle of the separation of powers meant that it could not offer either claimant a legal remedy.

Article 15.12

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

Article 40.3

1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

 

Kerins v Deputy McGuinness & Ors

Ms Kerins voluntarily attended a hearing of the Public Accounts Committee in the Dail. She was not accompanied by lawyers and was given no notification of the nature of much of the questioning. Much that the deputies put to her and said about her was damaging to her reputation, both personally and professionally.

The Divisional High Court (3 judges) accepted that Kerins had suffered damage due to the PAC’s actions. But the court held that it was powerless to intervene.

Granting leave for a leapfrog appeal, the Court stated:

28. The issues raised include, as a matter of general public importance, the legal safeguards available to witnesses who appear before PAC in a voluntary capacity. The role, if any, which the Court has in protecting such witnesses, in circumstances where there are the important issues of freedom of speech in the Legislature, the separation of powers, and the extent to which the Court may intervene in the affairs of the Legislature. Inter related is the issue as to whether or not the Divisional Court overruled In Re Haughey and Ardagh v Maguire.

29. The interests of justice are engaged also as the Divisional Court ruled against the applicant, while finding that she had been damaged professionally and personally by the actions of the PAC, but that there was no legal remedy for the wrongs perpetuated.

30. The Constitution guarantees to vindicate the personal rights of citizens, and to protect citizens against unjust attack. In the circumstances, the issue of safeguarding such rights meets the criteria of the interests of justice in this application.

 

O’Brien v Clerk of Dáil Éireann

In April 2015, the High Court granted O’Brien an interlocutory injunction against RTE revealing details of his banking information in a documentary on the Irish Bank Resolution Corporation. Subsequently, two TDs, Paul Murphy and Catherine Murphy, revealed in the chamber of Dáil Éireann the information which was the subject of the injunction.

O’Brien made a complaint regarding the two TDs to the Dáil Committee on Procedure and Privileges. The Committee determined that the TDs had not breached the relevant Dáil Standing Order. O’Brien issued High Court proceedings seeking judicial review of the Committee’s decision.

In the High Court, Ní Raifeartaigh J held that:

… the utterances rendered the court proceedings almost entirely moot; that damage was undoubtedly done to the plaintiff; and that the release of the information appears to have been done in a deliberate and considered manner by the Deputies in question. This was as far from an accidental slip of the tongue on the floor of the House as one could imagine.

However, Ní Raifeartaigh J held that the Committee’s decision was not justiciable and dismissed proceedings. She also held that the legal issue was not sufficiently novel to warrant a departure from the general rule that costs follow the event and awarded the State its costs against O’Brien.

O’Brien applied to the Supreme Court for leave for a leapfrog appeal. The Court determined that:

… the case meets the criteria of general public importance and/or the interests of justice. … the matter is suitable for a direct appeal in that any clarification of the existing authorities (if clarification is required) should come from this Court. Further, it seems that the case concerns a single issue of law and its parameters would therefore be unlikely to be reduced by further analysis in the Court of Appeal.

The Court granted leave on the issues O’Brien raised: the justiciability of decisions by the Dáil Committee on Procedure and Privileges; and costs.

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