Ireland: High Court Strongly Affirms Extent Of Parliamentary Privilege & Immunity

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".

Background

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.

Voluntariness

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.

Conclusion

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
13 Sep 2017, Seminar, Dublin, Ireland

We will host our third Employment Law Top Tips seminar for 2017 on Wednesday 13 September in our offices at South Bank House, Barrow Street, Dublin 4.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.