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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Howlin -v- The Hon. Mr. Justice Morris [2005] IESC 85 (20 December 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S85.html
Cite as: [2005] IESC 85, [2006] 1 ILRM 44, [2006] 1 ILRM 440, [2006] 2 IR 324, [2006] 2 IR 321
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Judgment Title: Howlin -v- The Hon. Mr. Justice Morris Composition of Court: Murray C.J., Denham J., Mc Guinness J., Hardiman J., Geoghegan J. Judgment by: Geoghegan J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting | |
Other (see notes) | Murray C.J., Denham J. | |||
Other (see notes) | Mc Guinness J. | |||
Notes on Memo: Allow Appeal and Set Aside High Court Order, Dismiss Cross Appeal
- 24 -
THE SUPREME COURT
121 & 139/04
121 & 139/04
Murray C.J.
Denham J.
McGuinness J.
Hardiman J.
Geoghegan J.
BETWEEN/
BRENDAN HOWLIN
Applicant/Respondent
and
THE HONOURABLE MR. JUSTICE FREDERICK MORRIS, SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAÍ OF THE DONEGAL DIVISION
THE HONOURABLE MR. JUSTICE FREDERICK MORRIS, SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAÍ OF THE DONEGAL DIVISION
Respondent/Appellant
and
EIRCOM PLC AND THE COMMITTEE ON
PROCEDURE AND PRIVILEGES OF DÁIL ÉIREANN
EIRCOM PLC AND THE COMMITTEE ON
PROCEDURE AND PRIVILEGES OF DÁIL ÉIREANN
JUDGMENT of Mr. Justice Geoghegan delivered 20th December 2005
Mr. Brendan Howlin is a member of Dáil Éireann and a former member of the Government. He is the applicant in this application for judicial review which was granted in the High Court but he is the respondent on the appeal to this court. Mr. Justice Morris, Sole Member of the tribunal referred to above is named as the “the respondent” on the application for judicial review though of course he is the appellant on the appeal. To avoid confusion arising out of the double use of the word “respondent” I intend henceforth referring to the two formal parties to the appeal as “Mr. Howlin” and “the Sole Member” respectively. Eircom is not seriously concerned with this appeal as it is willing to abide by any order a court may make. The second notice party has had an active involvement in the appeal however and made oral and written submissions. I will henceforth refer to it as “the committee”.
Mr. Howlin, in his capacity as a TD, received confidential information by telephone in relation to alleged malfeasance on the part of certain members of the Garda Síochána which would be relevant to the inquiry conducted by the Sole Member. The Sole Member, however, considers it essential that the identity of the informant be disclosed to the tribunal. Mr. Howlin through his counsel and in correspondence has informed the Sole Member that he has not been given permission by his informant to disclose his identity. Mr. Howlin refuses to give that information to the Sole Member in the absence of such permission. The tribunal made an order for discovery against him of all documentation connected with the information including Eircom telephone bills which included records of Mr. Howlin’s telephone calls. Mr. Howlin had claimed privilege and resisted the making of the discovery order. In this connection I am using the word “privilege” in a loose sense as including not only legal privilege in the strict understanding but also a legitimate claim to non-disclosure in the public interest. Mr. Howlin claimed privilege both under provisions of the Constitution and alternatively at common law. The Committee was allowed to intervene in the tribunal and its counsel claimed that on foot of a resolution made by the committee combined with his appearing before the Sole Member and objecting to the documentation being discovered, the committee was exercising the power of Dáil Éireann under Article 15.10 of the Constitution and lawfully delegated to it “to protect … the private papers of its members.”
Counsel for Mr. Howlin in his submissions to the Sole Member claimed in the first instance an absolute constitutional privilege and in this connection relied on Article 15.10, Article 15.12 and Article 15.13 of the Constitution. Those three paragraphs in Article 15 read as follows:
“10. 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.
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.
13. The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony 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.”
Following on extensive oral submissions before the Sole Member from counsel for the tribunal, counsel for Senator Higgins (I will explain his role) counsel for Mr. Howlin and counsel for the committee, the Sole Member made a determination to the effect that privilege could not be claimed under Article 15.13 because the information given to Mr. Howlin was never uttered by him in the Dáil. He rejected the argument that he should apply a liberal interpretation to that provision having regard to the decision of this court in Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227 where the court had held that in a case where immunity attached to a statement made by a deputy in the Dáil which was subsequently repeated by him in a statement of evidence prepared for a tribunal, such repetition did not constitute a waiver of the privilege conferred on the deputy in respect of his utterance within the House.
This issue was argued again in the judicial review proceedings in the High Court before Kearns J. from whose order this appeal has been brought. Kearns J. took the same view as the Sole Member in relation to the argument based on Article 15.13. He made it quite clear that in his view that provision could not be invoked unless the information had first been uttered in the Dáil which it had not been. It is perhaps appropriate at this stage to state firmly that I am in complete agreement with the views on this matter expressed by the Sole Member and upheld by Kearns J. and there is nothing which I can usefully add except to make clear that in arriving at this view, I am fully taking into account the arguments put forward by counsel for Mr. Howlin that anomalous situations could be perceived to arise from such a view.
The Sole Member went on to deal with the much more difficult question of whether privilege could be claimed under Article 15.10.
On this issue a number of separate questions might have to be considered. In particular I would identify the following.
“1. Does Article 15.10 create a self-executing privilege?
2. If so, is it an absolute privilege and, if not, what are the limitations?
3. In relation to so called ‘private papers’ is the privilege the privilege of the House or the privilege of the deputy or of both?
4. If the said provision does not create a self-executing privilege does it permit the House to bring such a privilege into existence and if so what are the answers to the questions in relation to the nature of such a privilege as already set out above?.
5. If any privilege in relation to private paper has to be established by the House what are the formalities required?
The Sole Member dealt with these matters in the following way. First of all he had no difficulty in holding that the documents sought including the telephone records were “private papers” of the deputy within the meaning of Article 15.10. This appeal has to be approached in my view on the assumption that that finding is correct and at any rate I would see no reason to dispute it. I mention this because an issue as to whether the telephone records should be included within the category of private papers was raised in written submissions on behalf of the tribunal notwithstanding that finding by the Sole Member. I do not propose to deal with the matter further.
The approach of the Sole Member is best explained by quoting in full the relevant part of his finding which reads as follows:
“As already indicated, I am satisfied that the material in question constitutes ‘private papers’ for the purposes of Article 15.10 because they directly relate to communications made by members of the public to members of Dáil Éireann in connection with their work as members of Dáil Éireann. A question may arise as to whether the power conferred on Dáil Éireann and Seanad Éireann and delegated to their respective committees merely extends to safeguarding the private papers of members within the confines of the Houses of the Oireachtas or alternatively is an enabling power whereby the committees may render the private papers of members immune from discovery and production by declaring them to be so (see Goodman v. Hamilton (No. 1) [1992] I.R. 542.
Counsel for the committees submits that the enabling power to protect the private papers of its members conferred on Dáil Éireann and Seanad Éireann which has been delegated to their respective committees, may be exercised by them by an assertion of that power. He submits that by instructing him to attend before the tribunal and to make submissions to the tribunal, the committees have validly exercised that power and that each committee, and accordingly the Oireachtas, has to exercise the constitutional power given to it to extend privilege to the material sought to be discovered in this application.
I am satisfied that the material in question, namely, the documentation which would be generated by the machinery of Eircom Limited, would disclose the number of the caller/recipient who were in contact with the respondents on the 25th June 2000 and subsequently, constitute ‘private papers’ for the purposes of Article 15 of the Constitution on the grounds that they directly relate to communications made by members of the public to members of Dáil Éireann in connection with their work as members of Dáil Éireann. Assuming that this material could by the proper exercise of a power conferred on the Oireachtas by Article 15.10 of the Constitution be designated privileged and rendered immune from an order for discovery, the issue remains, in my opinion whether the power has in fact been exercised.
I am satisfied that there was a lawful delegation of this power by Dáil Éireann and Seanad Éireann to their respective committees on procedure and privileges by the resolution of the 6th July, 2001. However, in my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the committee to that express intent. No such motion was ever passed. The only relevant motion was that to which reference has already been made. This does not contain a purported exercise of the power and merely authorises counsel to seek representation and to ‘make submission’ to the tribunal concerning the powers and privileges.
Accordingly, I am satisfied that while the power may be vested in the respective committees to extend privilege to the ‘private papers’ of members this power has not been exercised.
Accordingly, I am of the view that no case has been made out that privilege has been extended to the documents which are the subject matter of this application.”
“If upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.”
Finally, the Sole Member went on to endorse a view I had taken as a judge in the High Court in Goodman International v. Hamilton (No. 3) [1993] 3 I.R. 320. In that case I had adopted the view of the House of Lords in D. v. NSPCC [1978] AC 171 and in particular the views expressed in the speech of Lord Edmund-Davies that where there was a clash between the undoubted public interest in the admissibility in court of all relevant and admissible evidence and the public interest in a particular instance in the non-disclosure of some particular piece of such evidence the court had to embark on a balancing exercise so as to consider whether the public interest was in the end best served by disclosure or non-disclosure. In doing so, I was adopting a common law principle rather than invoking any particular provision of the Constitution. It is not entirely clear from the determination of the Sole Member as to whether he was likewise as an alternative taking on board common law principles or whether he was in some way intending to incorporate the balancing principle into any privilege which might exist under Article 15.10. Nothing turns on this question however in my view. What is important to note is that the Sole Member went on to make a contingent exercise of the discretion referred to by me and in so doing he said that he had no doubt whatever that it was preferable that information which was available to two responsible members of the Oireachtas from individuals believed by them to be reliable and which indicated gross misconduct amounting to criminal misconduct on the part of two assistant commissioners of An Garda Síochána and one detective sergeant should be made available for scrutiny and examination by the tribunal rather than that Deputy Howlin and Senator Higgins be allowed to maintain the confidentiality of their informants. He again noted that the information or evidence made available to the informant(s) might prove or tend to prove the innocence of individuals who had been wrongly convicted. He then expressed the view in no uncertain terms that it would be “entirely wrong” if such information or evidence could be withheld from the tribunal and that its truth could not be inquired into by him in carrying out his duties under the terms of reference.
I have summarised the findings of the Sole Member. Before I move on to what happened in the High Court, I should explain briefly the references to Senator Higgins and to the Seanad. Originally, the same issue arose with Senator Higgins as arose with Mr. Howlin. Subsequently, Senator Higgins’s informant gave him permission to disclose his source and as a consequence he no longer became involved in these proceedings. The equivalent Seanad committee had passed an identical resolution and had given identical instructions to the same counsel.
Leave to seek judicial review of the discovery order made by the Sole Member was granted in the High Court by O’Neill J. on the 24th March 2003. The reliefs permitted to be sought included certiorari in respect of the discovery order and a large number of declaratory orders reflecting the issues which had been argued before the Sole Member. By way of permitted amendment to the statement of grounds one of the issues raised in the judicial review was whether the Sole Member erred in law in holding that the innocence at stake exception had any application to a tribunal of inquiry and that he had at any rate erred in law in holding that disclosure of sources was necessary to vindicate the rights of members of the Garda Síochána and erred on the facts in relying on speculation and/or hearsay to outweigh the proved or admitted fact of the benefit to the public interest in preserving confidentiality of such sources.
I have already made clear that when the judicial review proceeding came on for hearing before Kearns J. he rejected the arguments of Mr. Howlin based on Article 15.13 for the reasons which I have already indicated. The learned judge, however, took a very different view from that taken by the Sole Member when he came to consider Article 15.10. He disagreed with the Sole Member that the assertion of the privilege by counsel instructed by the committees did not constitute the exercise of the power of the respective Houses to protect the private papers of their members. Kearns J. referred to the alleged requirement to pass a formal motion as suggested by the Sole Member as merely a “mechanical requirement” and the learned judge later referred to “a minor technical infirmity” in the wording of the motion of the 6th February, 2002. That motion passed in each House had been in the following terms:
“That the Committee on Procedure and Privileges of Dáil Éireann (Seanad Éireann):
- Noting Article 15 of the Constitution,
Noting the privilege enjoyed by members of Dáil Éireann (Seanad Éireann) in respect of information received from members of the public,
Noting the assertion of privilege made by Deputy Howlin (Senator Higgins) before the tribunal known as the Tribunal of Inquiry into Complaints concerning some gardaí of the Donegal Division,
The learned High Court judge held accordingly that the committee was lawfully exercising the power of the Dáil to protect the private papers of its members through a focused exercise of that power in relation to particular private papers of Mr. Howlin. Kearns J., however, went on to make the following important observation:
“Apart from his apparent assumption (at p. 13 of the ruling) that the valid exercise of the power contained in Article 15.10 of the Constitution would render the material immune from an order for discovery, the respondent did not further consider the nature or extent of the power created by Article 15.10. Instead he proceeded to justify the order for discovery by reference to principles of law covering privilege at common law…
The gravamen of the respondent’s ruling appears to me therefore, to be that even if incorrect in determining that the power under Article 15.10 had not been validly exercised, he was nonetheless entitled to treat any privilege created by Article 15.10 as a form of qualified privilege to be determined and measured by reference to common law principles.”
The American law was then considered by the learned High Court judge. He referred to the Speech or Debate Clause of the U.S. Constitution which provided that member of Congress should not be “questioned in any other place” for any “speech or debate” in either House. It was pointed out that in the case of Brown v. Williamson 62 S3d 408 (DC Cir 1995) where privileged documents belonging to a tobacco company were stolen from its lawyers offices and sent to two members of Congress who were members of a committee holding hearings relating to the tobacco industry. The sub poena was secured for the delivery to the company of the documents directed toward the two members of Congress but the Court of Appeals quashed the sub poena on the basis that enforcement would violate the Speech or Debate Clause. The learned trial judge quotes the following passage from the opinion of the U.S. Court of Appeals:
“We do not accept the proposition that the testimonial immunity of the Speech or Debate Clause only applies when members or their aides are personally questioned. Documentary evidence can certainly be as revealing as oral communications – even if only indirectly when, as here, the documents in question … do not detail specific Congressional actions. But indications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do – and this is true whether or not the documents are sought for the purpose of inquiring into of conduct or to advance some other goals …”
Kearns J. goes on then to refer to what he regarded as an intriguing submission and one which has been relied on in written and oral submissions in this court also. In his foreword to Kohn’s book “Constitution of the Irish Free State” 1932 the then Chief Justice of the Irish Free State, Chief Justice Hugh Kennedy referred to some sources resorted to in the drafting of the 1922 Constitution and that these sources included the Constitution of the Weimar Republic in Germany brought into being in 1919. The former Chief Justice described that Constitution as “a political tour de force framed to work in contemporary conditions”. The significance of this reference is that although Articles 15.12 and 15.13 have their antecedents in the Bill of Rights, 1688 and/or the Speech or Debate Clause of the U.S. Constitution no parallel could be found to match the provisions of Article 15.10 which, as I have already mentioned, are identical in their terms to Article 20 of the 1922 Constitution. Clutching at straws to some extent it has been submitted that the real antecedent may be contained in Article 38 of the Weimar Constitution which was set out in the judgment of the High Court and which reads as follows:
“The members of the Reichstag of the Land Diets are entitled to refuse to give evidence concerning persons who have entrusted them with information in their capacity as deputies or to whom they have given information in exercising their official functions, as well as concerning these facts themselves. In respect of the seizure of documents, they have the same status as persons who enjoy a legal right to refuse to give evidence.”
With no case law to assist in the interpretation of Article 15.10 and no evidence of how Article 20 of the 1922 Constitution came to be drafted in that way, it was reasonable that the trial judge should be influenced, as he apparently was, by the views of Professor Gwynn Morgan in his Constitutional Law of Ireland (1985) at pp. 166-167. Professor Gwynn Morgan did seem to consider that “private papers” of members within the meaning of the Article could be rendered constitutionally privileged as against third parties.
Decisions of the European Court of Human Rights were then considered by the trial judge. These included A v. United Kingdom (judgment of 17th December, 2002). In that case the Court of Human Rights held that the English rule of parliamentary immunity was not a disproportionate restriction on convention rights of access to court. The trial judge also referred to a decision of the European Commission on Human Rights in Young v. Ireland (17th January, 1996) but that case simply upheld the immunity attaching to utterances in parliament.
On foot of all these submissions the learned trial judge held that in relation to “private papers” of members the House and, therefore the committee by delegation had power to render them privileged without qualification and had done so in this case. After explaining why he arrived at that decision he summed it up as follows:
“Accordingly while the wording of Article 20 of the 1922 Constitution may well have been the somewhat imprecise outcome of an attempt to frame an express immunity drawn from the Weimar Constitution but availing of the terminology of U.K. Parliamentary practice, I am satisfied that the intent of the draftsmen was to expressly acknowledge the special status of the private papers of members and how they may be absolutely protected from production outside the House. Any strict interpretation must also however lead one to conclude that the privilege is that of the House, and not the individual member.”
The Sole Member has appealed the decision of the High Court to this court. The notice of appeal contains thirteen grounds. For all practical purposes they cover the issues debated in the High Court and referred to by me above.
A notice to vary has been served on behalf of Mr. Howlin. It is claimed in this notice to vary that contrary to the findings of the learned High Court judge:
1. Mr. Howlin is entitled to rely on the protection of Article 15.13 of the Constitution to assert a privilege.
2. That Mr. Howlin is entitled to assert privilege under Article 15.10 irrespective of any decision in that regard by Dáil Éireann or the Committee on Procedure and Privileges and/or is entitled to a privilege pursuant to Articles 15 and 16 of the Constitution by virtue of his status as a member of the National Parliament and/or a privilege at common law.
Having given a procedural history of this case and summaries of what was held at each stage and of what is not at issue before this court I intend now to address the issues of law on this appeal. I have already made it clear that I am satisfied that no privilege arises under Article 15.13. As far as alleged constitutional privilege is concerned I am of opinion that it could only arise under Article 15.10 and that is the issue which I am now considering. The absence of relevant case law is unfortunate. The fact that the wording is wholly different from the provision relied on in the Constitution of the Weimar Republic makes it very dubious and, indeed, in my opinion, speculative that any reliance should be placed on that provision. Nor does there appear to be much academic assistance apart from the notable exception of Professor Gwynn Morgan. Surprisingly, the recent report of the Constitution Review Group did not attempt any analysis of what Article 15.10 meant. It would seem probable that the committee decided to leave well alone, as no serious problems had arisen from the parliamentary privilege provisions, whatever they might mean and that interpretation was better left to the courts. Interestingly, however, Article 15.10 was interpreted by the earlier committee on the Constitution as reflected in their report of December 1967. I find myself impressed by what that report had to say in relation to this provision and I think it worthwhile citing the most relevant passages in full. Paragraph 35 sets out the text of Article 15.10. Paragraph 36 then reads as follows:
“The wording of this provision presents some difficulties and it is not easy to determine from it the nature of the powers with which it was intended to endow the Oireachtas. It will be observed first of all, that it says nothing about the non-application of other provisions of the Constitution in relation to the matters at issue. In the absence of such an exclusion clause, it must be assumed that other provisions of the Constitution such as Articles 34, 37, 38 and 40 are not brushed aside as they are, for example, in the case of Article 28.3.3. It they continue to operate with full force, then it necessarily follows that the powers of the Houses are not at all as wide as those of some other Parliaments such as the British. It will be noted, furthermore, that the powers given by Article 15.10 to impose penalties extend only to the rules and standing orders of each House, and there seems to be no power to punish offenders for the other matters dealt with by the section, such as the protection of each House and its members against interference, molestation and attempts to corrupt. If the Houses of the Oireachtas were intended to have penalty powers in relation to these matters, it would have been a very simple matter to draft the section on a different basis…”
- “Our Parliament can operate only within the confines laid down in the present Constitution, which was intended to provide the charter for all aspects of public affairs in this country. That Constitution has been very careful to outline detailed provisions about the court system to be established, the procedure for the trial of offences and the fundamental rights of the citizens, including the right to personal liberty and to freedom of expression. If it had been the intention from the beginning that the powers enjoyed by the Oireachtas were not to be restricted by any safeguards of this kind, there would surely have been a great deal more comment about the nature and effect of Parliamentary Privilege than has heretofore been the case. As already indicated, the wording of Article 15.10 itself suggests that this was not the intention.”
- “We have, therefore, come to the conclusion that Article 15.10 ought to be regarded as empowering the Houses of the Oireachtas to deal with internal matters of procedure and discipline only, and to punish its own members for breaches of its rules; it should, of course also be open to each House to withdraw any privileges from any such persons as transgress any regulations of the House. In addition each House should have power to deal effectively with persons who endeavour to disrupt its proceedings. All other offences against Parliament and its members should in our view be dealt with by a special Act of the Oireachtas on the same lines as the legislation passed by other countries. If so desired, the Chairman of each House could be empowered to make complaints to the Attorney General requesting that particular matters be investigated with a view to prosecutions. If any amendment of Article 15.10 is required to enable these matters to be dealt with in this way, then we recommend that the change should be made.”
Still less of course is there anything in Article 15.10 to suggest a self-executing privilege, a point which now arises out of the notice to vary. The most that can be said is that Article 15.10 does seem to assume that independently of the terms of paragraph 10 itself the freedom of debate, the protection of official documents and the protection of private papers of members were all natural to the efficiency and efficacy of a house of parliament. The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them. The members of Dáil Éireann might have a quite different idea about how to protect the “private papers” of members than would appeal to the members of Seanad Éireann and indeed there might be good objective reasons for a different approach. Effectively, paragraph 10 is allowing each House to make its own laws in this connection. Under the ordinary law of the land, of course, either House could protect itself against trespassers or against persons trying to corrupt its members. One could envisage situations however where one member of the House might attempt to corrupt another member or where one member of a House might steal the private papers of another member or where such activities could be carried out by staff of the House. It might be desirable and indeed almost certainly would be desirable to have special provisions relating to security. Each House would have the power to deal with these matters under Article 15.10 but I fail to see that it can be read into the terms of paragraph 10 that either House could plead documentary privilege in stranger proceedings in a court or as against a public tribunal. I would, therefore, reject the “self-executing” argument.
I turn now to the question of why I consider that the powers of the Dáil under Article 15.10 were not exercised in a relevant manner in this case. If the only defect was one of wording in the motion as seemed to be suggested by the Sole Member then I would be in agreement with the learned High Court judge that that could be overlooked as being merely a technical defect and that in substance and in reality privilege was being claimed on the authority of the Committee by the counsel appearing. But I do not take that view. As far as I can make out from the transcript it is the Sole Member himself who introduced the concept of the formal motion. That does not seem to have been suggested by the tribunal’s own counsel, Mr. McDermott, when opening the matter before the tribunal. Mr. McDermott at p. 31 of the internal pagination of the transcript for the proceedings before the tribunal on Tuesday, February 18th 2003 is quoted as saying the following.
“Now, there would appear, Sir, not to be any provision made by the Houses of the Oireachtas in respect of the protection of the private papers of their members. There is no legal precedent apart less to say legal authority submitted in relation to the claim made by Deputy Howlin in this matter. In respect of the powers of the Houses of the Oireachtas to protect papers, one could look into the history and perhaps examine the historical origins of Article 15(10) and go back to the Bill of Rights in which the proceedings of Parliament were to be protected back in 1689, if memory serves me correctly. In essence, what were confined … is necessary to consider here are the simple provisions in respect of an enabling power which the people have conferred on the Houses of the Oireachtas. The Houses of the Oireachtas are given the authority to enact whether through standing orders or they could do it by legislative provisions in respect of the private papers of their members. They have not done so.”
“The protection to be afforded it is envisaged is one which would be protection conferred by law to be dealt with, in my respectful submission, by the Houses of the Oireachtas, by statute or standing orders. This has not been done. Simply to state or claim that private papers of members of the Dáil or Seanad must have an absolute privilege would lead to somewhat peculiar circumstances…”
Given the overall view which I have taken on the meaning of Article 15.10 it does not seem necessary for me to review the English, American and European Court of Rights case law referred to in the High Court and this court and the nature of which I have already outlined. Even if I am wrong in the approach which I have adopted it would seem to me to be self-evident from the respective sets of facts involved in all of those cases that none of them are really of any assistance in determining the issues in this case.
It is appropriate that at this stage I explain why I reject as relevant the two specific submissions made by Mr. Clarke on behalf of the Committee which I refer to in the judgment of the learned High Court judge. I cannot agree that Article 15.10 had the effect of rendering papers of members of either House “private”. In my opinion, the wording of the Article simply assumes that it would be accepted that there was such a thing as “private papers of members” and that there would be a general understanding of what that meant and what it encompassed. On the general interpretation of the Article the serious question of what exactly is meant by “private papers of members” may have to be considered in a future case but in this particular case it was accepted by the tribunal that the papers including the telephone records fell within that category and I do not think that attempts to reopen that issue in the High Court or in this court are legitimate. At any rate the view that the Sole Member took on this matter could not, in my view, be impeached as being in any way irrational.
Mr. Clarke also referred to the exclusion of the private papers from the ambit of the Freedom of Information Act, 1997. The terms of an Act passed sixty years after Bunreacht na hÉireann and seventy-five years after the enactment of the Constitution of the Irish Free State could not possibly be availed of to assist interpretation of Article 13.10.
It follows from the views which I have expressed that the only kind of privilege which could conceivably have been pleaded by Mr. Howlin was the so called common law privilege. This, of course, is a misnomer because it is not “privilege” in the strict sense. Rather it is a question of public interest immunity. I have had the benefit of reading in draft the judgment of Hardiman J. and I am in complete agreement with him that the Sole Member has in fact already carried out the balancing exercise which would be involved in relation to public interest immunity and that the view which the Sole Member took on it is unassailable. I am also very much in agreement with Hardiman J. that the “innocence at stake” principle does in fact apply for the reasons which he has given.
The learned High Court judge did not deal with the common law issue but there does not seem to me to be any necessity whatsoever to refer the case back to the High Court so that the common law issue be dealt with there. It is always a matter of discretion for this court as to whether that course is taken or not. Obviously, if there were some facts which had to be found it would be essential. I am satisfied that the issues have been sufficiently aired in this court to entitle us to consider and determine the common law issue.
I would, therefore, allow the appeal and restore the order for discovery made by the tribunal. I would also dismiss the cross-appeals contained in the notice to vary.
Howlin v. Morris Tribunal
JUDGMENT of Mr. Justice Hardiman delivered on the 20th day of December, 2005.
This is the appeal of the respondent against the judgment and order of the High Court (Kearns J.) perfected the 2nd day of March, 2004, whereby that Court granted certiorari quashing an order of the respondent of the 28th day of February, 2003. This order had directed the applicant and the first-named Notice Party to make discovery of and produce the records and documentation referred to therein. In his notice of appeal dated the 23rd March, 2004, the respondent challenged specifically the finding that the applicant was entitled to invoke, and had invoked, Article 15.10 of the Constitution as a ground for resisting the respondent’s order. By notice to vary dated the 26th March, 2004, the applicant broadened the scope of the issues on this appeal. He sought to invoke, in addition to Article 15.10, Article 15.13 of the Constitution to the same intent, and challenged the learned trial judge’s findings in that regard. Furthermore, he challenges the finding of the learned trial judge “that the privilege conferred by Article 15.10 is a privilege of the House rather than [of] an individual member”. The applicant further claims that he is entitled, apart from Article 15.10, to a privilege against an order such as the respondent’s by reason of his status as a member of the National Parliament, pursuant to Articles 15 and 16 of the Constitution. The applicant furthermore claims that Article 15.10 is a self executing provision and that the learned trial judge should have so found. Finally, he claims that, apart from the Constitution, he is entitled to a common law privilege in the circumstances of this case, purely in his capacity as a deputy.
Background.
The Parties.
The applicant is a long standing member of Dáil Eireann representing the constituency of Wexford. The respondent is the sole member of the Tribunal named in the title and has since June 2002 been conducting an inquiry into allegations of a very grave kind involving certain gardaí currently or formerly attached to the Donegal division. Eircom Ltd. has only an incidental role in the matters about to be discussed and was permitted to withdraw from the hearing of this appeal on the basis that it will, of course, comply with any valid order for discovery or production of documents.
The Committee on Procedures and Privileges of Dáil Eireann is a committee of the House to whom, by resolution of the 6th July, 2001, the power of the House contained in Article 15.10 of the Constitution was delegated. No issue was taken with the validity of that delegation.
The Tribunal.
- “serious public concern about allegations that members of the Garda Síochána in the Donegal Division engaged in unethical and criminal behaviour…”;
and went on to note the report of Mr. Shane Murphy S.C. in which he expressed the opinion that a Tribunal of Inquiry
- “represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance…”
It went on to resolve that it was expedient to establish a tribunal to inquire urgently into “the following definite matters of urgent public importance”.
The specific matters then set out in the resolution are mirrored in the terms of reference of the Tribunal contained in the instrument of the Minister referred to above. They refer to such well known and profoundly serious matters as the death of Mr. Richie Barron and the arrest and treatment of persons in custody in connection with that investigation, the alleged harassment of the McBrearty family and their associates, and went on to refer specifically at sub-paragraph (h) to:
- “Allegations contained in documents received by Deputy Jim Higgins on the 25th June, 2000, and information received by Deputy Brendan Howlin on the 25th June, 2000 that two senior members of An Garda Síochána may have acted with impropriety”.
The information.
On the 25th June, 2000, a Sunday, Mr. Howlin and another public representative, Mr. Higgins, received information, both in oral and in documentary form, purporting to represent confidential information from a serving Garda relating to the investigation under Assistant Commissioner Carty. The documentary version is attached to this judgment as Appendix 1. The substance of this information was to the effect that the investigation might be compromised because of prior dealings between one of the members said to be under investigation and two Assistant Commissioners of An Garda Síochána, including the gentleman who was conducting the inquiry. The prior dealings alleged were quite remote in time and of a disreputable nature. These allegations were indeed (as Mr. Howlin himself was to say several times later on) of a startling nature especially given that the investigation being conducted by Assistant Commissioner Carty related to allegations that were, again to quote Mr. Howlin, “… some of the most serious ever made about public servants in the State…”.
On the following day Deputy Howlin and Deputy Higgins met the then Minister for Justice, to whom they repeated these allegations. As a result of this, Deputy Howlin was interviewed by senior gardaí, including another Assistant Commissioner, on the 1st July, 2000. To these officers he indicated that his immediate source was a person whom he trusted and who had been a source of information to him previously in relation to the McBrearty matter. Behind this source was another, the serving member of An Garda Síochána who was providing the information to the immediate source. He refused to identify either source. He undertook to get back to his source and subsequently told the Gardaí that his informant was not willing to have his name given to the Gardái; that the garda source “will give evidence in court”; and that they should interview five named members of An Garda Síochána, ranging in rank from Garda to Chief Superintendent.
Deputy Howlin made it perfectly clear at all times that he personally had no evidence or information to substantiate the claims made by his informant. In addition to the principal immediate concern – alleged compromise of the Carty investigation – the material which Deputy drew to the attention of the Minister and the Gardaí included concerns that every case in which a named Detective Sergeant had been involved “needs rechecking”; that “a large number of convictions were achieved by ‘planting’ evidence”: that the named Detective Sergeant had a considerable quantity of stolen property available to him for that purpose; and that the same Sergeant had been rewarded for his unlawful activities by being permitted to claim overtime and expenses which were not warranted. It was alleged to be the complicity of very senior officers in this conduct which permitted the Sergeant (allegedly) to frustrate the Carty Inquiry. It was further alleged that the Sergeant had a long written record of his own activities while stationed in Dublin which “is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation”.
Nature of these allegations.
In light of this, it is clear that Deputy Howlin was acting very properly in bringing the information which he had to the attention of the Minister and that the latter acted very properly in setting in motion the Inquiry in the course of which Deputy Howlin was interviewed on the 1st July, 2000. It is quite clear that this Inquiry faced considerable difficulties because those conducting it were unaware of the identity of the apparently well placed source who had made the allegations. It does not appear to have made progress in the investigation. Other modes of inquiry were considered by the Authorities who apart from other considerations had to bear in mind the risk of prejudice to then pending criminal proceedings. From the documents before the Court it appears that the papers held by the Garda Síochána, the Garda Complaints Board and other bodies were examined on behalf of the Authorities by Mr. Shane Murphy S.C. who reported along the lines summarised in the recitals to the resolution passed by Dáil Eireann in March, 2002. It will be immediately clear that the use in this resolution of very strong language such as “serious public concern about allegations that members of the Garda Síochána in the Donegal Division engaged in unethical and criminal behaviour”, so that these allegations constitute “outstanding issues of fundamental public importance” and that the matters listed at subparagraphs (a) (j) of the resolution being “definite matters of urgent public importance” are amply justified. That these phrases are intended to apply, inter alia, to the information communicated by Deputy Howlin appears clear from the terms of paragraph (h) of the resolution: the Houses of the Oireachtas specifically required that the allegations communicated by Deputy Howlin be investigated.
Actions of the Tribunal.
On the 15th June, 2002, the Tribunal, as is now normal practice, sat in public and gave a detailed explanation of the terms of reference which governed its Inquiry, and which are set out in the Resolution of Dáil Eireann and the Instrument of the Minister. In relation to subparagraph (h) the Tribunal indicated that it would approach this area of its work in the following way:“(a) Enquire into this matter generally, and in as far as possible ascertain the basic facts;
(b) Fully investigate each of the allegations contained in the document to ascertain whether there is any foundation for same;
(c) Consider the investigations carried out to date in relation to the matter and generally consider whether these allegations were scrutinised with the seriousness which they merit…
(d) Attempt to ascertain if the author of the facts had any information which would justify the allegations contained therein: in this regard it would be necessary to ascertain the identity of this person and seek his or her assistance for the work of the Tribunal…”,
(e) Attempt to ascertain the motive for sending this fax, if that is relevant”.
This matter and others were then the subject of preliminary investigations by the Tribunal and lawyers and investigators appointed by it. These investigations enabled the making, in November, 2002, of a Preliminary Opening Statement. In the course of this, and referring to subparagraph (h) of the terms of the reference Counsel for the Tribunal said the following:
- “On the 29th June, 2000, the Garda Commissioner directed Assistant Commissioner Fachtna Murphy to investigate this matter… our own investigators… have also conducted inquiries… nothing has been uncovered as a result of the investigations of this Tribunal or on perusal of the documents and statements gathered by the Murphy investigation which provides any support for the allegations contained in the document, much less corroboration… it does not seem unreasonable to take the view that if this is inquiry is going to be thorough it should attempt to ascertain the source of the information in order to learn from him or her at first hand either what material may be available to support the allegations; or with a view to establishing that the allegations are made without a basis of support in fact, for whatever reason. The Murphy investigation team took a similar view. Your investigators, Sir, also believe it is essential to interview this person to attempt to find out what he or she knows”.
The 10th February, 2003, was fixed for a public hearing of the Tribunal at which counsel on behalf of the Oireachtas applied for and were granted limited representation before the Tribunal in relation to the making of the proposed discovery orders. Deputy Howlin was also present. Both of these parties made written and oral representations, as did counsel for the Tribunal.
Parliamentary background.
On the 6th July, 2001, Dáil Eireann passed the following resolution:- “That, whereas Article 15.10 of the Constitution provides that each House of the Oireachtas shall have power to protect its official documents and the private papers of its members, Dáil Eireann resolves that the said powers hereby conferred upon the Committee on Procedure and Privileges and may be exercised by that Committee on behalf of Dáil Eireann”.
- “That the Committee on Procedure and Privileges of Dáil Eireann:
Noting Article 15 of the Constitution
Noting the privilege enjoyed by members of Dáil Eireann in respect of information received from members of the public,
Noting the assertion of privilege being made by Deputy Howlin before the Tribunal known as the Tribunal of Inquiry into complaints concerning some gardái of the Donegal Division,
hereby authorises the Parliamentary Legal Adviser to instruct on behalf of Dáil Eireann counsel to apply for representation at the Tribunal, and if granted representation, to make submissions to the Tribunal concerning the powers and privileges of Dáil Eireann and its members”.
Determination of the Tribunal.
On the 28th February, 2003, the sole member of the Tribunal delivered his determination on the discovery issue insofar as it affected Deputy Howlin. This was a relatively lengthy determination which is unnecessary to set out here: it ended in the making of the order which the applicant has sought on judicial review. In the course of the determination, however, the respondent made certain observations about the allegations communicated through Deputy Howlin as follows:“(3) The allegations made, if correct, mean that a number of persons
have been wrongfully imprisoned because of convictions which were unlawfully obtained by means of “planted” evidence and perhaps perjury,
(4) The allegations purport to implicate two Assistant Commissioners and a Detective Sergeant in the commission of serious criminal offences including multiple conspiracies to pervert the course of justice.
(5) If the allegations are substantiated a number of persons wrongfully convicted may be afforded the opportunity to have miscarriages of justice acknowledged and, if still imprisoned, would be afforded an opportunity of release”.
The Tribunal also made certain findings of fact relevant to the present issues:
“(3) Insofar as it has been possible to enquire into any of the facts contained in the allegations imparted to… Deputy Howlin, these inquiries have not established any factual basis for the allegations. However, these inquiries are not sufficiently exhaustive to satisfy the Tribunal that it is in possession of all relevant information or evidence concerning these allegations. It is necessary, in order to complete the investigative stage of the Tribunal’s work in this regard, to discover such information or evidence (if any) as is in the possession of the informants or those who conveyed information to the informants that could or would substantiate or tend to substantiate the allegations made, or not as the case may be.
(4) Despite comprehensive efforts including a number of false trails, it has proved impossible for the Tribunal to trace the identity of [Deputy Howlin’s] informant or informants…”.
(5) The work of Tribunal has been gravely hampered by reason of the inability of the Tribunal to establish the identity of the informants and those supplying the informants with the relevant information or evidence.
(7) I am satisfied that discovery is necessary in order to carry out the work of the Tribunal.
The Tribunal went on to consider legal issues which are substantially the same as those agitated on the present appeal.
The Order.
The Order of the learned respondent is set out in Appendix II.
The proceedings:
By order dated the 24th March, 2003, the High Court (O’Neill J.) gave leave to the applicant to seek to quash the respondent’s discovery order. The relevant grounds on which this leave was granted have been set out in the judgment of the learned trial judge. The judicial review proceedings were heard before the learned trial judge who delivered a written judgment on the 13th October, 2003. It is to be noted that the judgment proceeded on the basis that the records of which discovery were sought were indeed “private papers” within the meaning of Article 15.10 of the Constitution. The learned respondent had held that the papers were in this category but in written submissions to the High Court counsel for the Tribunal had sought to challenge this proposition. The learned trial judge did not permit this change of front and I am satisfied that he was correct in this ruling. This judgment therefore proceeds on the basis that the relevant documents are indeed “private papers” within the meaning of Article 15.10, though (necessarily) without so holding. I also agree with the learned trial judge’s finding that the respondent’s determination that no “utterances” were made in Dáil Eireann in respect of which it is now sought to make the applicant “amenable” to the Tribunal is not now in issue, for the reasons given by the learned trial judge.
The first issue.
On the hearing of this appeal, a significant difference arose in the submissions on behalf of Deputy Howlin on the one hand, and those advanced on behalf of the Committee on Procedure and Privileges on the other. This is as to whether the privilege or immunity conferred by Article 15.10 of the Constitution, or by the exercise of powers granted there, is the privilege or immunity of an individual deputy or of Dáil Eireann itself. Deputy Howlin contended for the former proposition and the Committee for the latter. The learned trial judge had held that the privilege “is that of the House, and not of the individual member”. The respondent had proceeded on the same basis.I propose to resolve this issue first, as its resolution will affect other issues.
Article 15.10 of the Constitution provides as follows:
- “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”.
- “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.
13. The members of each House of the Oireachtas shall, excepting case of treason as defined in this Constitution, felony 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”.
The construction of Article 15.10 is not an easy or a straightforward task. The Article as a whole is entitled “The National Parliament Constitution and Powers”. Article 15.7 to 15.11 correspond closely with, indeed substantially reproduce, corresponding provisions of the 1922 Constitution, Article 20 of which is virtually identical with the sub-Article now under discussion. In Maguire v. Ardagh [2002] IR 385 at 536/7, Keane C.J. set out the texts of Article 15.10, Article 15.12 and Article 15.13 and observed:
- “These extensive immunities and privileges, denied to citizens who are not members of the Houses of the Oireachtas, are an important feature of the parliamentary democracy established under the Constitution. Neither these provisions, however, or any other provision of the Constitution expressly exempt from scrutiny by the Courts the actions of the Oireachtas or its individual members save to the extent specified in Articles 15.12 and 13”.
- “The wording of this provision presents some difficulties and it is not easy to determine from it the nature of the powers with which it was intended to endow the Oireachtas.
In argument in the present case, counsel for the applicant contended for the proposition that the sub-Article gave concrete expression to “what’s inherent or implicit in our system of government”. It provided this protection for the individual deputy. “He does not need to invoke the protection of the House”.
Counsel for the Committee, who in this respect only was at variance with the applicant’s view, conceded that the words of Article 15.10 “may not be of absolute clarity”, on the same point.
Finally, there is no judicial authority on this topic apart of course from the judgment of the High Court under appeal. The learned trial judge, adopting what he described as strict interpretation of Article 15.10 concluded that “the privilege is that of the House, and not of the individual member”.
There is however important authority relating to the privilege conferred by Article 15.12 and 15.13. In Attorney General v. Hamilton (No. 2) [1993] 3 IR 227, which arose out of certain developments before the Beef Tribunal, the Courts were concerned with whether a deputy was privileged from identifying the source of information which is repeated by the deputy in Dáil Eireann. A specific question arose as to whether the protection contained in Articles 15.12 and 15.13 extended to material contained in written statements to a Tribunal of Inquiry, which were by way of elaboration of utterances in the House. One of the submissions made on behalf of the Deputies (who were notice parties in that case) was for an “extended” interpretation of Article 15.13 so as to include statements made to the Tribunal. Addressing this, Finlay C.J. said:
- “With regard to the claim made for an extended interpretation of Article 15.13 so as to include statements made to this Tribunal, having regard to its origin derived in part from the resolutions of the Houses of the Oireachtas, I am satisfied that it is not a submission which can be accepted. The provisions of Article 15.12 and Article 15.13 of the Constitution are explicit and definite in their terms, though the application of them may be a matter of complexity in certain instances. They constitute a very far reaching privilege indeed to members of the Houses of the Oireachtas with regard to utterances made by them in those Houses. They represent an absolute privilege and one which it is clear may in many instances represent a major invasion of personal rights of the individual, particularly with regard to his or her good name and property rights. In addition, this immunity and this privilege constitutes a significant restriction on the important public right associated with the administration of justice of the maximum availability of all relevant evidence, a right which has been particularly emphasised in the decisions of this Court…”.
For analogous reasons, principally the interference which the immunity represents to the rights of individual third parties and to the public right to have very grave allegations about members of the Garda Síochána, the police force of the State, properly and transparently investigated, I believe that it is right to adopt a strict construction of the immunity contained in Article 15.10. The subject matter of this sub-Article, and of sub-Articles 12 and 13, are sufficiently similar to make the analogy a useful one. They are not, however, at all identical, as will appear below, and an analysis of sub-Articles 12 and 13 is by no means interchangeable with that offered below of sub-Article 10. But there is the essential common feature of a privilege or immunity extending only to parliamentarians and which may impact on the rights of other citizens or those of the public generally.
Insofar as this analysis is based at least in part on the rights of third parties, it is relevant to consider the applicant’s submission that, in the circumstances of the present case “there are no third parties involved”.
I cannot agree with this proposition. Subparagraph (h) of the Dáil Resolution and of the Terms of Reference explicitly requires inquiry into material which consists of allegations by one (anonymous) third party against three named third parties: I use the term “third party” to mean persons outside the Oireachtas and unconnected with the Tribunal. It is manifest that these allegations touch on the good name and indeed the livelihood of such parties.
The case of Melton Enterprises Limited v. Censorship of Publications Board & Ors. (Supreme Court unreported 4th November, 2003), was relied upon to support the contrary proposition. But the facts of that case gave rise to quite different legal considerations. There, the Censorship of Publications Board had to determine whether in the “subjective determination of the individual members of the Board” a particular publication was indecent or obscene. In that situation it was held that the identity of the person who had drawn the publication to the Board’s attention was irrelevant to the discharge of the function and need not be disclosed. The judgment of Keane C.J., however, at pages 3/4, discussed in some detail the circumstances in which such information would be relevant. Keane C.J. continued:
- “There is however one feature present in all those decisions which is conspicuously absent from the present case. In each instance, the relevant tribunal was involved in the ascertainment of objective facts on the basis of which it would then arrive at its adjudication or, in the case of Re Haughey, submit its conclusions to the Oireachtas in the form of a report. In total contrast, the Board in this case is not engaged in an inquiry which if properly conducted would result in impartial and objective findings of fact. It is concerned with the wholly subjective process of the determining whether, in the opinion of at least three of its members, the recently published issues of the Weekend Sport have usually or frequently been indecent or obscene…”.
I therefore believe it appropriate to adopt what the learned trial judge called a “strict” and what Finlay C.J. called a “narrower and less liberal” approach to the construction of Article 15.10 in the circumstances of this case. I am not unaware of the dicta of this Court favouring, in certain circumstances, a broader or purposive approach to construction in certain circumstances. I find myself in agreement with what is said at page 4 of the introduction to Kelly The Irish Constitution, 4th Edition:
- “The literal approach is perhaps most appropriate in relation to the more technical provisions of the Constitution, as distinct from those provisions relating to fundamental rights and public policy.”
The enabling power arising from Article 15.10 is different in kind from the privileges or immunities contained in Article 15.12 or 13. These sub-Articles respectively themselves confer privilege on utterances in either House, a privilege from arrest and an immunity from amenability to any authority other than the House itself in respect of any utterance in either House. They are, clearly, fully effective in and of themselves or “self executing” to use a phrase which featured in argument. Moreover, the privileges and immunity which they confer are conferred on the members and attach to each of them individually. This is clear from the plain and unambiguous words of the sub-Article themselves.
By contrast, the power declared or conferred by sub-Article 10 is clearly and in terms, that of the House and not of the individual member. Indeed, it appears from the terms of the Resolution of 6th July, 2001, that this is the view of Dáil Eireann itself. It is certainly the ordinary and natural meaning of the words of the sub-Article.
In contending for the contrary view, counsel for the applicant was constrained to argue that a deputy could by his own act confer immunity on himself from an otherwise lawful demand for his private papers and could even do so against the unanimous consensus of his colleagues. This appears to me to sit ill with the sub-Article the whole of which is concerned with the obligations (in relation to standing orders) and powers of the House.
The applicant also adopted the view of Professor Gwynn Morgan, expressed in his Constitutional Law of Ireland (1985) that:
- “… each House has the power to protect its official documents and the private papers of its members… this would probably enable the Oireachtas to resist the normal police powers of search or a court order in respect of documents and papers”.
More significant however, for present purposes is that, in order to avoid the repellent prospect of a member being able to conceal evidence of his own malfeasance by his own individual and (it is said) unreviewable act of invoking privilege, it was contended and held in the High Court that the protection envisaged in Article 15.10 for private papers did not extend to papers which evidenced a Deputy’s malfeasance. Counsel said “Malfeasance by a deputy is not embraced by Article 15.10”. This point was made with considerable emphasis at the very start of the substantive submissions. The Article itself, of course, does not expressly provide for a malfeasance exception at all: it was posited by the applicant in order to avoid a more difficult proposition. If the exception exists it can only be accounted for as an application of an ex turpe rule, grounded on public policy. The existence of a malfeasance exception, however, was not disputed by any party to these proceedings.
But to posit an exception on that basis makes it very difficult to maintain that the privilege is that of the Deputy himself, capable of being exercised so as to immunise himself from a lawful search warrant or other process even against the unanimous consensus of his colleagues. Once there is conceded to be an exception, grounded on malfeasance, to the otherwise general terms of the absolute privilege for which the applicant contends, it becomes necessary to address the question as to who is to decide whether the malfeasance exception applies, and on what basis. Is a mere allegation, or a reasonable suspicion, or the demonstrated fact of malfeasance required to displace the privilege? But still more fundamentally, it appears absolutely essential that the decision as to whether the privilege has been displaced be taken by someone other than the Deputy himself, for he or she is the person in relation to whom malfeasance is alleged, or suspected, or proved. And this, of course, is much more consistent with the power to invoke a privilege or immunity being that of the House (or, by delegation, the Committee) than with the Deputy having the power to immunise himself.
The applicant’s answer to this difficulty was to nominate a Court as the body which would decide on the applicability or scope of the immunity, in the context of malfeasance. This submission seemed to me a surprising one since Article 15 of the Constitution is entitled:
- “The National Parliament
Constitution and Powers”.
- “Different considerations apply however, where, as here, the Oireachtas purports to establish a committee empowered to enquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not members of either House. An examination by the Courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in anyway qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs”.
It therefore seems to me that a decision on whether to grant immunity from otherwise lawful disclosure in respect of what are claimed to be the private papers of a member, or to refrain from doing so, is that of Dáil Eireann itself or its lawful delegate. If such decision does not affect the rights of anyone who is not a member of Dáil Eireann, that decision appears to be final and unreviewable. Furthermore, the decision is one for the exercise of the discretion of the House. The view of the individual deputy involved does not bind the House. Furthermore, there is no warrant in the terms of Article 15 for withholding disclosure only on the basis of misfeasance (actual or suspected) by a deputy. The decision of the House or its delegate must be on the basis of a much broader discretion where all relevant matters including the purpose for which the demand for disclosure is made, the identity of the body or person seeking disclosure, the importance of the matter in connection with which disclosure is sought and the public interest generally, are considered.
It thus appears to me that both a literal construction of Article 15.10, or a purposive construction which accommodates the exclusion from the privilege of documents evidencing malfeasance alike, lead to the conclusion that the power to protect the private papers of members resides in the House or its delegate, and not in the individual deputy.
This is a significant conclusion for the balance of the issues raised on the appeal. If the power to protect the Deputy’s papers (which are telephone records) from discovery and production pursuant to the respondent’s order is that of the Committee, the next question that arises is whether or not the Committee has duly exercised that power in the present case.
The actions of the Committee.
On the 6th February, 2002, the Committee passed the resolution which is set out earlier in this judgment. On foot of this, the Parliamentary Legal Adviser instructed counsel who subsequently placed oral and written submissions before the respondent. There is no evidence that the Committee took any other step, or arrived at any other decision, in relation to the papers discovery of which was sought.
In my view, it follows from the finding already made that the effect of Article 15.10 was to empower the Committee to protect the papers sought, that the protection must be brought into being (or triggered, to use a word deployed in the submissions), by some express act on the part of the Committee. When a legal or constitutional function or capacity is conferred on a person or entity by empowering or permissive words, it seems to me to follow that the power in question may or may not be exercised: the donee of the power may choose whether to exercise it or not. That was the view both of the respondent and of the Committee: Mr. Howlin, consistent with his fundamental submission that the power was his and no-one else’s, took the view that no action whatever on the Committee’s part was necessary and that, in passing the resolution, they had acted unnecessarily.
Alternatively he said that if, contrary to this basic submission, some action on the part of the Committee was required, then the power can be invoked in any way at all: there is no requirement that it be exercised only by motion or resolution. In this analysis, the resolution actually passed was mere happenstance: according to Deputy Howlin’s written submissions:
- “As it happens, the Committee… passed a motion on the 6th February, 2003…” (Emphasis added)
In support of this submission Mr. Hogan S.C. for Deputy Howlin sought an analogy by looking to what would happen if a group of trespassers invaded the Dáil Chamber and frustrated the freedom of debate. He invited the Court then to suppose that the trespassers were ejected by the staff of the Oireachtas by force, leading to an action against the staff for assault and false imprisonment. “Could it possibly be said that the members of staff in question [could] not rely on Article 15.10, even if no formal motion or resolution [had been] passed directing them to take such action?”
I regret that I cannot see any analogy whatever between what is at issue here and the facts hypothesised. There can be no doubt that Dáil Eireann, its servants and agents, enjoys the right of every proprietor and tenant to expel trespassers from their premises. It seems to me both over elaborate and quite unnecessary to seek a constitutional source for that power which does not require any root in the Constitution at all. Still more fundamentally, the present case concerns a power to protect private papers. If the danger from which the papers required to be protected was that of theft by main force, again no constitutional root would be required for the obvious and immemorial power to protect one’s own property. Neither of these situations in my view have the smallest analogy with the serious matter at issue here: whether, to what extent and how Dáil Eireann may protect its members’ private papers from a lawful demand for production by a Tribunal of Inquiry which is itself the instrument chosen by the Oireachtas to enquire into matters of urgent and fundamental public importance. The Tribunal has of course proceeded openly and in accordance with law in a manner which make analogies with the deployment of unlawful force quite inapposite.
It seems to me to be clear from the wording of Article 15.10 itself that the protection against a prima facie lawful demand for production must be by positive and specific decision of the Committee. To adapt the words of the learned trial judge “… the House may render the private papers of members immune from discovery in production elsewhere by declaring them to be so”.
Such a declaration must also be explicit and specific as to the papers to which the protection is extended. I would entirely reject any submission that the conferring of a privilege or immunity from a disclosure which is lawfully demanded can be inferred or deduced from other actions. To put this another way, I believe that the conferring of protection, and the extent of that protection, by the Committee must be clear to demonstration from a perusal of the official record of the Committee’s actions. This is so, I believe, for precisely the same reasons which led to the conclusion that the privileges conferred by Article 15.12 and 13 must be strictly construed. This is a power to protect private papers from the otherwise lawful scrutiny of a Tribunal of Inquiry in whose establishment Dáil Eireann itself and Deputy Howlin himself participated. Moreover, it is proposed to withhold these papers in circumstances where their disclosure may be important to individuals attempting to vindicate their good name. I am not saying that the Committee cannot protect these papers despite the manifestly strong and legitimate demand for their disclosure: I am saying that if it does so it must be perfectly clear that it has invoked the power to protect against a specific demand for disclosure whose significance it has considered, and it must be equally clear to what specific papers the protection applies.
The Resolution.
Turning to consider the resolution in light of the analysis above, I cannot regard it as a proper or valid exercise of the Article 15.10 power. This important constitutional power, to invoke a protection which is not available to any citizen other than a member of the Oireachtas, cannot in my view be exercised except in absolutely express terms. I agree with what the respondent said in his ruling on this aspect:- “… In my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the Committee to that express intent”.
This seems quite consistent with what was said by Geoghegan J. in Maguire v. Ardagh [2002] 1 IR 419 at 736:
- “While it is true that out of respect for the separation of powers the Courts will not interfere with the internal operations of the orders and rules of the Houses in respect of their own members, the non-justiciability principle stops there. If there is some essential procedural step which a House of the Oireachtas or a committee thereof has to take before the rights of an outsider, that is to say a non-member of the House can be affected, then at the suit of that outsider the Courts can give relief if that essential step is not taken”.
If this important constitutional power is to be exercised it must be exercised by the body on whom it is conferred, Dáil Eireann, or its undisputedly lawful delegate, the Committee. It cannot be derived from the actions of one or other of these Bodies plus those of counsel instructed with, to judge by the motion, a wholly neutral remit.
It will be recalled that the learned trial judge found that the sub-Article contained a power to confer immunity from disclosure on private papers “by declaring them to be so”. The motion passed on the 6th February, 2002, emphatically does not do this. On the contrary, it is studiedly vague. Mr. Hogan suggested that it should be construed liberally, and not narrowly like a search warrant or a taxing statute. I cannot agree with this submission. A search warrant, for example, is construed strictly because it constitutes an invasion of an individual’s constitutional right to the security of his dwellinghouse or other property. But this protection, if lawfully invoked, will frustrate the otherwise legitimate and important demand of a Tribunal of Inquiry, and tend, on the Tribunal’s undisputed findings, to the frustration of its work. This, in turn, may inure to disadvantage of the entire community. No doubt the Committee would wish to give the issue solemn and detailed consideration before they invoke the power in such circumstances. They may indeed have done so, but if they did it is not evidenced in their resolution. Indeed, the resolution does not even evidence that they invoked the power at all. The Committee are undoubtedly possessed of a power themselves to confer protection on the documents, but it appears to me that they decided (to judge from the resolution) only to make submissions of an unspecified character “concerning the powers and privileges of Dáil Eireann and its members”.
In reaching this conclusion, it is fair to record that none of the parties represented on the hearing of this appeal considered the resolution to be a satisfactory one. On behalf of Deputy Howlin, Mr. Hogan said that it would be “better if the terms of the resolution were more forthright” and that the resolution itself “may well be ambiguous”. Mr. Gleeson S.C. on behalf of the Committee conceded that “there are some things which could be there but aren’t”, referring specifically to the fact that the resolution did not record the documents to which it applied. Asked whether the Committee’s invitation to the Court to construe an exercise of the power from the terms of the motion plus the submissions later made by counsel did not suggest a very “idiosyncratic” exercise of the power, counsel could only argue that, although not specified in the resolution, the draft order of the Tribunal was known before the resolution so that the Committee “knew the general nature of the documents in question”. Counsel for the Deputy and the Committee were unfailing in their ingenuity in standing over the resolution and made such concessions only as were absolutely necessary but these concessions are plainly suggestive of ambiguity. If necessary, I would hold that ambiguity alone is sufficient to demonstrate that there has been no proper or lawful exercise of the power contained in Article 15.10 by the Committee.
Articles 15.12 and 13 and Common Law privilege.
I agree with the learned trial judge that the facts established in this case do not engage the provisions of Article 15.12 or 13, for the reasons which he gives.
The learned trial judge did not find it necessary to consider the Common Law privileged claimed by the applicant. Such a privilege would clearly not be an absolute one. Assuming that it were open to this Court to consider these submissions, I could find no fault in the first respondent’s approach to this question, and no basis for regarding his decision as unsound in law. I would remark only that I am wholly unconvinced by the applicant’s submission that the “innocence at stake” exception to a privilege (assuming there to be a privilege) applies only in a criminal trial.
The Oireachtas has thought it necessary that a tribunal should investigate allegations that “a large number of convictions were achieved by ‘planting’ evidence”, and that two Assistant Commissioners of An Garda Síochána were aware of this. That is an allegation of the corruption of the criminal trial process itself by gardaí. To hold that an “innocence at stake” exception to privilege could have applied during the trial process (which was allegedly corrupted and during which the allegations were in any event unknown) but not during the investigation into the alleged corruption would be an absurdity. It would ensure the frustration of the inquiry which the Oireachtas itself has set in motion. These allegations raise in terms the prospect that people have been framed and thereby convicted of criminal offences. In my view this presents an “innocence at stake” situation in an acute form.
Conclusion.
I would allow the appeal and substitute for the order of the High Court an order refusing the relief sought.
APPENDIX I
CONFIDENTIAL….. CONFIDENTIAL….. CONFIDENTIAL
Confidential information has come to hand from a serving Detective Inspector of An Garda Siochana attached to a Station in the D.M.A. concerning the Garda Investigation in the Donegal Division.
1. There appears to be a problem concerning the ongoing investigation into the conduct of one Detective Sergeant John White which would give the impression that the matter is not being dealt with in accordance with the Commissioner’s instructions to the investigating Officer, Kevin Carty. If this is the case, it is very worrying to say the least.
2. The reason for this is the fact that Detective Sergeant White worked with both Mr. Carty and Assistant Commissioner Tony Hickey during his service in Dublin and whenever evidence had to be got to prove a case beyond doubt, Sergeant White was the man who was given the job of producing the said evidence by unlawful means.
3. A large number of convictions were achieved by “planting” evidence and both Carty and Hickey were aware that White was the source of the “trumped up” evidence. Payback was extra expenses for White in the form of unworked overtime/travelling and subsistence allowances and the misappropriation of Department of Justice funds continued up to 1998 as White was given blanket permission to claim the aforementioned expenses.
4. There is now a fear among members of the investigation team that if White is fully investigated he will use his knowledge of those matters as his defence and in doing so a number of persons convicted which involved lengthy prison sentences will prove to have been unsafe and the consequences for those involved and indeed the entire force, would be unthinkable.
5. Another matter which White was involved in was the planting of stolen property on suspects and as result of this he had a huge amount of stolen property at his disposal. This property was not officially documented in official property books and this malpractice enabled him to have a huge amount of stolen property at his disposal. When he moved to the Donegal Division he moved a large amount of said stolen property with him and this was known by the Authorities and indeed was a “running joke” among ordinary Gardai.
6. Taking all this reliable information into account it is felt that this investigation will be unsuccessful in establishing the true facts of the illegal activities of Detective Sergeant White and the only other alternative is a full and open public enquiry.
It is known that White is in regular contact with Assistant Commissioner Hickey and has an eighteen page document concerning his and others activities whilst he was stationed in Dublin and this document, it appears, is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation.
END
APPENDIX II
TRIBUNAL OF INQUIRY
INTO
COMPLAINTS CONCERNING SOME
GARDAÍ IN THE DONEGAL DIVISION
Appointed by Instrument made by the Minister for Justice, Equality and Law Reform upon the 24th day of April, 2002 entitled Tribunals of Inquiry (Evidence) Act, 1921 (Establishment of Tribunal Act, 2002.
ORDER OF DISCOVERY
Dated this 28th day of February, 2003.PURSUANT to the powers conferred upon me by the Tribunals of Inquiry (Evidence Acts, 1921 to 2002.
IT IS ORDERED That Senator James Higgins of Devlis, Ballyhaunis, Co. Mayo do make discovery on oath of and produce to the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division, Belfield Office Park, Beaver Row, Clonskeagh, Dublin 4:
- 1. All notes, documents, records, statements, memoranda and correspondence relating to events concerning allegations contained in documents received by the said Senator James Higgins between the 25th day of June, 2000 and the 15th day of July 2000, both dates inclusive and information received by Mr. Brendan Howlin, T.D., on the 25th June, 2000 that two senior members of An Garda Siochána may have acted with impropriety and relating to the making of the allegations contained in the said documents and information including telephone, facsimile and mobile phone records in respect of telephone numbers [specified numbers] relating thereto (Including the names and addresses of the subscriber’s accounts relevant to the said incoming and outgoing telephone calls or facsimile communications), in respect of the period from the 25th day of June, 200 to the 15th day of July, 2000, (both dates inclusive).
- 1. All notes, documents, records, statements, memoranda and correspondence relating to the making of allegations contained in documents received by Senator James Higgins between the 25th day of June, 2000 and the 15th day of July 2000 (both dates inclusive) and in information received by Mr. Brendan Howlin, T.D., on the 25th June, 2000 that two senior members of An Garda Síochána may have acted with impropriety and, in particular, all telephone and facsimile records in respect of telephone numbers [specified numbers] in respect of the said period relevant to Paragraph (h) of the Tribunal’s Terms of Reference (including the names and addresses of the subscriber’s accounts relevant to the said incoming or outgoing telephone calls or communications by facsimile).
- 1. All notes, documents, records, statements, memoranda and correspondence relating to information received by Mr. Brendan Howlin, T.D., from the 25th day of June, 2000 until the 4th day of July, 2000 (both dates inclusive) in respect of allegations that three members of An Garda Síochána (including two senior members) may have acted with impropriety and relating to the making of allegations to Mr. Brendan Howlin, T.D., including all telephone, facsimile and mobile phone records relating thereto (Including the names and addresses of the subscriber’s accounts relevant to the said incoming and outgoing telephone calls or facsimile communications) in respect of the said period from the 25th day of June, 2000 until the 4th day of July, 2000 (both days inclusive).
IT IS FURTHER ORDERED By Consent that eircom Limited of Ardilaun House, 112-114 St. Stephen’s Green West, Dublin do make discovery on oath and produce to the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division, Belfield Office Park, Beaver Row, Clonskeagh, Dublin 4:
- 1. All notes, documents, records, statements, memoranda and correspondence relating to information received by Mr. Brendan Howling T.D., between the 25th day of June, 2000 and the 4th day of July, 2000 (both dates inclusive) and in particular, all telephone, facsimile and mobile phone records in respect of phone services supplied to Mr. Brendan Howlin, T.D. of Whiterock Hill, Wexford in respect of the said period from the 25th day of June, 2000 to the 4th day of July, 2000 (both dates inclusive) relevant to Paragraph (h) of the Tribunal’s Terms of Reference (including the names and addresses of the subscribers accounts associated with relevant incoming or outgoing telephone calls or communications by facsimile).
IT IS FURTHER ORDERED That there be a stay of four weeks on this Order and further that such stay continue, pending final determination or resolution of any legal proceedings which may be initiated within the said period of four weeks in respect of the making of this Order or any part thereof within the State.
Frederick Morris.
The Honourable Mr. Justice Frederick Morris,
Sole Member of the Tribunal of Inquiry into
Complaints concerning some Gardaí in the
Donegal Division.
I CERTIFY THIS TO BE A TRUE COPY
Brendan O’Donnell.
Registrar to the Tribunal
TRIBUNAL OF INQUIRY
CONCERNING SOME
GARDAI IN THE DONEGAL
DIVISION
____________________________
ORDER OF DISCOVERY
____________________________
Belfield Office Park,
Beaver Row,
Clonskeagh,
Dublin 4.