THE SUPREME COURT
Case Nos: 71/17,73/17,78/17
Clarke C.J. O'Donnell J. McKechnie J.MacMenamin J. Dunne J. O'Malley J. Finlay Geoghegan J. Angela Kerins
Applicant/Appellant
And
Deputy John McGuinness, Deputy Mary Lou McDonald, Deputy Shane Ross, Deputy Áine Collins, Deputy Paul J. Connaughton, Deputy John Deasy, Deputy Robert Dowds, Deputy Sean Fleming, Deputy Simon Harris, Deputy Eoghan Murphy, Deputy Gerald Nash, Deputy Derek Nolan, Deputy Kieran O'Donnell, The Clerk of Dail Éireann, The Clerk of the Public Accounts Committee, Ireland and the Attorney General
Judgment of the Court delivered the 27th February, 2019 by Mr. Justice Clarke, Chief Justice
1. Introduction
1.1 The Irish Constitution creates three powers of government being the legislative, executive and judicial. Those powers do, however, and at least in certain respects, interact with each other. The Constitution provides for the appointment of judges by the executive and their removal by the legislature. Legislative acts of the Oireachtas can be declared to be of no legal effect by the courts. The Dail elects the executive. That list is by no means exhaustive. Thus, the constitutional model involves three separate powers which do not occupy completely independent parts of the landscape without interaction with the other powers.
1.2 However, the real issues which arise in the context of disputes over the separation of powers concern questions relating to the boundaries between the respective powers. Legislative action taken for the purposes of interfering with live proceedings before the courts may amount to an impermissible interference by the legislature with the judicial power ( Buckley and ors. v. Attorney General and anor . [1950] I.R. 67). Courts have been careful where developing the common law not to go so far as to stray into, in effect, legislating. Again, many further examples could be given.
1.3 However, the precise boundaries over which it is impermissible for one constitutional power to stray may not always be easy to determine and can be the subject of legitimate debate. This case raises such questions. To what extent, and in what way, if any, can this Court, exercising the judicial power of government conferred on it by the Constitution, consider the lawfulness of the actions of the Public Accounts Committee of Dail Éireann, consisting of the first to thirteenth named respondents ("the PAC") in the manner in which it dealt with the applicant/appellant ("Ms. Kerins"). Inextricably linked with that question is the issue of whether there could be any remedy which the courts might legitimately be able to provide for Ms. Kerins which would not breach the separation of powers as defined in the Constitution.
1.4 Ultimately, for reasons which will be set out in more detail, a Divisional High Court ((Kelly P., Noonan, Kennedy JJ.) Kerins v. McGuinness & ors . [2017] IEHC 34) concluded that it would be a breach of the separation of powers for it to embark on a consideration of the complaints of unconstitutional or unlawful activity made by Ms. Kerins against the PAC. Ms. Kerins has appealed to this Court against that decision. There are, however, within that very broad question, a significant number of specific issues which require to be considered in order to determine the correct result of this appeal.
1.5 It is also relevant to note that, at much the same time as leave to appeal in this case was granted, the Court also granted leave to appeal in the case of O'Brien v. Clerk of Dail Éireann in which appeal judgment was also due to be delivered today but has been deferred for a short period for reasons unconnected with the common issues in both proceedings. As appears from the judgments in both cases, there are at least some common constitutional issues which potentially arise. For those reasons, the appeals were managed in tandem. Given that it was likely that the Court would, at the same time, be deliberating on both appeals, it was felt appropriate to put in place procedures to ensure that all parties to both cases could not be prejudiced by any submissions made in or considerations arising from an appeal in which they were not directly involved.
1.6 With that in mind, arrangements were made to ensure that the written submissions filed in each appeal were made available to the parties to the other appeal so that they would be aware of the arguments being advanced and could take same into account to the extent that they might be material in their own case.
1.7 Mindful of the fact that it is far from unusual for the argument to develop at an oral hearing, a further procedure was put in place whereby the parties to this appeal (which was due to be and was heard first) were invited to take a watching brief during the subsequent hearing of the appeal in O'Brien and were afforded an opportunity, should they so wish, to make any brief additional oral submissions at the conclusion of the O'Brien hearing to the extent only that there might have been developments arising from the oral argument in O'Brien which might potentially impact on this case and in respect of which it might be felt appropriate to make comment.
1.8 It was, of course, unnecessary to afford a similar facility to the parties in O'Brien because, given that this case was heard first, the parties in O'Brien had the opportunity to consider the discussion which developed at the oral hearing in this case and to deal with any issues which they might consider relevant in the course of their own submissions at the oral hearing in O'Brien .
1.9 It should be recorded that the Court considers that a procedure along these lines may well be appropriate in circumstances where the Court is considering two or more cases which have common ground but nonetheless differ significantly, so that, while it would not be appropriate to hear both cases together, all parties would be afforded an opportunity of ensuring that the result of their case might not be materially influenced by arguments arising in another case in circumstances where the parties did not have an effective ability to deal with the arguments concerned.
1.10 Against that background it may be useful to turn first to the facts of this case in order to help to fully explain the precise issues which fall for decision.
2. The Facts
2.1 The PAC is a committee of Dail Éireann established by the standing orders of that House. It is also defined in s. 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 ("the 2013 Act") as "the committee of Dail Éireann established under the rules and standing orders of Dail Éireann to examine and report to Dail Éireann on the appropriation accounts and reports of the Comptroller and Auditor General".
2.2 The PAC is established by order 163 of the standing orders of Dail Éireann, which provides:-
"163. (1) There shall stand established, following the reassembly of the Dail subsequent to a General Election, a Standing Committee, to be known as the Committee of Public Accounts, to examine and report to the Dail upon—
(a) the accounts showing the appropriation of the sums granted by the Dail to meet the public expenditure and such other accounts as they see fit (not being accounts of persons included in the Second Schedule of the Comptroller and Auditor General (Amendment) Act, 1993) which are audited by the Comptroller and Auditor General and presented to the Dail, together with any reports by the Comptroller and Auditor General thereon: Provided that in relation to accounts other than Appropriation Accounts, only accounts for a financial year beginning not earlier than 1 January, 1994, shall be examined by the Committee;
(b) the Comptroller and Auditor General's reports on his or her examinations of economy, efficiency, effectiveness evaluation systems, procedures and practices; and
(c) other reports carried out by the Comptroller and Auditor General under the Act.
(2) …
(3) The Committee may proceed with its examination of an account or a report of the Comptroller and Auditor General at any time after that account or report is presented to Dail Éireann.
(4) The Committee shall have the following powers:
(a) power to send for persons, papers and records as defined in Standing Order 83(2A) and Standing Order 85;
(b) power to take oral and written evidence as defined in Standing Order 83(1);
(c) power to appoint sub Committees as defined in Standing Order 83(3);
(d) power to engage consultants as defined in Standing Order 83(8); and
(e) power to travel as defined in Standing Order 83(9).
(5) Every report which the Committee proposes to make shall, on adoption by the Committee, be laid before the Dail forthwith whereupon the Committee shall be empowered to print and publish such report together with such related documents as it thinks fit.
(6) …
(7) The Committee shall refrain from—
(8) …
(9) The Committee shall consist of thirteen members, none of whom shall be a member of the Government or a Minister of State, and five of whom shall constitute a quorum. The Committee and any sub Committee which it may appoint shall be constituted so as to be impartially representative of the Dail."
2.3 Ms. Kerins was the Chief Executive Officer of the Rehab Group ("Rehab") from December 2006 until her resignation in April 2014. The income of Rehab is derived from a number of sources, some of which derive from public funds. First, Rehab received funding from the Health Service Executive ("HSE") as a result of a competitive tendering process by virtue of which it entered into service level agreements with the HSE under the provisions of s. 39 of the Health Act 2004. Second, Rehab received funding from another state agency called Solas in respect of services rendered under contractual arrangements between Rehab and Solas. Third, Rehab received public funding from the Department of Justice and Equality under the Charitable Lotteries Scheme.
2.4 It should be noted, however, that whilst it was in receipt of public funds, Rehab was at all times an independent entity operating in the private sector. Similarly, it should be noted that Ms. Kerins was a private sector employee who did not, for example, enjoy access to the public sector pension scheme. It should further be recorded that, as Rehab was not under the remit of the Comptroller and Auditor General, it was never audited by him.
2.5 With that background in mind, it is appropriate to turn to the chronology of events leading to Ms. Kerins' claim in the High Court.
2.6 By letter dated the 22nd January 2014, the PAC wrote to Ms. Kerins advising her that the PAC "is currently examining the issue of State funding to the Rehab Group". The letter continued:-
"The request to [the HSE and the Department of Justice and Equality] relates, in the main, to oversight and conditions of funding and the Committee has also sought access to any evaluations undertaken of the funding provided by the State to the Rehab Group. The Committee also directed me to make contact with you in relation to these matters so as to afford the Rehab Group the opportunity to outline to the Committee the outturn and outcome achieved by Rehab of the funding received from the State."
2.7 On the 24th January 2014, Ms. Kerins met privately with the chairman of the PAC, the first-named respondent ("Mr. McGuinness"), to discuss her attendance before the Committee.
2.8 By letter dated the 18th February 2014, the PAC wrote to Ms. Kerins inviting her to appear before it. The letter states that the PAC had set aside the 27th February 2014 for the examination of:-
"Payments made by the HSE to Rehab under section 39 of the Health Act, 2004.
The operation of the Charitable Lotteries Scheme and payments made to Rehab from the Vote of the Department of Justice and Equality.
Payments made by Solas to Rehab for the provision of Specialist Vocational Training."
2.9 On the 27th February 2014, Ms. Kerins appeared before the PAC. Ms. Kerins's attendance was voluntary. She was under no legal obligation to attend. Ms. Kerins was not accompanied by lawyers although she had received legal advice prior to the hearing. Her appearance before the PAC lasted for seven hours with one short break. In this regard, it is perhaps worth quoting from the judgment of the Divisional Court at paras. 18 to 22 for a useful summary of the conduct of the hearing. The Court concluded that there were constitutional limitations on the extent to which it could comment on utterances made by individual members of the PAC, before going on to state:- "… it seems to us that it cannot be gainsaid that much of what was put to her, and said about her, in the course of this meeting was damaging to her reputation personally and professionally. She was criticised for involving her lawyers in the matter. She was accused of being stubborn in maintaining a position that the PAC was not to meddle, interfere or ask questions that Rehab deemed inappropriate. Questions were put to her which inferred that she had no concept of accountability or responsibility in her ‘public position'.
She was accused of adopting double standards in her approach to the pay of Rehab staff as distinct from her own - this was described by one member as ‘shocking'. When questioned about her pension, another area about which she received no advance notice, she was told her answers were unreasonable. She was ‘thanked' for her sympathetic view of those members of the committee who were ignorant of the full magnitude of her role. It was suggested to her that she was grossly overpaid and was on ‘a different planet'. She was subjected to interrogation about her modes of transport. It was said of her that her salary was having a negative effect on Rehab and other charitable organisations.
She was subjected to questioning about a company in which her family members were involved and which had business dealings with Rehab. It was suggested to her that there was an extraordinary opaqueness about the accounts of Rehab. She was criticised for making ‘a song and dance' about her appearance before the PAC and giving evasive answers to questions. She was deemed to be not forthcoming enough and told that she needed ‘to get a grip on herself'. It was said that information had to be dragged out of her and that she was doing more damage than good to the charitable sector. It was described as ‘incredible' that her solicitors should correspond with the PAC in advance to advise it of the extent of its remit."
2.10 Following this hearing, Ms. Kerins says that she suffered from shock, stress and anxiety. She was hospitalised from the 2nd March 2014 to the 11th March and on the 14th March attempted to take her own life.
2.11 On the 11th March 2014, a letter was sent from Rehab to the PAC providing additional information regarding matters raised during the hearing of the 27th February 2014. The letter bore Ms. Kerins' electronic signature.
2.12 On the 13th March 2014, the PAC wrote to Ms. Kerins requesting her attendance before the Committee on the 10th April 2014. The letter listed the same issues for examination as those contained in the letter dated the 18th February 2014 but with the addition of "Payments made by other Government Departments to companies of the Rehab Group".
2.13 On the 2nd April 2014, Ms. Kerins resigned from her position as CEO of Rehab.
2.14 On the 9th April 2014, Ms. Kerins' solicitors wrote to the PAC informing the Committee that due to ill-health and following medical advice she was unable to attend the hearing scheduled for the 10th April. The letter also complained about the manner in which the PAC treated Ms. Kerins during the 27th February hearing. The PAC replied to this letter on the same day, stating:-
"The Committee notes that your client, Ms. Kerins, is unable to attend the Committee hearing at this time due to ill health. On her full recovery, and if required, the Committee hopes that your client will be in a position to continue to assist it in its examination of the use by Rehab of approximately €83 million of taxpayers' monies annually."
2.15 On the 10th April 2014, the PAC proceeded with its scheduled meeting. Ms. Kerins was not in attendance. However, the meeting was attended by the chairman and three members of the board of Rehab together with a Rehab executive. Again, reference might be made to the summary of the 10th April hearing contained in the judgment of the Divisional Court, which states:- "The meeting was opened by Mr. McGuinness, noting the correspondence from Ms. Kerins' solicitors of the previous day and that she was too ill to attend. He wished her a speedy recovery. However, having done so, Mr. McGuinness went on during the course of the meeting, to describe the applicant's non-attendance as being ‘unacceptable and beyond common sense' and ‘deplorable'. Indeed, despite the fact that no issue was taken about the bona fides of the applicant's inability to attend, she was subjected to strident criticism by a number of members of the PAC for not doing so. This was described by one member as an attempt to defy the Committee.
What followed was, by any standards, extremely damaging to Ms. Kerins' reputation. The court, as well as having the transcripts available to it, had the opportunity of seeing a video recording of certain parts of the PAC's proceedings on that day. It would appear that almost every facet of Ms. Kerins' involvement with the Rehab Group was subjected to criticism. Negative comment was made on the fact that Ms. Kerins' family was involved in an enterprise that had business dealings with Rehab and it was suggested that this was improper.
The appropriateness of her directorships of companies within the Rehab Group was questioned. Disclosures made by her to the board of Rehab about Complete Eco Solutions Ltd, a company in which her family members have an involvement, was described as ‘bizarre' and it was alleged that she had misled the board of Rehab about that company. It was suggested that she had an inappropriate business relationship with a former chief executive officer of Rehab, Mr. Frank Flannery. She was accused of wrongly stating to the PAC that she was not paid by the tax payer and that she misled the PAC about her pay.
Members of the PAC sought to establish from the members of the board of Rehab in attendance that internal complaints had been made about Ms. Kerins, the nature of these complaints and whether she had damaged Rehab. It was stated that she had obstructed the Committee during her appearance on 27th of February and had prevaricated. It was said of her that she regarded Rehab as her personal fiefdom where she could break rules with impunity. It was said that Rehab had ‘come to a pretty pass' under her leadership.
This is not in any sense an exhaustive tally of the many reputationally damaging things that were said of Ms. Kerins at this meeting."
2.16 Following this meeting, the PAC wrote to Ms. Kerins' solicitors by letter dated the 15th April 2014. This letter invited Ms. Kerins to attend again before the PAC and stated that, if Ms. Kerins declined this invitation, the PAC would give consideration to seeking compellability powers under Part 7 of the 2013 Act. Ms. Kerins' solicitors responded by letter dated the 30th April 2014, declining the PAC's invitation. On the 8th May 2014, the PAC replied stating that it would seek compellability powers.
2.17 The PAC applied to the Committee on Procedure and Privileges ("CPP") seeking compellability powers. On the 16th July 2014, the CPP issued its decision refusing to grant such powers. It expressed its reasoning in the following terms:-
"The main issue in this application is whether the PAC will be acting intra vires in pursuing this matter. The powers of all Committees are derived from Standing Orders, the Inquiries Act, the Constitution and case law. In its submission of 1 July, the PAC accepts that Rehab is not audited by the C&AG. However, the Committee argued that it is implicit in the PAC's role to make inquiries of bodies in receipt of public money.
It is clear to the CPP, and this position is corroborated by the independent legal advice provided both internally and externally, that under SO 163(1) the PAC is only empowered to proceed with examination of an account or a report after it is presented to Dail Éireann. As no such account or report exists or has been presented to Dail Éireann, the examination into the internal affairs of Rehab is ultra vires the PAC. The PAC does not have the implied power to investigate the use of monies by any person or company or other body simply because they are in receipt of money from a body that is itself lawfully subjected to scrutiny by the PAC.
The CPP therefore refuses to grant its consent to the PAC to issue a direction in respect of any of the persons or documents listed in the request."
(Emphasis in original)
2.18 The Divisional Court noted that, "It is common case that the effect of this determination was to bring to an end the further pursuit by the PAC of matters relating to Rehab or Ms. Kerins' role therein."
2.19 Against that background it is necessary to turn to the claim made by Ms. Kerins in these proceedings.
3. The Claim
3.1 In the High Court, Ms. Kerins sought relief on nine substantive grounds. Four of the reliefs sought related to the ongoing activities of the PAC in relation to Ms. Kerins: an injunction restraining the PAC from pursuing its examination of Rehab insofar as it related to Ms. Kerins; an injunction restraining the publication of any report arising from the PAC's examination of expenditure by Rehab making findings or otherwise reporting on any matters connected with Ms. Kerins' employment, her appearance before the Committee, or in any impugning her good name/character; an order restraining the PAC from seeking power to compel Ms. Kerins to appear before the Committee; and, an order staying further examination by the PAC of expenditure of Rehab and/or the employment affairs of Ms. Kerins pending the determination of the High Court proceedings. As the proceedings before the PAC are now at an end these reliefs are no longer of relevance.
3.2 The next four reliefs sought were: a declaration that the PAC lacked jurisdiction to undertake the examination described in the proceedings; a declaration that the examination undertaken by the PAC was tainted by bias of individual members of the Committee; an order seeking to remove from the record of the PAC any reference to Ms. Kerins; and a declaration that the procedures adopted by the PAC were unfair rendering the proceedings unlawful. Finally, there was a claim for damages.
3.3 Thereafter it was determined that the matter should be decided by a Divisional High Court which, as already noted, held against Ms. Kerins. However, it is important to note that what was before the Divisional High Court was in fact the first part of a modular hearing. The judgment of the Divisional High Court suggests that the Court of Appeal had made an order providing for a modular hearing. That is not strictly speaking correct. What in fact happened was that there was an application for discovery before the High Court. Obviously, the scope of the discovery which might be considered appropriate was potentially influenced by whether or not there was to be a modular hearing. The High Court considered that there should be a modular hearing with all questions concerning the award of damages being postponed to a second module. That determination affected the scope of discovery then ordered. The High Court did not consider it either necessary or appropriate at that time to direct discovery which might be considered relevant and necessary in the context of the damages issue because of the fact that that issue had been postponed to a later hearing.
3.4 The judgment of the Court of Appeal on the discovery issue ( Kerins v. McGuinness , [2015] IECA 267) records that, while neither party specifically appealed against the decision of the High Court to direct a modular hearing, argument was addressed by counsel for Ms. Kerins, in the context of the scope of discovery under debate, as to whether there should be a modular hearing. For the reasons set out in the judgment of the Court of Appeal it was determined that the High Court was correct to direct a modular hearing. However, as that decision only formed part of the reasoning in relation to the discovery issues which were before the Court of Appeal, the order of that court did not, in fact, specifically refer to a direction that there be a modular hearing.
3.5 However, it is clear that, by the time the substantive issue came to be considered by the Divisional High Court, it had been established and was accepted that the Divisional High Court was to consider only what was described as the jurisdictional issues, being questions as to the lawfulness of the conduct of the PAC in relation to Ms. Kerins with all questions concerning whether, and if so in what amount, Ms. Kerins might be entitled to damages being deferred to a second module. Given the result of the first module before the Divisional High Court, the question of a hearing of the second module did not arise. However, it is important to emphasise that the appeal to this Court lies, therefore, against the decision of the Divisional High Court in what was the first module of what might potentially be a two module process. In that context, it will be necessary to say a little more about the question of damages at a later stage in this judgment although, clearly, this appeal is not directly concerned with damages questions.
3.6 It is appropriate, therefore, to turn next to the decision of the High Court.
4. The Decision of the Divisional Court
4.1 The reasoning of the Divisional Court is directed towards two broad and interrelated issues. The first concerns arguments raised by counsel for Ms. Kerins regarding the jurisdiction of the PAC. The second concerns freedom of speech in parliament generally.
4.2 In relation to the question of the PAC's jurisdiction, the arguments which the Divisional Court contended with were, broadly speaking, that either the PAC was always acting ultra vires in its treatment of Ms. Kerins, or alternatively, if the PAC did have jurisdiction to undertake the inquiries which it pursued, that jurisdiction was lost by virtue of a variety of factors.
4.3 The analysis of the Divisional Court in this context centred on the voluntary nature of Ms. Kerins attendance before the PAC. While acknowledging the various non-legal factors which may have influenced her decision to attend the hearing and to answer questions put to her by the PAC, the Divisional Court noted at paragraph 59:-
"Her attendance was purely voluntary in the legal sense and was not secured by the exercise of any legal power by the PAC. Had she chosen not to attend, as did her predecessor Mr. Flannery, or having attended not to answer certain questions or indeed to walk out at any stage, the PAC was legally powerless to prevent her doing so."
4.4 The Divisional Court went on to note that, had the PAC been granted compellability powers by the CPP, this would have made a significant difference, as the PAC would in fact have been legally empowered to compel Ms. Kerins' attendance and to require answers to questions put to her within its remit. The Divisional Court went on to state, at paragraph 61:- "This is of critical importance to the claim of Ms. Kerins which makes jurisdiction the centrepiece of her case. However, it seems to us that in reality, the issue of jurisdiction, when properly analysed, simply does not arise because none was being exercised. This is what distinguishes this case from Haughey and Abbeylara where the court's jurisdiction was engaged by virtue of the adjudicative and determinative processes being undertaken in those cases pursuant to powers purportedly vested in the relevant committees."
4.5 Having set out the pertinent passages from the judgment of Ó Dalaigh C.J. in In Re Haughey [1971] I.R. 217, the Divisional Court noted that counsel for Ms. Kerins sought to argue that she was entitled to the rights enumerated in that case, as her position was, in reality, analogous to that of Mr. Haughey. The Divisional Court rejected this argument, holding that there was not any analogy between the situation in Haughey and that in the present case:- "Mr. Haughey's attendance before the PAC was under legal compulsion. He was legally obliged to answer the Committee's questions but only such questions as were within their jurisdiction to lawfully ask. In the event, that never became relevant as he refused to answer any questions.
There is therefore no true analogy between the position of Ms. Kerins and Mr. Haughey. As we have already explained, she was not legally compelled to either attend or answer any questions if she did not wish to do so. She could be subject to no legal sanction if she refused. The question of her being afforded Haughey rights to defend herself could never therefore arise when she already had the right to decline cooperation at any stage."
4.6 The Divisional Court went on to cite from other authorities relied on by counsel for Ms. Kerins. Reference was made to the joint judgment delivered by O'Donnell and Clarke JJ. in Callely v. Moylan & ors . [2014] 4 I.R. 112, which was the majority judgment of this Court in relation to some of the issues in that case. The Divisional Court noted that Callely was primarily concerned with Article 15.10 of the Constitution.
4.7 Furthermore, the Divisional Court noted that Callely concerned an applicant who was subjected to a compulsory determinative process which affected his rights, as in Haughey and Maguire v. Ardagh [2002] 1 IR 385 (hereafter "Abbeylara"). The Court stated, "Unlike Ms. Kerins, he could not opt out of that process. Thus, it seems to us that the issues decided by the Supreme Court in Callely are not directly relevant to the questions that this court must decide." The Divisional Court did note that it was agreed by the parties to these proceedings that it is the function of the courts to determine the boundaries of justiciability. In that regard, the Court quoted from relevant passages in Callely .
4.8 The Divisional Court went on to consider both the judgments of the Divisional Court and of this Court in Abbeylara . Briefly, that case concerned a sub-committee, established by a joint committee of both Houses of the Oireachtas, which was to consider a report prepared by a Garda Chief Superintendent concerning the shooting of John Carthy by the Gardaí. The Divisional Court quoted from the joint judgment in Callely , where the issue at the centre of Abbeylara was described as follows:-
"…The fundamental issue raised by the plaintiffs in that case was their contention that, on a true interpretation of the Constitution, the powers of the Oireachtas did not extend to making inquiries having as their object the finding of facts in relation to the affairs of individual citizens."
4.9 Thus, the Divisional Court contrasted the position of the sub-committee in Abbeylara, and the adjudicative powers it purported to enjoy, with the position and powers of the PAC in the present case:- "In contrast here, the PAC had no adjudicative function nor did it purport to make any findings of fact in relation to Mrs. Kerins, despite the characterisation that counsel for the applicant sought to place upon the utterances complained of. As in Haughey , the jurisdiction issue only came into play by virtue of the compulsory nature of the Committee's proceedings."
4.10 The Divisional Court emphasised again that it is only where compellability powers are being exercised by a committee that the issue of jurisdiction can arise. As such powers were absent in the present instance, the Divisional Court reiterated its conclusion that the jurisdiction issue did not arise.
4.11 Having reached that conclusion, the Divisional Court then went on to consider the issue of freedom of speech in parliament as protected by the Constitution. In that context, the Divisional Court quoted at length from a range of authorities concerning both the nature and extent of the privileges and/or immunities which are protected under Articles 15.10, 15.12 and 15.13 of the Constitution. It will be necessary to consider those authorities in greater detail later in this judgment. For present purposes it will suffice to set out the conclusions reached by the Divisional Court following its analysis. First, however, it should be noted that the Divisional Court rejected the suggestion that, as the speech complained of in this instance took place within the context of a committee hearing, as opposed to in either chamber of the Houses of the Oireachtas, it was outside the ambit of parliamentary privilege.
4.12 The Divisional High Court concluded that the jurisdictional issue raised by counsel for Ms. Kerins was not justiciable as the utterances complained of did not amount to adjudication or determination on the part of members of the PAC. Rather, the Court stated, those utterances were expressions of opinion devoid of any legal force. The Court stated:-
"They were no more than utterances and as such Article 15.13 has the effect of ousting the court's jurisdiction. The essence of the applicant's case is a claim for damages arising from those utterances which seeks to make the Oireachtas respondents amenable to the jurisdiction of the court. That cannot be done."
4.13 The Divisional Court continued:-
"To adopt the words of Johnston J. in Cane v. Dublin Corporation [1927] I.R. 582 (at p. 601) :
‘It would be strange, indeed, if a Court of law were to have the power to pass under review the evidence and the proceedings before a Parliamentary Committee.'
Ms. Kerins has in various ways invited the court to analyse the utterances in terms of tone and content and to test them for bias, propriety and more. This is to invite the court to examine, discuss and adjudge words used in parliament, the very thing that Blackstone said was not to be done."
4.14 The Divisional Court stated, however, that this does not result in a denial of Ms. Kerins' constitutional rights. Rather, the Court explained, in this context it is the Oireachtas itself which is the custodian of her rights. The Court then quoted with approval the following passage from the joint judgment in Callely :-
"[81.] Furthermore, the fact that the Constitution requires that there remains an area of activity in the legislature which is non-justiciable does not mean that that area is beyond the reach of the Constitution. The Oireachtas is itself required to uphold the Constitution and to respect the rights of citizens, whether members or not. This indeed, is no doubt why the Oireachtas has adopted rules to protect individuals in the context of the exercise of freedom of speech within the Oireachtas which is guaranteed by the Constitution and why there is elaborate provision for fair procedures in the legislation providing for committee hearings under the ethics in public office legislation. The fact that there cannot be immediate recourse to the courts places, if anything, a heavier onus on the Oireachtas to ensure that constitutional rights are respected in proceedings which are themselves non-justiciable."
4.15 Finally, the Divisional Court concluded by stating:- "For upwards of four centuries it has been recognised in common law jurisdictions throughout the world that the courts exercise no function in relation to speech in parliament. This is fundamental to the separation of powers and is a cornerstone of constitutional democracy. The Constitution guarantees freedom of speech in parliament, not to protect parliamentarians, but the democratic process itself. The constitutional order requires that speech in parliament remain unfettered by considerations such as jurisdiction. If members of either House were constrained in their speech in the manner contended for by the applicant, the effective functioning of parliament would be impaired in a manner expressly forbidden in absolute terms by the Constitution.
Thus the privilege conferred by Article 15.13 is not merely one that provides a litigation defence as for example, a plea of privilege in a defamation action; rather utterances in parliament are in an area of non-justiciability ordained by the Constitution.
For all of these reasons therefore, the court is of the opinion that this claim must fail."
4.16 As can be seen from both the claim made and the way in which this matter progressed before the High Court, there are a significant number of issues which have the potential to impact on the proper resolution of these proceedings. In that context, it seems to the Court that the issues which do, or at least may, depending on the resolution of other questions, require to be resolved are as set out in the following sections of this judgment. It is first appropriate to turn to the grant of leave to appeal.
5. The Grant of Leave
5.1 Against the judgment of the Divisional Court, Ms. Kerins sought leave to appeal directly to this Court. By a determination of the 10th July 2017 ( Kerins v. Deputy McGuinness & ors. [2017] IESCDET 77), the Court, for the reasons set out in that determination, granted leave.
5.2 The basis on which leave was granted was as follows:-
"[T]his case raises issues which the Court is satisfied meet the criteria for an appeal from the High Court directly to this Court.
The issues raised include, as a matter of general public importance, the legal safeguards available to witnesses who appear before PAC in a voluntary capacity. The role, if any, which the Court has in protecting such witnesses, in circumstances where there are the important issues of freedom of speech in the Legislature, the separation of powers, and the extent to which the Court may intervene in the affairs of the Legislature. Inter related is the issue as to whether or not the Divisional Court overruled In Re Haughey and Ardagh v. Maguire .
The interests of justice are engaged also as the Divisional Court ruled against the applicant, while finding that she had been damaged professionally and personally by the actions of the PAC, but that there was no legal remedy for the wrongs perpetuated.
The Constitution guarantees to vindicate the personal rights of citizens, and to protect citizens against unjust attack. In the circumstances, the issue of safeguarding such rights meets the criteria of the interests of justice in this application.
…
The Court is satisfied that exceptional circumstances do exist in this case. The issue of general importance which has been identified is, substantially, a net if very important issue of constitutional law. While there may always be some advantage to obtaining the views of the Court of Appeal on such issues, the Court is satisfied that this is one of those cases where the importance of coming to an early resolution of the constitutional issues raised outweigh any advantage which might be obtained by an intermediate appeal to the Court of Appeal. Furthermore, it is unlikely that the issues, in the circumstances of this case, will in any way be narrowed by such an intermediate appeal.
Thus, the Court determines that the application of the applicant satisfies the criteria established in the Constitution. Consequently, the Court will grant leave to the applicant to appeal directly to this Court."
5.3 In addition, leave to appeal was granted in relation to two applications for leave made separately by the PAC and by the sixteenth and seventeenth named respondents ("the State respondents"), both of which related to certain costs matters. Those issues have been left over for further consideration after the substantive issues considered in this judgment have been decided.
6. The Issues
(i) An Initial Observation
6.1 On one view there may be a question as to the extent to which any of the issues (other than those relating to damages) which potentially arise truly remained alive by the time that these proceedings were commenced, or in any event were heard, by virtue of the fact that, by that time, it was clear that the PAC did not intend to continue with a further consideration of the issues which lie at the heart of the inquiry giving rise to these proceedings. However, there is no doubt that the PAC engaged in an inquiry into matters concerning Ms. Kerins, invited her to attend before it and engaged in questioning of her. On Ms. Kerins' case, the courts are entitled to review at least some of the actions taken by the PAC in that regard and consider whether they were lawful whether having regard to the Constitution or otherwise. On that basis it is said that Ms. Kerins is entitled to a remedy in respect of the actions actually taken by the PAC, even though it was clear, by the time the proceedings came to be determined, that those actions had ceased. On the other hand, it is argued on behalf of the PAC (supported by the State respondents) that the Divisional High Court was correct to hold that all of these matters were outside the scope of issues which the courts are entitled, having regard to the separation of powers, to consider.
6.2 However, notwithstanding the opposite positions adopted by the parties, it remains possible that the courts may have jurisdiction in certain circumstances and for the purposes of providing certain types of remedies, but not in other circumstances or to provide other types of remedies. Against that backdrop it may be necessary to return to the question of the importance, if any, of the fact that the PAC had brought its enquiries to a close by the time the case came to be determined in the High Court. Depending on the answer to the question of the extent to which there is an absolute barrier placed by the Constitution in the way of the courts considering issues such as those raised by Ms. Kerins, that factor may or may not come to play some role in the proper disposition of this case. However, it is a question to which it might be necessary to return after other issues are decided.
(ii) Is there an Absolute Barrier?
6.3 In essence, the decision of the Divisional Court was to the effect that the Constitution provided an absolute barrier to the Court considering the issues which Ms. Kerins sought to litigate. That question involves a number of subsidiary issues, but it seems to this Court that the overall question raised by that issue needs to be first determined, for if the Divisional Court was correct in its determination in that regard no further questions need or should be addressed.
6.4 Furthermore, there is both a constitutional and a statutory aspect to the issue. It is clear that, if the PAC and the State respondents are correct in their contention that there is an absolute barrier, then it applies irrespective of whether its source can be found in the Constitution or in statute. However, different questions may well arise depending on whether, respectively, the Constitution or statute may be said to provide such a barrier. In those circumstances it is appropriate to separately consider under this heading the issues which arise under respectively the Constitution and statute.
(ii)(a) The Constitution
6.5 The starting point has to be to identify the relevant constitutional provisions which are to be found in Articles 15.10, 15.12 and 15.13 of the Constitution, and which are in the following terms:
Article 15.10 provides:-
"Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties."
Article 15.12 provides:- "All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged."
Article 15.13 provides:- "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."
6.6 Article 15.10 permits each House of the Oireachtas to make rules and standing orders and to attach penalties for infringement. That Article also confers on each House the power to "ensure freedom of debate". There are questions, therefore, as to whether the combined effect of those provisions confines any limitation on freedom of debate within the boundaries fixed by rules and standing orders subject only to penalties for breach provided in those rules and standing orders. On the other hand, it is argued that Article 15.10 does not, in and of itself, prevent a citizen, who complains about having been affected by allegedly unlawful actions taken by members of a House, from having a remedy in the courts.
6.7 Article 15.12 confers a privilege on official reports and publications and "utterances made in either House". Issues arise both as to the precise nature of the privilege thus conferred and as to whether an utterance made in a committee of either House can be said to have been made in the House concerned. Obviously, all of the actions which fall for potential consideration in these proceedings occurred in a committee of the Dail being the PAC. Thus, if utterances made in a committee do not come within the ambit of Article 15.12, then the constitutional privilege attaching to utterances covered by that Article has no relevance to these proceedings.
6.8 Article 15.13, amongst other things, specifies that members of the Oireachtas are not to be "amenable to any court or any authority other than the House itself" in respect of utterances in either House. The question of whether statements made at a committee come within the ambit of that sub-Article arise in just the same way as they arise in respect of Article 15.12. There are also issues concerning the meaning of the phrase "shall not be amenable".
6.9 In addition, there are questions concerning whether there may be any exception to any constitutional immunity or privilege conferred in the context of an egregious breach of rights having regard to the decision of this Court in Callely . It might also be argued that a persistent failure on the part of the Oireachtas to engage with the protection of the rights of citizens, potentially affected by the conduct of its business, could come within a Callely type exception.
6.10 In summary, it seems that the following matters may need to be considered: Is an utterance made at a committee an utterance for the purposes of Article 15.12 and 15.13; if so then what is the scope of any non-amenability or privilege as conferred by the Articles concerned; does the power conferred on the Houses of the Oireachtas by Article 15.10, to ensure freedom of debate, limit the jurisdiction of the courts to interfere and, if so, what are the limitations imposed; and if there is an exception to any limitation based on egregious or, perhaps, persistent breach of rights.
6.11 Next it is necessary to consider the statutory position.
(ii)(b) Statute
6.12 The relevant legislation for the purposes of the present analysis is the 2013 Act. In particular, s. 92 of that Act provides:-
6.13 Clearly, that statutory provision applies expressly to a committee of the Houses so that the issue as to whether the statutory limitation on the power of the Court to interfere applies to committees does not arise in the same way as the equivalent question arises in respect of the constitutional limitation. On one view it might be said that the question of the applicability of any constitutional immunity to committees is irrelevant if the same immunities are, in substance, conferred by statute.
6.14 That might appear to be so, but only if there is no distinction between the immunities provided for in the Constitution and those provided by statute. To the extent that there may be any such distinction then the question of the applicability of constitutional immunities to committees of either or both Houses remains relevant.
6.15 Thus, there is a link between issues concerning the scope of any immunity conferred by statute and the question of whether the constitutional immunities to be found in Article 15 apply to committees. There can be little doubt but that the wording of s. 92 follows closely from the wording of Article 15.13 of the Constitution. However, questions remain as to the scope of the statutory immunity in comparison with the scope of any constitutional immunity. There are two reasons why such questions arise. First, there is the question of the constitutional immunities which may be said to arise under Articles 15.10 and 15.12 (whose language is not repeated in the statute). Second, there may be questions as to the proper interpretation of a statutory provision having regard to the protection of constitutional rights of persons who are not members of the Oireachtas, which may not apply, or at least may not apply in the same way, as in a case where a privilege or immunity derives directly from the Constitution itself.
6.16 Clearly, if the answers to the questions just addressed are to the effect that there is an absolute barrier to the entitlement of a citizen, such as Ms. Kerins, to raise the issues advanced in these proceedings, whether deriving from the Constitution or by statute, then the Divisional Court was clearly correct and no further issues arise. However, in the event that there may not be an absolute barrier or at least an absolute barrier in all circumstances, then further questions arise. It is next, therefore, appropriate to set out those consequential issues
(iii) Consequential Issues
6.l7 As noted earlier, one of the questions which arises in relation to the immunities conferred on the Oireachtas and its members, whether by the Constitution or by statute, is as to the precise extent of any such immunity. To the extent that it may be held that immunities arise in some but not all circumstances, or in respect of some but not all matters, then it follows that it will be necessary to analyse the contentions made on behalf of Ms. Kerins to determine whether they fall within or without the limitations of the immunities conferred.
6.18 To the extent that any of the matters alleged by Ms. Kerins might be found to come outside the scope of any immunity conferred then it will, of course, in principle be necessary to determine, on the merits, whether Ms. Kerins' case is well made out. However, in that context there is a possible difficulty which derives from the fact that the Divisional Court did not reach final conclusions in respect of many matters alleged because of the view taken by that Court that the Constitution prevented the courts from having jurisdiction in such matters. The extent to which it would be appropriate for this Court to make findings of fact in the circumstances of this case, and in the absence of findings by the Divisional Court, clearly has the potential to arise in the event that this Court determines that at least some of the matters alleged by Ms. Kerins are justiciable.
6.19 At the level of greater detail there is a question as to whether it is permissible for a court to look at comments made by a member of a committee such as the PAC for the purposes of determining the nature of the proceedings being conducted by that committee. In that context, questions might well arise as to whether it is appropriate to take a view as to the nature of the proceedings of a committee as a whole, including the manner in which the proceedings were managed by the chair, for the purposes of characterising the nature of the proceedings. The proper approach in such a circumstance might arguably be different to one where it was sought to place reliance on a particular "utterance" of a single member or a small number of "utterances" from a minority of members, particularly where the chair sought to impose appropriate limitations. It is arguable that, and therefore there is an issue as to whether, it may be permissible for a court to look generally at what was said by members of a committee (including letters sent on behalf of the committee and other documents generated by it) for the purposes of determining what action was being taken by a committee, even if it might not be permissible for a court to place reliance on an individual utterance for the purposes of providing an aggrieved party with a remedy.
6.20 If the answer to that last question is that the Court can look at the conduct of the proceedings of the PAC generally, then questions may arise as to how it is appropriate to characterise the nature of the hearings in this case and, possibly, whether those hearings were conducted outside of the remit of the PAC as defined by the Dail. In that latter context, there is a further question as to whether the courts have any business in considering whether a particular committee acted outside of its remit in circumstances where there was no doubt that the Dail itself (or the Seanad or both Houses) could have dealt with the matter concerned. If a matter is within the general and broad remit of the Houses of the Oireachtas then there is an argument to the effect that a division of responsibility, by the conferring of the power to conduct certain aspects of the legitimate business of the Houses on a specified committee, is peculiarly a matter for the Houses themselves and not a matter for the courts.
6.21 Apart from those matters of detail there are two further issues which may potentially arise depending on the answer to some of the earlier questions. The first of those concerns the question of whether there is a Callely type exception.
(iv) Is there a Callely type Exception?
6.22 The majority view of this Court in Callely , while accepting that the internal discipline of members of the Houses of the Oireachtas in accordance with standing orders was not a matter within the competence of the courts, did suggest that there might be circumstances where a departure from constitutional norms was so great that a court might be entitled to intervene to protect the overall constitutional structure. A question arises as to whether a similar exception applies in the context of any immunity which may be found to potentially debar a citizen, not a member of the Houses of the Oireachtas, from seeking a remedy for what goes on within the Houses. It has often been said, not least in Callely itself, that the fact that there may be areas where the courts do not have competence to interfere does not mean that parties do not retain constitutional rights. The logic behind those statements is that citizens must look to the Houses themselves to enforce their constitutional rights in such circumstances. However, there is an argument, and therefore an issue, as to whether the courts may have a residual role where there is either a particularly egregious breach of a citizen's rights in respect of which the Houses themselves appear to take no action, or if it could be established that there was a systemic failure on the part of the Houses to take any action to protect the constitutional rights of citizens.
6.23 Clearly, if there is such an exception then it would also be necessary to consider whether the circumstances of this case would give rise to what would, undoubtedly, be an unusual and exceptional jurisdiction on the part of the courts.
6.24 The final matter which arises concerns remedy.
(v) Remedy
6.25 In one sense the question of what remedies may be available in proceedings such as this is inextricably linked with the scope or extent of any immunities conferred on the Houses of the Oireachtas whether by the Constitution or by statute.
6.26 Ultimately, all legal proceedings are concerned with whether there is some remedy which the court can provide even if that remedy is only to indicate a legal position relevant to the interests of the parties, whether in the form of a formal declaration or even in a less formal way having regard to the respect which one organ of the Constitution must pay to others. (See, for example, McMenamin v. Ireland [1996] 3 I.R. 100).
6.27 It follows that ultimately, but only to the extent, if any, to which the courts may be found to have jurisdiction, the final issue will be about remedy. However, it seems to the Court that there is such a close connection between questions concerning remedy and questions concerning the scope of any privilege or immunity enjoyed by the Houses of the Oireachtas, that it is more appropriate to consider any issues relevant to remedy in the context of a consideration of the scope of the privileges and immunities of the Houses.
6.28 The Court has set out those issues in some detail for they provide a road map to the proper approach of the Court to considering the issues which arise on this appeal. As already noted, the first issue which logically arises is as to the extent of any absolute barrier to justiciability which is conferred by the Constitution. It is therefore appropriate to turn to that issue. On that basis the Court will turn first to the issue as to whether the privileges or immunities of the Houses of the Oireachtas attach to any committees established by those Houses for if they do not, then any barrier to justiciability arising on the facts of this case can only be found in statute.
7. The Position of Committees
7.1 Each of the constitutional provisions which potentially give rise to a privilege or immunity makes express reference to the rights and position of the "Houses of the Oireachtas". Article 15.10 speaks of each House having rule making powers and the power to ensure freedom of debate. Article 15.12 refers to the privilege attaching to official reports including those of either House and utterances made in either House. Article 15.13 refers to non-amenability arising "in respect of any utterance in either House".
7.2 Whatever may be the limits, if any, of the privileges and immunities conferred by those Articles, they clearly relate to matters concerning each House of the Oireachtas. The question which arises is as to whether the Divisional Court was correct to hold that the fact that the events which were potentially under scrutiny in these proceedings occurred in a committee did not bring those matters outside the scope of the privileges and immunities conferred.
7.3 Can, for example, a statement made in a committee be an utterance made in a House for the purposes of Article 15.12 or 15.13?
7.4 The argument in favour of treating committees as having the same privileges and immunities as the Houses themselves stems from the fact that a House or the Houses collectively may choose to conduct legitimate constitutional business through the work of a committee. In that context, it must be recalled that the constitutional role of the Oireachtas is not confined to the pure task of legislation. Undoubtedly, the consideration, and if thought appropriate, the passage of bills which propose to amend the law represents a core function of any legislature. However, the Oireachtas also has a key function in holding the executive to scrutiny and also in providing representation for the public in the political sphere.
7.5 In the core legislative function it is regularly the case that a detailed consideration of proposed legislation is entrusted to an appropriate committee which has the power to amend the legislation concerned subject only to the overall view of the relevant House of the Oireachtas when the matter comes back, after the committee stage, for report and final decision. Sometimes, of course, the so-called committee stage may be conducted before a committee of the full House concerned.
7.6 On that basis it is argued that it would be strange indeed if a statement made by a deputy in respect of a speech during a committee stage of the passage of a particular piece of legislation would be deprived of whatever immunities and privileges might attach to exactly the same speech made at either an earlier or later stage of the legislative process in the House itself.
7.7 Likewise, it is argued that the raising of issues or tabling questions in either House forms part of the constitutional role of those Houses. On that basis it is said that, if the House or Houses concerned choose to conduct that business through the medium of a committee, it would be strange indeed if comments made at a committee carrying out business, which could just as easily be done in the chamber of the House concerned, were to lose any privileges or immunities which would undoubtedly apply if the matter had not been referred to a committee.
7.8 There is, in the Court's view, considerable force to those arguments. There is one matter which might, however, point in the opposite direction. It is clear that there is something of a distinction between the language of Article 15.12 and Article 15.13 insofar as they relate to utterances. Article 15.13 provides for non-amenability in respect of utterances made by members in either House. The privilege provided for in Article 15.12 applies simply to "utterances made in either House" and is not, at least in its terms, confined to utterances made by a member of the House concerned.
7.9 It is, of course, the case that committees frequently hear from persons who are not members and who may be invited to attend a meeting for a whole variety of purposes. On the face of it, the constitutional privilege arising under Article 15.12 applies equally to utterances of non-members at a committee provided that utterances at committees attract the same privilege as utterances in the House concerned.
7.10 The fact that it may be relatively common to find non-members contributing at committees, but not in the Houses themselves, might be argued to suggest that the relevant immunities and privileges were not intended to apply to committees and thus extend potentially to non-members.
7.11 However, there is, in the Court's view, an alternative view. While it may, in practice, be commonplace for non-members to appear at committees and highly unusual for non-members to speak in the Houses (distinguished international visitors being a potential exception) there is no absolute constitutional rule which distinguishes between the possibility of a non-member being invited to participate in committees but not in a House of the Oireachtas itself. There are, doubtless, all sorts of reasons both of practicality and of principle which support the current practice. But that practice is a matter for the Houses. If the Houses wish to invite persons to address them directly then they would be free to adapt standing orders to permit this in whatever circumstances might be deemed appropriate. The fact that it does not happen in practice and that there might be very good reason why the Houses would choose not to allow it to happen does not mean that there is any constitutional bar on non-members being permitted to make utterances in the Houses themselves.
7.12 Next, it is important to note that the extension of privilege to non-members, which appears to be implicit in the wording of Article 15.12, also relates to the conferring of privilege on the subsequent publication of reports of utterances. It will be necessary to return to the extent of the privilege provided for in Article 15.12 in due course. However, it is important to note that at least a main focus of that Article is to allow for the safe publication of what happens in a House and thus provide protection for those who may report on the business of the House concerned.
7.13 In that sense it can be said that at least a principal focus of Article 15.12 is to enhance public knowledge of what happens in the Houses in much the same way as the privilege which attaches to fair reporting of what happens in courts enhances public knowledge of the conduct of the business of the judicial arm of government. That is not to say that the privilege attaching to, respectively, utterances in the Houses and evidence or statements made in court, is designed solely to protect reporting. The privilege attaching to the business of a court is designed to remove what might otherwise be considered to be an impediment to the free conduct of judicial proceedings which might arise if persons participating in those proceedings were to be concerned that what they said might lead to further litigation. Likewise, the privilege conferred by Article 15.12 is undoubtedly designed to contribute to freedom of debate.
7.14 However, at the end of the day, the Court does not consider that the fact that the privilege conferred by Article 15.12 might, in practice, extend much more readily to non-members, if that privilege is considered to apply in the case of utterances made at a committee as well as in the House itself, provides a sufficient basis for holding that a committee does not enjoy the same immunities and privileges as the House or Houses which establishes it.
7.15 It is ultimately a matter for the Houses of the Oireachtas to decide how they carry out their business; whether certain aspects of their constitutional role should be conducted in the House itself or allocated to a committee. Ultimately, it seems to the Court that, where a committee is entrusted with carrying out a legitimate part of the constitutional function of a House or Houses of the Oireachtas, then that committee is "the House" for the purposes of Articles 15.10, 15.12 and 15.13 of the Constitution. It is a part of the House duly entrusted with carrying out the constitutional role of the House and, whatever may be the extent or limits on the privileges and immunities conferred by the relevant Articles, the committee enjoys them to the same extent as the House itself.
7.16 Ms. Kerins argued that, nevertheless, the provisions of Article 15 should be narrowly construed and limited to utterances made in proceedings in the Houses themselves. It was also argued that the enactment of s. 92 of the 2013 Act, extending privilege to utterances in committees, could only be viewed as consistent with the position that Article 15 did not itself extend to utterances or other proceedings of the Houses of the Oireachtas when sitting in committees. If so, any privilege was statutory only and had then to be construed by reference to, and tested against the provisions of, the Constitution including the personal rights guaranteed by, in particular, Article 40.
7.17 It should be said that this argument, while plausible, faces formidable obstacles. As long ago as 1808, it was held by the Supreme Court of Massachusetts in Coffin v. Coffin (1808) 4 Mass. 1, that the constitutional privilege extended to members when sitting in a committee:
"If a member, therefore, be out of the chamber, sitting in committee, executing the commission of the House, it appears to me that such members within the reason of the article, and ought to be considered within the privilege. The body of which he is a member, is in session and he, as a member of that body, is in fact discharging the duties of his office. He ought, therefore, to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his functions, as a representative, in committee, either in debating, in assenting to, or drafting a report."
7.18 In Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227 Geoghegan J. agreed that the predecessor provision to s. 92 contained in the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976 had been enacted ex abundante cautela and that Article 15.13 would probably have covered utterances before committees without legislation. This view appears to have been accepted by the editors of Kelly, The Irish Constitution, 4th Ed., (Dublin, 2003), at paragraph 4.2.143. In Callely , O'Donnell and Clarke JJ. cited with approval the observations in Casey, Constitutional Law in Ireland , 3rd Ed., (Dublin, 2000), to the effect that it appeared to be generally accepted that the reports of a committee of a House or the Houses was entitled to the same status and privilege as a report of the Oireachtas itself.
7.19 The Court has also considered the report of the Attorney General's Committee on the Constitution of August 1968. That committee was set up to advise the Attorney General on matters arising out of the Oireachtas All Party Committee Report on the Constitution of 1967. The Attorney General's Committee contained a formidable range of legal expertise including but not limited to Mr. Justice Brian Walsh, Mr. Justice John Kenny, John A. Costello TD, SC, Thomas Connolly SC, Nial McCarthy SC, Anthony Hederman SC, Liam Hamilton SC, Donal Barrington BL, Matthew Russell BL, and Professor John M. Kelly. The Oireachtas Committee had asked for an opinion on the specific question of whether Article 15.12 gave privilege in respect of utterances by the Public Accounts Committee. The Attorney General's Committee advised that "a committee of the House is the alter ego of that House and has no constitutional existence separate from the House. It would be odd if official committees' publications were not privileged until adopted when both utterances of each House and utterances in each House by members are privileged (Article 15.12 and 15.13 respectively). It was considered therefore that committees are part of the House establishing them for this purpose, and that their official reports and publications and utterances made in committees are privileged".
7.20 Given that almost by definition there is a relative scarcity of judicial decision and academic commentary on the precise legal limits of parliamentary privilege, this is an impressively consistent approach to the question. However, the same result could also be reached as a matter of first impression. While it is the unavoidable task of the courts under the Irish Constitution to enforce the sometimes difficult line between rights of the citizen and the privileges and immunities of the Oireachtas, that is not in any sense a process of unilateral limitation of parliamentary power. Where a privilege applies for the purpose contemplated by the Constitution, it is the obligation of the Court to give such privilege full and indeed generous application. It is apparent, for the reasons first identified in Coffin in 1808, that committees form an essential part of the workings of parliament and increasingly so in modern times. A member of the Oireachtas is discharging the duties of his office and is entitled to the privileges of that office within the boundaries set by the Constitution. The values underpinning Article 15 are therefore consistent with an interpretation which treats utterances in a committee as within the privileges and immunities conferred by Article 15.
7.21 There is, however, one further issue connected with the position of committees to which it will be necessary to return later in the course of this judgment. The underlying principle identified by the Court is that a committee doing the business of a House enjoys the same privilege and immunities as the House which entrusted it with doing that business in the first place. But a question potentially arises as to the applicability of that principle in a case where a committee acts outside the scope of its remit. In such circumstances the argument that the committee enjoys the same privileges and immunities as the House is undoubtedly weakened, for it is not carrying out a task entrusted to it by the relevant House or Houses but rather has exceeded its remit and is dealing with matters which are, in fact, none of its business. The argument in favour of a committee enjoying the relevant privileges and immunities in those circumstances is undoubtedly weaker.
7.22 As was noted earlier, there was an issue in this case as to whether the PAC did actually exceed its remit in dealing with many of the matters addressed to Ms. Kerins on the occasion in question. It is clear that the CPP considered that the PAC had, indeed, exceeded its remit, for it relied on that very fact to decline compellability powers. However, the question for this Court is as to whether it is open to the Court to consider whether a committee has exceeded its remit and if so finding whether by so doing it could be held that a committee had lost the privileges and immunities which the Constitution might otherwise confer. On the other hand, as noted earlier, there may be an argument as to whether questions concerning the remit of committees are quintessentially matters for the Houses provided that the House concerned could have conferred a relevant jurisdiction on the relevant committee. All of these are issues to which it will be necessary to return.
7.23 The next over-arching issue to which it is necessary to turn is the question of the extent to which it is possible for a court to consider evidence about what was said either at a committee or by the committee in the form of correspondence for the purposes of determining what a committee was actually doing. In reality that question concerns the extent to which the taking of evidence about what happened at a committee might itself be a breach of constitutional privileges and immunities.
8. Can the Court Hear Evidence of What Happened at a Committee
8.1 The issue which arises under this heading is as to the extent, if any, to which the Courts can hear evidence of what was said in a House or Houses of the Oireachtas (including a committee) or of the contents of documents emanating from those bodies for the purposes of determining and characterising what acts were being done by the body in question. On one view it might be said that a consideration of "utterances" which attract both privilege and non-amenability would be a breach of the very immunities conferred by Articles 15.12 and 15.13. On that basis it might be argued that hearing evidence about what was said, presumably for the purposes of reaching conclusions of fact which might potentially be adverse to the speaker, is in substance to breach the privilege or non-amenability specified in the Constitution.
8.2 However, it is of some considerable importance to assess whether that view is compatible with the consistent jurisprudence of the courts going back almost fifty years to In Re Haughey and continuing through cases such as Abbeylara, Callely and Curtin v. Dail Éireann [2006] 2 IR 556.
8.3 There were, of course, in some of those cases questions as to the extent to which some of the issues sought to be raised were themselves justiciable. It does not follow from the fact that a court may be entitled to look at what was said in the Oireachtas, for the purposes of determining what was being done by the Oireachtas, that the Court necessarily has any jurisdiction, at the end of the day, to assess whether what was being done was lawful. The question of whether it is permissible for a court to consider utterances as evidence which would enable the Court to assess what action the Oireachtas was engaged in is a separate question to whether the Court is entitled to review that action having regard to the separation of powers. In this section of this judgment the Court is not, therefore, considering whether, or on what basis, the actions of the Houses may be reviewed by a court. Rather, the Court is considering the narrower question of whether there is any barrier to the Court considering evidence and reaching conclusions about what those actions actually were, where the evidence concerned amounts to utterances made in the Houses or their committees or documents emanating from those bodies. It is against that narrower backdrop that it is necessary to look at the evidence that was considered in the cases to which reference has been made and the conclusions of fact which were reached as a result of that evidence.
8.4 In re Haughey concerned an examination by the PAC itself of the expenditure of a certain grant-in-aid for Northern Ireland relief and any monies transferred by the Irish Red Cross Society to a bank account into which monies from that grant-in-aid were lodged. On the 23rd December 1970, the Oireachtas passed the Committee of Public Accounts of Dail Éireann (Privilege and Procedures) Act 1970 ("the 1970 Act"). Section 3(4) of the 1970 Act provided that, if any witness before the committee refused to answer any question to which the committee might legally require an answer, the committee might certify the offence to the High Court and the High Court might, after such inquiry as it thought proper, punish the witness as if they had been guilty of contempt of the High Court. Serious accusations were made against Mr. Haughey before the PAC by another witness. Mr. Haughey subsequently attended before the PAC but refused to answer any questions. The chairman of the PAC certified that an offence under s. 3(4) of the 1970 Act had taken place. Mr. Haughey was sentenced to six months' imprisonment by the High Court. Mr. Haughey appealed that conviction to this Court.
8.5 This Court had clear regard to evidence of what took place before the PAC and, based on this evidence, made certain factual findings. This can be seen in the second set of judgments of the Court, in particular the judgment of Ó Dalaigh C.J., concerning the grounds of appeal raised by Mr. Haughey which did not relate to the constitutionality of the 1970 Act (that issue being the focus of the first, sole judgment of the Court). First, reference should be made to Mr. Haughey's complaint that the certificate made under the hand of the chairman of the committee was not made with sufficient particularity, in that it gave no particulars of the questions which Mr. Haughey had allegedly refused to answer (this being the behaviour which constituted an offence under the 1970 Act). Ó Dalaigh C.J. made the following observations in this context:-
"The certificate is the only document in which will be found the complaint that the witness has to answer. It should, therefore, furnish all necessary particulars. In this instance these should include the question or questions which it is alleged the witness refused to answer and, coupled with this, an assertion that the Committee could legally require an answer to such question or questions. The transcript of the proceedings discloses that when Mr. Haughey had made his preliminary statement and had dialogue with the chairman of the Committee, the Committee retired and, after an interval of about three-quarters of an hour, it resumed its public sitting and thereupon the chairman put certain questions to Mr. Haughey with the object of reminding him of the possible consequence of his refusal to answer them, and then the chairman asked him two specific questions to which the chairman failed to elicit answers. The chairman, it would appear, thought it necessary—and correctly so—to have on record the specific questions which were put, together with the refusals to answer them, for the purpose of certifying an offence under sub-s. 4 (b) of s. 3 of the Act; of 1970 . This point does not appear to have been pursued in any great detail in the High Court where the view was erroneously taken that Mr. Haughey's initial statement, in which he indicated that he would not answer questions for the reasons which he gave, constituted an offence under sub-s. 4 (b ). If this conduct constituted an offence, it fell to be dealt with under sub-s. 4 (d) which makes it an offence to do anything which would be contempt of court if the Committee were a court of justice having power to commit for contempt. The offence created by sub-s. 4 (b) is the offence of refusing to answer questions to which the Committee may legally require an answer. Quite clearly the Committee is not legally entitled to an answer to any question which is not relevant to the proceedings and which is not within its terms of reference; before anyone can be convicted of a refusal to answer a question, contrary to sub-s. 4 (b), the court would have had to be satisfied that the question put was relevant and within the terms of the inquiry. The court could not so satisfy itself unless a specific question, or questions, has or have first been put."
(Emphasis added)
8.6 Also of relevance is the analysis of Ó Dalaigh C.J. in relation to Mr. Haughey's complaint that his rights under Article 40.3 of the Constitution were, or would be, disregarded having regard to the procedures of the PAC. At p. 261, Ó Dalaigh C.J. summarised Mr. Haughey's complaint in this regard as follows:- "As to the procedures of the Committee, Mr. Haughey's complaint is that in the special circumstances in which he found himself a witness, the procedures of the Committee failed to protect his rights under Article 40 of the Constitution. The procedures determined upon by the Committee in its interim report of the 1st December, 1970, by clause (iii) provide, inter alia , that:—‘the Committee will allow witnesses to be accompanied solely for the purpose of consultation by counsel, solicitor or advisers, as may be determined by the Committee in each relevant case. Such counsel, solicitor or advisers will not, however, be permitted to examine any witness nor to address the Committee.'"
8.7 The judgment went on to set out certain facts regarding the conduct of the proceedings before the Committee. It is worth quoting these passages in full:- "The special circumstances in which Mr. Haughey appeared before the Committee were these. A week earlier, at the public sitting of the Committee on the 9th February, 1971, evidence was given by Chief Superintendent John P. Fleming. The Chief Superintendent at the outset explained the nature of the evidence which he proposed to give: all his information was, he said, from confidential sources which he was not at liberty to reveal. In terms of the law of evidence the entire of the evidence which he was about to offer was hearsay evidence.
The evidence in question purported to indicate (i) that Mr. Haughey had paid over money to the Chief of Staff of the I.R.A. in London; (ii) that Mr. Haughey was deeply involved in meetings with a certain I.R.A. Leader after August or September and in promising funds for the I.R.A. in the North; (iii) that Mr. Haughey made all the arrangements at Dublin Airport sometime early in October to take in a consignment of arms and handed same over to two leading I.R.A. men; (iv) that Mr. Haughey went to London on the 16-17 November, 1969, for the purpose of purchasing arms; (v) that Mr. Haughey or Captain [ name given ] could well have been involved in other arms shipments.
As to item (iii), when asked if he had any knowledge of the source of the moneys which paid for the arms, the Chief Superintendent said:—‘I imagine it came from the grant-in-aid fund.' As to item (v), relating to the other arms shipments in which Mr. Haughey may have been involved, the witness said that he had no direct evidence and that ‘it was speculation or rumour .' The italics are mine."
8.8 After setting out the foregoing, the Court then characterised Mr. Haughey's position, and the conduct of the proceedings by the PAC, in the following terms, at p. 262 of the report:- "Therefore, the position of Mr. Haughey was that at a public session of the Committee held on the 9th February, 1971, he had been accused of conduct which reflected on his character and good name and that the accusations made against him were made upon the hearsay evidence of a witness who asserted that he was not at liberty, and therefore was not prepared, to furnish the Committee with the names of Mr. Haughey's real accusers. The question which arises in these circumstances is what rights, if any, is Mr. Haughey entitled to assert in defence of his character and good name? It should be noted that, in the statement which he read to the Committee on the 17th February, 1971, he denied on oath that he had been connected, in any way, with the expenditure of moneys issued out of Subhead J of Vote 16."
8.9 Later, at p. 263, Ó Dalaigh C.J. stated:- "In my opinion counsel is right in his submission that Mr. Haughey is more than a mere witness. The true analogy, in terms of High Court procedure, is not that of a witness but of a party. Mr. Haughey's conduct is the very subject matter of the Committee's examination and is to be the subject matter of the Committee's report."
8.10 It is true that regard has to be had to the fact that, in In Re Haughey , the jurisdiction of the Court was necessarily involved, for the relevant legislation required the matter to be brought before a court before an order could be made. In that sense it might be said that the legislation itself necessarily conferred on the courts a role in assessing the conduct of the proceedings before the PAC in that case. On the other hand, a reading of the judgments does not suggest that this was the sole, or even the predominant, reason why the courts took the view that they were entitled to assess the lawfulness of the procedures adopted. On that basis, and while acknowledging the particular statutory regime which was under consideration in the case, the Court does consider that it is necessary to have proper regard to the reasoning of this Court in Re Haughey in assessing whether the jurisprudence supports the argument put forward on behalf of the PAC and the State respondents to the effect that the narrow range of justiciability and factual review which is constitutionally permitted is confined, in substance, to cases where the coercive power of the State is applied to citizens.
8.11 In Abbeylara , the background to which has been set out briefly above, it is also clear from the judgments of this Court that the Court saw no impediment to examining the output of the sub-committee to determine what sort of activity that committee was engaged in. For example, Denham J., under the heading "Nature of Inquiry", stated as follows:-
"The nature of the inquiry in issue was described by the High Court. I summarise their findings. On the 19th/20th day of April, 2000, an incident occurred in Abbeylara, County Longford, during which Mr. John Carthy was shot dead by a garda or gardaí. Chief Superintendent Culligan submitted a report to the Garda Commissioner on the 28th June, 2000. The Garda Commissioner reported to the Minister for Justice, Equality and Law Reform. The Minister placed the report before Parliament which referred it to a Joint Committee of both Houses. The Joint Committee considered it and submitted it to both Houses. The report was published. Submissions were invited and received by the Joint Committee. On the 8th of March, 2001 the Joint Committee purported to establish a sub-committee. It is that reference and the work of that sub-committee which is the subject of this judicial review. The High Court held that it was quite clear that the sub-committee perceived its task as being one requiring it to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact as in the opinion of the sub-committee arose directly or indirectly from oral or documentary evidence."
8.12 Denham J. continued:- "Those findings, if considered appropriate, could include a finding of the unlawful killing of Mr. Carthy by an identifiable garda or gardaí. The gardaí have been compelled to attend and give evidence. A failure to attend and comply could have the consequences set out in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. In these circumstances the sub-committee saw itself as having an adjudicative function, that it was entitled to make findings on the evidence tendered before it. All of the applicants are members of the Garda Síochana who have been directed to attend before the sub-committee in order to give evidence to it. Amongst the applicants are the officers who shot Mr. Carthy. The considerations of this committee may give rise to findings of fact or to conclusions which could adversely affect or impugn the good name of any person, including the gardaí. The Committee could conclude that an unlawful killing took place by an identifiable garda or gardaí."
8.13 McGuinness J., in analysing the extent to which the Abbeylara sub-committee fell within the ambit of the inherent power of the Oireachtas to acquire information in aid of its constitutional functions, set out a detailed account of the nature of the sub-committee:- "The terms of reference of the Abbeylara Sub-committee on the other hand at no stage contained any reference to either the amendment of existing legislation or the promotion of new legislation. It might conceivably be argued that the original resolutions of the Houses, which directed the main Committee and its Sub-committee to consider the report of Superintendent Culligan and the submissions received concerning it, could be directed towards possible proposals for legislative change concerning the structure, management and control of the Garda Siochana. It is, however, a strained interpretation and as matters developed the Sub-committee moved further away from this legislative purpose. It is abundantly clear from the statements made by the members of the Sub-committee, the powers with which they had provided themselves, and the programme which they had laid out for their inquiry, that they did not see themselves as having a legislative purpose. By no stretch of the imagination could the type of inquiry which the Abbeylara Sub-committee actually intended to carry out be described as primarily, or indeed even peripherally, directed towards producing proposals for legislation. The type of inquiry which the Sub-committee envisaged is clearly shown not only in the amended Terms of Reference and the extended powers which it acquired but also in the public statements made by its members to the media and in the very transcripts of its proceedings. The Sub-committee could not and did not, of course, administer justice, but it clearly saw itself as having an inquisitorial and adjudicative role in relation to the culpability of individuals, in particular individual Gardai. Its self-appointed task was to find the facts and to attribute blame by way of a public and deliberately publicised procedure."
8.14 Perhaps an even clearer example of this approach can be seen in the judgment of Hardiman J. in Abbeylara . Under the heading "Issues in the Inquiry", Hardiman J. referred to a document produced by the sub-committee in that case entitled "Statement of Issues and List of Witnesses". Hardiman J. went on to refer to specific questions asked by members of the sub-committee to witnesses. Hardiman J. relied on the foregoing, amongst other things, to reach a conclusion as to the nature of the inquiry being undertaken by the sub-committee. It is important to note that Hardiman J. appeared to view this as a logically prior step before continuing on to consider whether the inquiry was authorised in law, stating, "Having ascertained the nature of the proposed inquiry it is possible to pose this question." A similar approach is evident in the other judgments of this Court in Abbeylara .
8.15 Reference might also be made to the judgment of this Court in Curtin . That case concerned a proposal to remove a judge from office by means of a resolution of both Houses of the Oireachtas, pursuant to standing orders purporting to apply Article 35.4.1 of the Constitution. The judge in question sought to challenge, amongst other things, the constitutionality of the procedures adopted by a joint committee established for the purposes of taking evidence in relation to his proposed removal from office. The judge also challenged the constitutionality of certain legislative amendments which gave the joint committee in question the power to order that evidence be produced. Of relevance to the present judgment is the detailed description of the activities of the joint committee to be found in the judgment of this Court delivered by Murray C.J., under the heading "Proceedings of the Joint Committee". This section of the judgment includes descriptions of correspondence sent by the joint committee and certain events during proceedings before the committee. This is in line with the approach of this Court in In re Haughey and Abbeylara .
8.16 Finally, reference should be made to the judgments of this Court in Callely and in particular the joint judgment of Clarke and O'Donnell JJ., referred to earlier. Callely concerned allegations of impropriety regarding the manner in which Senator Callely had made claims for his expenses. Formal complaints by members of the public in relation to such matters were ultimately referred to the Committee on Members Interests of Seanad Éireann. That committee conducted hearings in relation to the complaints and ultimately concluded that Senator Callely had misrepresented his normal place of residence for the purposes of claiming expenses. Following the publication of the committee's report detailing its findings, Seanad Éireann passed a resolution censuring Senator Callely and resolved that he be suspended from the House for a period of 20 days and that his salary not be paid for the duration of that suspension. In the High Court, Senator Callely successfully sought an order of certiorari quashing the committee's report and certain other consequential relief. The committee and the Seanad appealed to this Court. A central issue before this Court on appeal was justiciability. However, before considering that question, the joint judgment goes into some detail regarding the background facts to the complaint against Senator Callely as well as the proceedings of the committee including events before the committee at public hearing, correspondence sent from the committee and the report of the committee referred to previously. The judgment of Hardiman J. goes into similar detail, referring to specific documents issued by the committee such as its "Statement of Contravention", being the document initiating the committee's process against Senator Callely. The same is true of the judgment of McKechnie J.
8.17 It can be seen, therefore, that this Court has regularly considered evidence as to what took place at hearings of a committee of the Oireachtas (and documents sent on the instructions of such a committee) for the purposes of determining what action was being engaged in at the time in question. It, of course, does not follow from the fact that the Court considered such evidence and reached conclusions of fact based on it, that the question of the lawfulness or otherwise of the actions in which the Oireachtas was engaged is itself justiciable. Indeed the approach of Hardiman J. in Abbeylara in that regard is instructive. Evidence as to what had transpired at the committee was considered for the purposes of determining and characterising the type of action which the committee was engaged in. It was only then that there was an assessment of whether the question of the lawfulness or otherwise of the actions of the committee thus characterised was justiciable.
8.18 Put the other way around, it is clear, therefore, that taking evidence of what actually transpired at a committee does not in itself breach the immunities conferred on the Houses of the Oireachtas. However, it does not follow from that conclusion that any such evidence may be relevant to a justiciable issue, for the question of whether the courts can, without breaching the privileges and immunities conferred by Article 15, consider the lawfulness of the actions of a committee is separate to the question of whether the courts can, at least in principle and should it prove relevant to a justiciable issue, consider evidence of what transpired at a committee for the purposes of determining the action in which that committee was engaged. It should be noted in this regard that, even within the significantly wider immunities claimed by parliament in the Westminster model, it appears to be accepted that evidence of what is said in parliament may be received without breaching any privilege in order to determine what was done. See Prebble v. Television New Zealand Ltd . [1995] 1 AC 321.
8.19 The Court is, therefore, satisfied that it is permissible to hear and consider evidence concerning the conduct of the business of a committee of the Houses of the Oireachtas without, in and of itself, that course of action breaching the privileges and immunities conferred by Article 15. But it follows that it is also then necessary to go on to consider whether the questions of the lawfulness of the types of action of the Houses or their committees sought to be challenged in this case are themselves justiciable. If not justiciable then any evidence of such action would not be relevant for it could not influence a justiciable issue. As noted earlier the first question to be addressed under that heading is as to whether Articles 15.10, 15.12 and 15.13 provide an absolute barrier to court intervention. In that context it is appropriate to make some observations on the use of comparative materials.
8.20 It is inevitable that, when considering the history and nature of parliamentary privileges in a bicameral system, reference will be made to the privileges afforded to parliament under the Westminster system. Such references can be very helpful, not least because parliamentary privileges were first developed and asserted in the constitutional developments in the United Kingdom, and those privileges identified in the 1922 and 1937 Constitutions undoubtedly looked to that history when determining the privileges which it was necessary to establish for the Oireachtas. But it is important to read such authorities (and history) with an awareness of the important constitutional distinctions in the law of Ireland and that of the United Kingdom.
8.21 One of the distinctive features of the position in the United Kingdom is that, apart from some fundamental and landmark pieces of legislation, privileges are a matter of long-standing constitutional convention, claimed by parliament and conceded by the courts. While most of the privileges commonly asserted relate to the functioning of parliament, and are still relevant today, the claim of privilege was rooted in the fact that parliament claimed the powers of a court to adjudicate on matters within its jurisdiction. Thus, it claimed a jurisdiction of exclusive cognisance, that was the right to adjudicate on all matters coming within the walls of parliament. But it is an error to assume that, because the drafters of the 1922 Constitution took the Westminster practice as a starting point for those privileges which they wished to entrench in the Constitution, they sought to imitate Westminster practice in every respect, such that the law in Ireland could be understood by reference to practice in the United Kingdom. In fact, it appears clear that a more limited course was taken. This appears most clearly when the provisions of Articles 18, 19, 20 and 23 of the Irish Free State Constitution are compared with the immediate preceding legislation then in force governing the operation of parliaments on the island of Ireland. Section 18 of the Government of Ireland Act 1920 provided that both the parliament of Northern Ireland and that of Southern Ireland established by that Act should have such powers, privileges and immunities as may be defined by Act of the parliament and until so defined "shall be those held and enjoyed by the Commons House of Parliament of the United Kingdom and its members and committees of the date of the passing of this Act". The more limited scope of the privileges established under the 1922 Constitution (and essentially reproduced in Article 15 of the 1937 Constitution) was first noted by Kohn, The Constitution of the Irish Free State , (London, 1932), at p.229:
"The wide sphere of parliamentary privilege, the repository in the British Parliament of latent powers of extensive scope, has been restricted by the Irish Constitution within the narrow limits of practical expediency."
8.22 Accordingly, if there is an absolute barrier to the scrutiny of actions of the Houses of the Oireachtas or their committees, it is not to be determined by lazy analogy with current or historic practice in the United Kingdom. Rather it is to be determined from what is to be deduced from the text and structure of the Irish Constitution. This narrower view of parliamentary privilege is traced in an insightful article (Murray, "Judicial Review of Parliamentary Proceedings" in The Irish Constitution: Governance and Values , Carolan and Doyle (eds.) (2008)) and is now well established.
8.23 Any comparison with the United Kingdom model must also take account of a different feature. Apart from the provisions of a small number of foundational statutes, the content of the privileges and immunities of parliament in that jurisdiction are a matter of long-standing constitutional convention. While their longevity is the basis of the respect which is afforded to them, their essential nature remains malleable so that they can be altered or replaced by legislation, or indeed practice. Thus, in 1971 the House of Commons at Westminster simply resolved that it would no longer entertain any claim of breach of privilege in respect of publication of debates. This flexibility is not a feature of a constitution which entrenches rights and prescribes privileges. The courts' task is to interpret the Constitution and attempt to ascertain the extent of the privileges afforded by the Constitution to members of the Oireachtas, and to give effect to them. Having made those observations, it is now necessary to turn to the question of whether there is an absolute barrier to justiciability.
9. Is there an Absolute Barrier?
9.1 It is clear that there are at least some circumstances in which the actions of the Houses of the Oireachtas or their committees can be the subject of scrutiny by the courts for the purposes of determining whether those actions are lawful. The courts have intervened in cases such as in Re Haughey and Abbeylara . Furthermore, the majority view on that issue in Callely suggested that the courts could have intervened in support of Mr. Callely's position had a differently constituted majority not been satisfied that there was nothing unlawful about the actions of the committee in question.
9.2 However, it is argued on behalf of the PAC and the State that those cases are specific and limited. In that regard reliance is placed on the fact that both Re Haughey and Abbeylara involved a situation where the committee in question had, as a matter of law, direct power over citizens who are not members of the Houses which enabled those citizens to be required to attend and answer questions. Indeed, an analysis of In Re Haughey shows that the matter went further for, having regard to the structure of the legislation being deployed in that case, it was clear that the Oireachtas needed to invoke the jurisdiction of the court to impose a penalty on a witness who refused to answer a question. Also, it has to be said that the actions which lay at the centre of Callely were only held to be justiciable because the committee in question was exercising statutory powers. A majority (including Fennelly J. who formed part of the majority on all issues in that case) would have held that the issues would not have been justiciable had the committee in question been acting solely on the basis of standing orders.
9.3 On the basis of that analysis the PAC and the State respondents argue that the conduct of a committee is not justiciable except in the limited circumstance where the committee seeks to invoke or deploy a legal power to compel the attendance of witnesses or the production of evidence in some other form. It is accepted that the exercise of such a legal power over a citizen necessarily carries with it an entitlement on the part of the courts to review the lawfulness of the way in which that legal power is being exercised.
9.4 It should, however, be noted that the courts in those cases did not confine themselves to assessing whether the use of a coercive power over the citizen was properly exercised. It is one thing, for example, for a court to declare that a statutory power to compel the attendance of a witness or the production of documents had not been properly exercised due to some failure to comply with the statutory regime conferring the power, but another thing for a court to analyse the underlying lawfulness of the business of a committee or the procedures which it intended to follow. It is again clear that the issues considered in Haughey , Abbeylara and Callely went beyond a simple analysis of whether the relevant statutory power had been exercised properly. Haughey was quintessentially concerned with the fairness of the procedures adopted by the PAC not least in the context of the fact that witnesses giving evidence adverse to Mr. Haughey would enjoy privilege in circumstances where Mr. Haughey would have no right to ensure their cross-examination. Abbeylara was concerned with the underlying validity in principle of the type of inquiry which the committee had proposed to carry out. Callely was concerned with the procedures followed by the committee and with the question of whether it would have been open to the committee to reach the conclusions which it did in the light of the evidence and materials which was before it. The review conducted in those cases, therefore, undoubtedly extended beyond an assessment of the validity of the manner in which the coercive power of the State had been invoked and went so far as to consider the underlying validity of the scope of the committee's role and the process which it intended to follow.
9.5 On that basis, it does not seem to necessarily follow from the fact that, as it happens, all of those cases involved coercive power, the jurisdiction of the Court to assess legality is confined only to such cases.
9.6 On the other hand, it seems clear that the privileges and immunities conferred on the Houses by Articles 15.10, 15.12 and 15.13 are designed to ensure freedom of debate and the free exercise of the other constitutional roles of the legislature such as holding the government to account and providing representation for the people on matters of genuine public interest. It follows that there must be a significant area of privilege and immunity. It follows in turn that there must be areas where, even though a citizen may be affected adversely by what goes on in the Oireachtas, there can be no recourse to the courts. If rights were not infringed or parties affected then there would, of course, be no basis for seeking a remedy in the courts in the first place. There would, it follows, be no need for any privilege or immunity for there would be nothing against which the privilege or immunity would be required to be exercised. By definition a privilege or immunity only makes sense in the context of the fact that there may be something which would otherwise be justiciable were it not for the existence of the privilege or immunity concerned.
9.7 It follows in turn that the mere fact that someone can say that they have been unlawfully affected by what goes on in the Oireachtas cannot provide a justification for the intervention of a court, for if that were to be so the privileges and immunities which the People have expressly written into the Constitution by means of the relevant clauses of Article 15 would be of very limited value. It is on that basis that the PAC and the State respondents argue that there is an absolute barrier to justiciability save only in those limited cases where the Oireachtas seeks to exercise a legal power over the citizen. The first question which arises is, therefore, as to whether, and subject only to that limitation, the privilege or immunity attaching to the Oireachtas is absolute.
9.8 A possible starting point for an analysis of that question is to address the hypothetical situation put forward in argument against Ms. Kerins. What would have been the situation, it was asked, if, instead of inviting Ms. Kerins to attend before the committee, there was simply a debate in the Dail or the Seanad on relevant issues concerning Rehab in which speeches were made which were potentially just as damaging to her reputation as the utterances which actually occurred at the PAC. It was rhetorically asked as to how, having regard to the clear privilege and immunity conferred in respect of utterances, there could be any proceedings legitimately brought in those circumstances. That would continue to be so, it was said, even if there was something fundamentally unfair about the way in which a deputy or deputies addressed those questions in the course of such a debate and even if, for example, it could be established that what the deputy said was incorrect and, indeed, that the deputy had no reasonable basis for making the suggestions contained in his or her speech. It was accepted that there might be circumstances in which a deputy might be in breach of standing orders in such a situation and might be amenable to punishment in accordance with standing orders. But, it is said, it is no place of the Court to assess the circumstances in which speeches might have been made or the damage done by them to a citizen for such matters are clearly placed outside the scope of the Court's competence by the Constitution.
9.9 But, the argument goes, if the Court has no competence to interfere in a situation such as that just described, what is, in truth, the difference which would allow a court to intervene in the circumstances of this case. The damage done could be equally great. Any lack of fairness which might be capable of being established in the circumstances of this case might be replicated. There would, it is said, be no difference of substance in either the cause or the consequences but nonetheless, if Ms. Kerins be correct, she is entitled to the intervention of the Court in the circumstances of this case but not in the hypothetical case which has just been outlined.
9.10 There can be little doubt but that thus put a difficult question is raised. If it is true that persons can be damaged, without remedy in the courts, by at least some matters which may occur in the Houses of the Oireachtas, what then might be said to bring a particular case over the line whereby the courts have jurisdiction to intervene. On the basis of the authorities analysed earlier, it is clearly the case that that line is passed when the coercive power of the State is exercised. But the real issue is as to whether the exercise of coercive power is the limit of the line or whether the principle may be, perhaps, somewhat more general with the coercive power example simply being an application of that more general principle.
9.11 Looked at from a different perspective, the question raised can be seen to derive from an issue as to the extent of the immunities conferred by the relevant sub-Articles of Article 15. Would it amount to a breach of the entitlement of the Houses to "ensure freedom of debate" to enable a court (as opposed to the Houses themselves) to consider whether a citizen had been affected by unlawful actions in the course of such debate. Would it be a breach of the privilege conferred by Article 15.12 for the Court, likewise, to consider whether a like effect had occurred. Would it be a breach of the requirement that utterances made in the Houses are not to be amenable to anybody outside the Houses to enable the Court to consider unlawfulness in a case such as this. The Court is not persuaded that Article 15.10 adds very much to the immunities relevant in the circumstances of this case. Whatever may be the extent of the immunities conferred by Articles 15.12 and 15.13 they do go some way towards protecting freedom of debate. It may well also be that, insofar as freedom of debate may be regulated by standing orders, the only remedy for a breach of those orders may be that an infringing member of the Houses of the Oireachtas may be subject to whatever penalties standing orders provide.
9.12 However, it does not follow that the Houses of the Oireachtas have any greater power, beyond the express privileges and immunities specified in Articles 15.12 and 15.13, to, as it were, prevent the courts from being able to determine the lawfulness of the actions of the Houses where those actions affect a citizen. That is not to say that there may not be other cases where Article 15.10 becomes important but, in the circumstances of this case, where the complaint of a citizen involves an allegation of having been affected by what is said to have been the unlawful actions of a committee of the Dail, it seems to the Court that the real question is as to the extent of the privilege or non-amenability conferred by Articles 15.12 and 15.13. That in turn seems to come down to three questions. What is the nature of the privilege specified in Article 15.12? What does non-amenability mean in Article 15.13? What constitutes utterances for the purposes of both of those Articles?
9.13 The term privilege is one which is used somewhat differently in different contexts. Legal professional privilege, for example, allows a party to decline to reveal the contents of legal advice or information imparted for the purposes of obtaining legal advice. In the main it is deployed to prevent the compellability of what might otherwise be admissible and compellable evidence. On the other hand, the privilege which exists in respect of the reporting of certain types of events, such as fair and accurate reports of court cases, is designed to prevent people from being sued for what might otherwise be actionable statements such as those which are defamatory. Similar considerations exist in respect of the qualified privilege which attaches to other types of communication. From the context of Article 15.12 it seems clear that it is a privilege of that latter type which is, at least principally, involved. The Article goes on to refer to privilege attaching "wherever published". That seems to imply that the principal focus of Article 15.12 is to ensure that there can be free debate in the Houses and that those who report on that free debate can themselves be immune from suit. But it does not follow that evidence of what is said in the Houses (or their committees) cannot be used to determine the actions of the House or committee concerned or that the actions of the relevant House or committee are necessarily immune from suit.
9.14 Like considerations apply in respect of the utterances referred to in Article 15.13. There can be no doubt but that an action seeking to make an individual member of the Houses of the Oireachtas liable for something said in the House or at a committee would constitute a clear breach of the non-amenability requirements of Article 15.13. But it does not necessarily follow that the actions of a committee cannot be reviewed by a court in order to determine whether those actions are lawful and, in turn, whether those actions may not have unlawfully affected a citizen. Two subsidiary questions seem to the Court to arise from that analysis. The first is the question as to who or what entity might properly be sued in respect of an allegedly unlawful action of a House or its committees without infringing the obligation not to make the members in question amenable to the Court. The second issue is to consider what might properly be regarded as an "action" of a House or committee which could be divorced from "utterances" so as to be capable of being reviewed without impinging on the immunities conferred on the Houses.
9.15 So far as the first of those questions is concerned it seems to the Court that the Houses of the Oireachtas collectively, and the Dail and the Seanad individually, are constitutionally recognised entities which are capable of being themselves a proper defendant in proceedings. There is no reason in principle why either the Houses collectively or individually could not be named as a defendant. To do so would not be to seek to make any individual member of either House "amenable" but rather to make the Houses themselves responsible for their actions if those actions be unlawful, have affected a citizen and are not protected by any privilege or immunity. There may very well be limitations on the extent to which questions of that type might be justiciable, but the Court does not see any reason why, in principle, proceedings of that type could not be brought while at the same time respecting Articles 15.12 and 15.13. Indeed, it is appropriate to note that the Clerk of the Dail is named as the fourteenth named respondent in these proceedings.
9.16 However, for it to be the case that a House of the Oireachtas could be the subject of proceedings because of the actions of a committee, then it would be necessary that the action complained of was, at a minimum, reasonably considered to be an action of the House or Houses concerned rather than the action of an individual member or group of members of the Oireachtas. The Houses are not responsible for the individual actions of their members. The members are not amenable for what they say in a House or its committees. But if it can be determined that the House itself, collectively, engaged in an action which was unlawful and affected a citizen, then there is no reason in principle why that might not be justiciable without infringing Articles 15.12 and 15.13. It may be difficult to conceive of practical circumstances in which, given the latitude necessarily afforded to proceedings in the Houses of the Oireachtas, it would be determined that a House was acting unlawfully so as to give rise to proceedings of the type contemplated in this paragraph. For the purposes of illustration however, if, for example, the Houses of the Oireachtas were to assert the power to arrest and punish citizens in the manner previously asserted by the Houses of Parliament in Westminster, and vividly recorded in the judgment of Watkins v. United States (1957) 354 US 189, then that would be clearly outside its power, unlawful and could be the subject of proceedings.
9.17 That leads to the question of a committee. However, the whole reason why this Court has concluded that a committee enjoys the same constitutional privileges as a House, when carrying out the legitimate constitutional work of that House, is because the House has delegated a particular part of its work to the committee concerned. But that cuts both ways. It logically follows that the House must be responsible for what the committee does on its behalf. It follows in turn that a House of the Oireachtas (in this case the Dail) can be responsible for the actions of one of its committees if that committee acts unlawfully and thereby affecting a citizen. It also follows that, since the jurisdiction of a committee is limited by the terms of delegation to it, it may be possible to determine more readily that a committee has exceeded the bounds of its delegation.
9.18 On the basis of that analysis there ultimately are two competing matters which need to be balanced. On the one hand there is no reason in principle why a House or the Houses of the Oireachtas cannot be responsible for unlawful actions taken by a committee of the House concerned which had the effect of affecting a citizen. On the other hand, the underlying purpose of Articles 15.10, 15.12 and 15.13 is to facilitate free speech within the Houses so that the constitutional functions of the Oireachtas can be conducted with only limited interference by the courts. Clearly, these two objectives can come into conflict but it is at least clear that there are certain circumstances in which the courts can review the actions of Dail committees to determine their lawfulness.
9.19 In the view of the Court an analysis of the judgments in the separation of powers cases already referred to, and in particular those in Re Haughey and Abbeylara , do not support the narrow view of the extent of justiciability of the actions of the Houses or their committees which is argued for by the PAC and the State respondents. While it is true that each of those cases involved some element of coercive power, a reading of the judgments concerned does not support the view that the existence of that coercive power was decisive in providing a reason for departing from what might be said to be an otherwise absolute immunity.
9.20 Insofar as the majority on the justiciability issue in Callely (which included Fennelly J. and those judges who were ultimately in the minority as to result) might be said to have determined justiciability on the basis of the fact that the Oireachtas in that case was operating under a statutory regime, it does not seem to this Court that such an analysis supports the argument now put forward. The core issue in Callely was as to the extent to which there might be a difference between the justiciability of issues relating to, on the one hand, members of the Houses and, on the other hand, citizens outside the Houses. The argument turned on a number of dicta in previous cases, not least in Abbeylara , in which a distinction between the position of members and non-members was not only referred to but considered to be important. In that sense it might be said that it is implicit in all of the judgments in Abbeylara that the actions of the Houses of the Oireachtas and their committees might, in principle, be reviewable where they affect citizens but that there may be an exception in the case of members (at least, having regard to the judgment of Fennelly J. which was critical in forming the majority in that regard, where standing orders rather than a statutory regime is invoked). It is true that there is a discussion in the joint judgment of O'Donnell and Clarke JJ. in Callely as to how, if actions of the Oireachtas in respect of a member were reviewable, that might be reconciled with the specific privileges contained in Articles 15.12 and 15.13, but also having regard to the separation of powers and the area of autonomy implied in Article 15.10. But it does not seem to this Court that there is anything in that discussion which provides an adequate basis for suggesting that this Court, in Callelly , came to a view which is consistent only with there being an absolute barrier to justiciability save in cases where a coercive power is exercised.
9.21 However, even though a proper analysis of those judgments does not support the narrow case for reviewability made on behalf of the PAC and the State, it is clear that there remains a wide area of non-justiciability in respect of the actions of the Houses or their committees. First, it must be said that full effect needs to be given to the clear prohibitions which are expressly set out in the relevant Articles of the Constitution. To make a member of a House of the Oireachtas amenable to a court in respect of something said in the House or in a committee, would be a clear breach of Article 15. It also seems to the Court to follow that that which cannot be achieved directly cannot be achieved by collateral means. It would clearly be impermissible to ask a court to intervene in a way which would, by necessary implication, require the Court to at least indirectly make a member amenable or breach a privilege conferred on a member. Thus, there is a clear area of non-justiciability which surrounds utterances made in the Houses or their committees or matters which are sufficiently closely connected to such utterances as to enjoy the same privileges and immunities.
9.22 In addition, there is, in the Court's view, a clear need for courts to be careful in respecting the separation of powers provided for in the Constitution.
9.23 In Abbeylara , Keane C.J., while dissenting as to the ultimate outcome of the appeal, upheld the jurisdiction of the courts to protect the constitutional rights of citizens even as against the Oireachtas, but noted that, out of respect for the separation of powers, the courts should not accept every invitation to intervene. After setting out Articles 15.10, 15.12 and 15.13, Keane C.J. stated:-
9.24 This view is also consistent with the judgment of the Supreme Court in O'Malley v. An Ceann Comhairle [1997] 1 I.R. 427, 431, where O'Flaherty J., upholding the refusal of leave to seek judicial review of the decision of the Ceann Comhairle, observed how questions should be framed "is so much a matter concerning the internal workings of Dail Éireann that it would seem inappropriate for the Court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment". The limitation on the courts' exercise of a jurisdiction to intervene was seen as a matter or appropriateness and prudence, rather than an absolute bar.
9.25 Clearly, in that regard the views of Keane C.J. were not inconsistent with the views expressed by the majority in Abbeylara . It thus follows that there is a second area of immunity, which stems from the respect for the separation of powers, which precludes the courts from impermissibly interfering in the work of the Oireachtas. This too was made clear in a later passage of the judgment of Keane C.J.:
"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 any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs."
McGuinness J. spoke to the same effect: "Could such non-justiciability extend to a situation where, for instance, the members of a committee were in blatant breach of the standing orders of the House itself and that breach effected the rights of non-members? It seems to me that it could not."
9.26 It is important to emphasise, therefore, that what follows is an analysis of the circumstances in which the Court may, or should not, intervene having regard to the general obligation on the part of the courts to respect the separation of powers as identified in the Constitution. These comments have no application, subject only to the possibility of there being a Callelly type exception, to the express restrictions which are found in Article 15.
9.27 It is important to start with a re-statement of the purpose of the privileges and immunities conferred on the Houses and their committees by the relevant provisions of Article 15. Those provisions are designed to permit free speech within the Houses so as to permit the constitutional functions of the Oireachtas to be carried out in a manner which is not unduly restrained by the risk of outside interference from the courts. The provisions concerned are also designed to ensure public knowledge of how those constitutional functions are being performed in a manner that is not constrained inappropriately by the risk of legal action. That the constitutional rights of citizens do not disappear at the gates of Leinster House but rather are primarily to be protected within the bounds of the Houses of the Oireachtas by the Houses themselves is supported by the constitutional entitlement of those Houses to enforce rules and standing orders without outside interference.
9.28 Against that backdrop it would be inappropriate for the courts to intervene where that which was alleged could be described as technical, insufficiently serious or closely aligned to those areas (such as utterances within the Houses) which are given express constitutional immunity.
9.29 In reaching an assessment as to whether the relevant boundary has been crossed it is necessary for the Court to have regard to all of the circumstances of the case while affording a very significant margin of appreciation to the Houses as to the manner in which they conduct their business. To do otherwise would be to fail to pay appropriate respect to the separation of powers.
9.30 But the conclusions reached earlier, as to the inconsistency of the narrow approach urged on behalf of the PAC and the State respondents with the existing jurisprudence, also recognises that there may be cases where the boundary is crossed and where it is appropriate for a court to intervene. In assessing whether that be so in the circumstances of an individual case it is necessary to identify those elements of what transpired which might be said potentially to be unlawful and to determine whether, while affording great respect to the significant margin of appreciation which the Houses and their committees enjoy, nonetheless the matters put forward are sufficiently significant, serious and non-technical so as to justify intervention.
9.31 Against the backdrop of those general principles it is necessary to consider their application to the facts of this case.
10. Application to the Circumstances of this Case
(i) Introduction
10.1 In the context of this case it is necessary to identify a number of features of what transpired before the PAC which it will be necessary to consider in greater detail so as to determine whether the threshold identified in the last section of this judgment has been passed.
10.2 The following factors can be identified:
(a) The assertion that much of the matters sought to be pursued at the PAC on the occasions relevant to these proceedings are said to have been outside the terms of reference which the Dail had conferred on the PAC;
(b) the fact that the CPP, in its determination on the question of compellability, concluded that the PAC was acting ultra vires ;
(c) that it is said that the PAC invited Ms Kerins to attend before it on one basis but then proceeded to enquire into matters which went beyond the scope of the items identified in the invitation by what is argued to be a very significant margin indeed; and
(d) the assertion that no appropriate action was taken by the Houses of the Oireachtas or any duly appointed organ of the Houses, to prevent or remedy the matters identified at (a) and (c) with it being said that the decision of the CPP only prevented the exercise of powers of compellability.
10.3 While it will ultimately be necessary to consider the cumulative effect of each of these matters insofar as they may be established, it is appropriate to commence by considering each of them in individually.
(ii) The Terms of Reference
10.4 As has already been noted the primary control of the actions of a committee of a House or the Houses of the Oireachtas is a matter for the House or Houses concerned. The terms of reference of a committee are fixed by the Oireachtas and it is open, of course, to the Oireachtas to vary those terms so as to confer such additional functions on the relevant committee as the Oireachtas may consider appropriate.
10.5 For that reason it does not seem to the Court that it would be appropriate for the courts generally to entertain proceedings which suggest that a committee of the Oireachtas is acting unlawfully on the basis of technical or textual debates about the precise boundary of the remit of a relevant committee. Such matters are exclusively for the Oireachtas and not for the courts.
10.6 However, it does not seem to the Court that it is appropriate to characterise the departure of the PAC from its terms of reference in the circumstances of this case as being merely technical or, indeed, minor.
10.7 The circumstances in which the PAC sought powers of compellability from the CPP should be recalled. This was not a case where the PAC had decided to expand the scope of its enquiry and considered that powers of compellability were needed to enable it to conduct the extended enquiry on which it proposed to embark. Rather, this was a case where the PAC wished to continue with its existing enquiry but felt it needed powers of compellability so to do. Its request to the CPP was therefore concerned with continuing with an existing enquiry. In that context it is only possible to infer from the refusal of the CPP, on the grounds of ultra vires , of powers of compellability, a clear view on the part of the CPP that the type of enquiry with which the PAC was engaged was materially outside its remit. A reading of the decision of the CPP does not permit of any other interpretation.
10.8 The Court agrees with the reasoning of the CPP in its determination in that regard. However, it seems to the Court that the fact that a body, expressly charged within the Houses of the Oireachtas with determining the scope of a committee's remit (at least for the purposes of compellability powers), came to the view that the PAC was acting outside its remit adds significance substance to the argument that a court can appropriately intervene.
10.9 On the facts of this case the Court is not required to impose its own view as to the remit which the Dail has conferred on the PAC but rather only is required to agree that a relevant committee of the Oireachtas itself has determined that the PAC was acting outside its remit.
10.10 Before leaving this heading it is important to make a number of points. First, it is important to emphasise that nothing in this judgment should be taken as implying that even a significant departure from terms of reference can, necessarily and taken by itself, justify court intervention. It is a factor which can be taken into account in the overall assessment of whether the boundary has been crossed. Whether it could amount to a sufficient justification for court intervention without any other factors being present is a matter which it is not necessary to decide in this case.
10.11 It is also important to identify that, having regard to the reasoning of the CPP in its compellability refusal decision, it is clear to the Court that the PAC was acting very significantly outside of its remit. It must be recalled that the reasoning by which this Court came to the view that a committee of a House or the Houses enjoyed the same constitutional privileges and immunities which the House or Houses themselves enjoyed stemmed from the fact that the committee concerned had been given the role of performing an aspect of the constitutional function of the Oireachtas. But with that benefit comes a responsibility. Amongst other things, there is a responsibility to take reasonable steps to remain within the scope of the remit given to the committee by the Oireachtas. The committee enjoys constitutional protection because it has had a remit conferred on it, but it has a constitutional obligation to keep within that remit. Where, as here, a committee has strayed very far beyond the boundaries of its remit and where a relevant committee of the Oireachtas has come to that view, same provides a significant factor to be taken into account in considering whether, in all the circumstances, it is appropriate for the Court to intervene.
(iii) The Invitation
10.12 It is correct, as was urged on behalf of the PAC and the State respondents, that Ms. Kerins was under no legal obligation to attend on the invitation issued to her by the PAC. However, it does not seem to the Court that that is the end of the matter. Persons who are invited to attend before a committee of the Oireachtas (or, indeed, before a House or the Houses of the Oireachtas itself if the Oireachtas were to so choose) have to make a decision as to whether they should accept the invitation concerned. Clearly, it is likely that the matters which the person concerned is told that they will be asked to address may form a part, and perhaps a very important part, of the decision which they make. In those circumstances, fair process requires that a committee, which has induced a person to attend before it on one basis, stays reasonably within the scope of the invitation. The Court would again emphasise that it is no function of a court to entertain complaints which place reliance on what might be said to be a technical or minor deviation. However, where there is a significant difference between the actions of the committee on the occasion when a citizen attends before it and the basis on which an invitation was accepted, then that must be a factor which the Court can take into account in assessing whether the threshold has been passed.
10.13 However, it must be also emphasised, as noted earlier, that the Court, in reaching any conclusions under such a heading, must assess what may reasonably be determined to be the actions of the committee as a whole (including considering the role played by the chair) rather than simply considering the statements of individual deputies. That being said it equally follows that statements or actions made by an individual deputy which might point to the deputy concerned being unhappy with the direction of the committee would not necessarily prevent an overall assessment being reached that the committee as a whole had acted in an unlawful fashion.
10.14 In that context there is a difficulty, to which it will be necessary to shortly return, in the Court making an assessment under this heading having regard to the way in which the case was resolved by the Divisional High Court and also the run of this appeal.
(iv) A Remedy
10.14 It is true that, as a matter of practicality, the business of the PAC in the context of the issues concerning Ms. Kerins came to an end when the CPP declined compellability powers. The PAC itself had decided that its enquiries could not be progressed much further without those powers. However, in this context, it is important to emphasise that the primary constitutional obligation to provide a remedy for any consequences which flow from unlawful actions which occur within the Oireachtas lies on the Oireachtas itself. That function can, of course, be delegated to an appropriate committee or the like. But, if it should transpire that a committee acts, in a material and significant manner, in an unlawful way then there is an obligation, under the Constitution, on the Oireachtas to do something about it.
10.15 If the Oireachtas provides some means of controlling the unlawful activities of its own committees then that fact would weigh most heavily against it being appropriate for a court to intervene. The Court would have to afford a very significant margin of appreciation to the decisions of any properly constituted body within the Oireachtas charged with providing a remedy for unlawful actions occurring within the Oireachtas itself.
10.16 However, in the circumstances of this case it does not seem that any significant action was taken against the PAC. The question of the Court respecting the actions taken by the Oireachtas to control committees which act unlawfully, and the weight to be attached thereto, does not really arise in this case.
(v) Conclusion
10.17 As already pointed out it is necessary for the Court to consider the cumulative effect of each of the matters in controversy. In the Court's view the cumulative effect of the PAC acting very significantly outside of its terms of reference (and in a manner determined by the CPP to be ultra vires ) when coupled with the possibility (if that could be established) that the PAC engaged in an unlawful and unfair process by acting as a whole in a manner which led to a citizen accepting an invitation on one basis but being treated significantly differently on attendance, together with the absence of any action having been taken by the Oireachtas to deal with these matters, would lead to it being appropriate for a court to intervene.
10.18 However, that conclusion has, as at least one of its component parts, an assumption concerning the outcome of one element of the assessment. That leads to a difficulty which it will now be necessary to address.
11. The Difficulty
11.1 Given that the Divisional High Court took the view that the issues which Ms. Kerins sought to raise were non-justiciable, it followed that it was unnecessary for that Court to attempt to assess the facts in any detail. The judgment of the Divisional Court does, as noted earlier, outline the events which occurred before the PAC in some detail and does conclude that Ms. Kerins reputation was undoubtedly damaged by what occurred. But it does not follow from any of the findings of the Divisional Court that the PAC was necessarily acting in an unlawful manner when conducting the hearings of which Ms. Kerins complains. That is particularly so in the light of the determination made above which would require an assessment as to whether certain actions of the committee as a whole (as opposed to individual comments of certain members) could be said to have been unlawful. It follows that there may be an issue as to whether it is possible for this Court to reach a definitive conclusion on the necessary facts.
11.2 In assessing that element of the Court's analysis which requires a determination of the actions of the PAC as a whole under the "invitation" heading, the following matters will require full and detailed assessment:-
(a) A fair characterisation of the actions of the committee as a whole including, where appropriate, an assessment of the actions of the chair of the committee. Where a particular course of action is engaged in by a member or members of a committee without objection from the other members and without intervention from the chair, it may well be open to the conclusion that the committee as a whole approved of the action in question. In that context the Court will emphasise the importance of the role of the chair. It is the function of the chair of any grouping not only to ensure the orderly conduct of the business of the body concerned but also to ensure that the body acts properly in accordance with any relevant law, rules or regulation. In the context of a committee of a House or the Houses of the Oireachtas it is the role of the chair to seek to ensure that the committee acts in a lawful manner. It follows that it is for the chair to seek to control any actions of members which go outside the parameters of that which is properly permitted by any relevant law, rules or regulation. It is also important to note that the chair is the port of call for any member who believes that the actions of the committee (or another member of members) is trespassing beyond the bounds of that which is permissible. But if the chair does not intervene, or is not asked to intervene by other members, then it may reasonably be inferred that the committee as a whole approves of the course of action being adopted.
(b) However, an isolated comment or comments, which could not fairly be taken to represent the actions of the committee as a whole, could not lead to any adverse finding.
(c) Next, it is important to distinguish between utterances of individual deputies at the committee and the actions of the committee as a whole. For the reasons already analysed it is clear that utterances cannot themselves be the subject of litigation but can be used as evidence to assess the actions of the committee. It is only in that way that the statements made by various deputies can be considered.
(d) Furthermore, it must be said that, in the context of the specific issues which arise in this case, a fundamental question is as to whether, having regard to the basis on which a citizen was invited to attend before it and the terms of reference of the PAC, the committee as a whole can be said to have acted lawfully. In that context it does not follow that a consideration of whether a fair process has been observed involves an assessment of whether the comments made by individual deputies might be considered to be "unfair" in the colloquial sense of that term. Given that comments which many might regard as "unfair" in that sense can be made in either of the Houses of the Oireachtas or their committees without any risk of challenge in the courts, it follows that the assessment of the actions of the committee cannot be based on a similar colloquial consideration of whether what was said might be considered to be fair or otherwise.
(e) On the other hand, a committee which invites a citizen to attend before it on one basis but then, by its actions, demonstrates that it proposes to act in a significantly different way to that which formed the basis of its invitation, can properly be said to have acted in breach of its obligation to adopt a fair process. A citizen who is invited to attend before a committee on a particular basis is entitled to take the committee at its word. The citizen is entitled to expect that the committee will act in a manner broadly consistent with the basis on which the invitation is proffered. It is true that the citizen is not obliged to attend, but it is equally true that a citizen, perhaps weighing up whether it is better to attend or not, will undoubtedly have regard to the basis on which the invitation is issued. Having accepted an invitation on one basis, the citizen is entitled to require the committee not to deviate, or at least not to deviate to a significant and material extent, from the basis on which the citizen agreed to attend in the first place.
(f) To label the actions of a committee as being unlawful in circumstances where it goes outside the basis on which it invites a citizen to attend is to do no more than to keep the committee to its word.
(g) On the other hand, there must be a degree of practicality and realism brought to bear in any assessment of that type. Minor or technical deviations from what might, on one view, be the strict letter of the basis on which a person is invited to attend could not provide legitimate grounds for concluding that a committee had acted unlawfully. The deviation must be substantial and significant.
(h) In that context it is necessary to consider the argument put forward by the PAC and by the State respondents which suggested that a citizen who attends voluntarily is entitled to leave at any stage and in particular if the citizen concerned feels that the committee is embarked on a course of action which deviates significantly from what was legitimately anticipated. While it is technically true that there could be no legal sanction in such circumstances, it seems to the Court that a real world view of the situation must take cognisance of the likely reputational damage which would be suffered by a person who simply walked out of a Dail committee. If it were to be established that a person was invited to appear before a Dail committee on one basis but the committee proceeded to act in a manner wholly inconsistent with the basis on which the invitation was issued and accepted, then it would be little solace to the individual concerned to be told that they could walk out without any legal consequences. The fact that there were no formal legal consequences deriving from any possible report of the relevant committee in Abbeylara did not preclude this Court from determining that the actions of the committee concerned were unlawful.
11.3 The evidence before the Divisional Court was given on affidavit. Insofar as material to the sort of issues just identified, the evidence in reality is confined either to that which is contained in transcripts of the hearings of the PAC or documents passing between the PAC and Ms. Kerins and her advisers. No questions of credibility arise. In such circumstances this Court is in as good a position as the Divisional Court would have been to assess the evidence and reach conclusions.
11.4 On the other hand, the precise basis on which it is, consistent with the principles of justiciability and the separation of powers, open to a court to assess and characterise the actions of a committee in circumstances such as those in issue in these proceedings, was not clarified until this judgment.
11.5 It follows that, while there was some debate on the facts at the hearing before this Court on this appeal, that argument was, for understandable reasons, not expressly directed to the precise questions which this Court has identified.
11.6 In those circumstances the Court is satisfied that it is appropriate for it to reach conclusions on whether, having regard to the principles identified, it can be said that the PAC acted unlawfully by reason of the manner in which it conducted its questioning of Ms. Kerins in the light of the invitation issued to her. However, the Court would propose that the parties be given a brief further opportunity to make submissions on the facts having regard specifically to the principles identified in this judgment.
12. The Remedy
12.1 At the level of principle it seems to the Court that a person who has been affected by the unlawful actions of the Dail (acting through a committee) in circumstances which are justiciable must at least be entitled to a declaration to that effect. It is important in that context to emphasise that a committee is, in substance, an agent or delegate of the House or Houses which appoints it. The basis on which it attracts constitutional immunity is precisely because it has conferred on it by the relevant House or Houses the task of carrying out part of the constitutional function of the Oireachtas. If it acts in an unlawful fashion then the Oireachtas, or the relevant House which conferred a role on it, must bear responsibility for that unlawfulness. Unless the issue is excluded by the privileges or immunities conferred by the Constitution or by the proper respect which the courts must pay to the separation of powers, then the least which a court can be expected to do is to determine that the Oireachtas or one of its Houses has, through its agent or delegate in the form of its committee, acted unlawfully.
12.2 Obviously, there is no continuing risk that the PAC will continue with the inquiry which has given rise to these proceedings. The question of injunctive relief does not, therefore, arise.
12.3 Furthermore, it seems to this Court that, before it would in principle be appropriate to grant injunctive relief, and having regard to the respect which one organ of the Constitution is required to pay to any other, it would ordinarily be important for a court to determine the lawfulness or otherwise of the actions or intended actions of a committee, to determine next whether the threshold for justiciability has been reached and then, if appropriate, to declare the legal position thus affording the committee concerned the opportunity to act lawfully. Injunctive relief could only be considered, if at all, where it appeared that a committee intended to continue to act unlawfully notwithstanding a determination by a court of competent jurisdiction that its actions were unlawful.
12.4 As noted earlier, the question of whether Ms. Kerins might be entitled to damages was not before the Divisional High Court on the first module of the hearing before that Court which is, of course, the module in respect of which this appeal lies. The question of damages does not, therefore, arise on this appeal. However, it is of some importance that the Court point out that it by no means would necessarily follow from a decision of this Court to the effect that the PAC had acted unlawfully that Ms. Kerins would be entitled to damages. A whole range of issues would need to be considered.
12.5 First, it is important to emphasise that this Court has placed significant weight in reaching its conclusions on the need to protect the entitlement of the Oireachtas to secure freedom of speech within the Houses and to ensure that the constitutional functions of the Oireachtas can be carried out without undue interference from the courts. Those factors weigh heavily in the balance in any case in which it is considered that the Court might intervene even by means of simply making a declaration as to unlawfulness. But those questions would give rise to even greater consideration in the context of a claim for damages.
12.6 In addition, it would be necessary to consider whether the principles affecting State immunity in negligence such as those identified in Glencar Exploration plc. v. Mayo County Council ( No. 2) [2002] 1 IR 84 and more recently in Cromane Foods Limited & anor. v. Minister for Agriculture, Fisheries and Food & ors . [2016] IESC 6 apply in a case such as this and, if so, what effect those principles might have on the question of damages.
12.7 Furthermore, even in the context of this Court coming to the view that a declaration of unlawfulness should be made and even if damages were, in principle, permissible, it would be necessary to establish a causal link between any unlawfulness established and any damage suffered. That would require a careful analysis of the precise nature of the unlawfulness determined and a close consideration of the evidence to determine whether any of the adverse consequences for Ms. Kerins, as identified in the judgment of the Divisional High Court, could be attributed to that unlawfulness. In that context regard would have to be had to the fact that, for example, a debate in the Dail during which concerns were expressed about Rehab and Ms. Kerins could not be the subject of a declaration of unlawfulness but might well give rise to the same or similar consequences.
12.8 These matters are set out in this judgment not for the purposes of reaching any definitive conclusion (for, as pointed out, these matters were not before the Court) but rather for the purposes of emphasising that, should a second module of this case go ahead before the High Court, there are very significant legal issues which would need to be addressed in the context of any claim for damages. Indeed, the issues just identified should not be taken as representing an exhaustive list.
12.9 But returning to the question of a declaration, it is clear that there are a number of matters which yet remain to be finally determined before it can be decided whether it is appropriate for the Court to consider granting a declaration in all the circumstances of this case. What follows is the course of action which the Court proposes to enable finality to be brought in respect of those questions.
13. Proposed Course of Action
13.1 In the light of the above analysis the Court is satisfied that it would, in principle, be open to this Court to declare that the PAC had acted unlawfully in a manner which had affected Ms. Kerins. The Court has determined that it would be appropriate to make such a declaration in all the circumstances of this case subject to two matters.
13.2 First, it is necessary to consider the consequences for this case of the finding of the Court that the relevant proper defendant should be the Dail rather than the individual members of the PAC. Next, it is necessary to determine whether it is appropriate to characterise the actions of the PAC as a whole as being a significant and material breach of the basis on which Ms. Kerins was invited to appear before it.
13.3 It should be made clear that, provided the Court is satisfied that there are actions which it can and should take in respect of the identity of the proper defendant and provided that it is satisfied as to the proper characterisation of the actions of the PAC, then such a declaration should be granted. On that basis the conclusion section of this judgment will set out the procedures which the Court proposes to follow to reach, in very early course, a final determination on such matters.
13.4 Having regard to the findings of the Court set out above, no question of damages arises in the circumstances of this appeal although the possibility of the second module of these proceedings going ahead in the High Court remains. However, if the matters just adverted to can be resolved in favour of Ms. Kerins, then the Court will make a declaration that the PAC acted unlawfully in the manner in which it questioned Ms. Kerins by reason of acting significantly outside its terms of reference and in a manner significantly different from the basis on which it had invited Ms. Kerins to attend before it.
13.5 Finally, it is appropriate for the Court to make some brief comments on whether there might be a Callely type exception which might extend the circumstances in which it would be appropriate for a court to assess the actions of a House or Houses of the Oireachtas or a committee notwithstanding the provisions of Article 15.
14. Is there a Callely Type Exception
14.1 In the light of the conclusion reached earlier it is unnecessary to reach any definitive view on this matter. The Court has determined that it is appropriate to make a specific assessment as to whether Ms. Kerins has been affected by unlawful actions of the PAC having regard to the principles identified in the course of this judgment.
14.2 The existence or otherwise of a Callely like exception, which might arise in particular egregious circumstances, could not affect the ultimate result of this appeal and, in those circumstances, the Court does not consider that it would be appropriate to determine such an important question in a case where the answer to that question was not necessary for the final resolution of the proceedings.
14.3 However, in that context, it should be recalled, as noted earlier, that much of the jurisprudence in this area emphasises that the entitlements of individuals are not set at nought just because the Oireachtas is involved. Perhaps the most authoritative statement of this principle is to be found in the 1967 Report of the Oireachtas Committee on the Constitution (1967) (PR 9817):
"The wording of this provision [Article 15.10] 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 the other provisions of the Constitution in relation to the matters at issue. … It must be assumed that other provisions of the Constitution such as Articles 34, 37, 38, and 40 are not brushed aside."
14.4 Rather, it is for the Oireachtas rather than the courts to protect the rights of individuals in circumstances where the Oireachtas and its members enjoy the privileges and immunities conferred by Article 15. Against that background it is at least arguable that there is a constitutional obligation on the Oireachtas both to adopt standing orders or other measures designed to provide protection for individuals against inappropriate infringement of their rights while at the same time protecting the freedom of speech within the Houses guaranteed by Article 15.10 and further protecting the Oireachtas from any inappropriate interference with its entitlement to carry out its constitutional role in whatever way it considers appropriate. In reaching any such balance it would, at a minimum, be necessary to acknowledge that the Oireachtas would enjoy a very wide margin of appreciation.
14.5 That being said it is also arguable, in the same context, that there is a constitutional obligation on the Oireachtas to put in place appropriate mechanisms to remedy any wrong done. Again, at a minimum, the Oireachtas would enjoy a very wide margin of appreciation in making any assessment relating to the balancing of appropriate rights and obligations in the circumstances of any particular case. However, it should be noted that the greater the protection provided by the Oireachtas the more it may be inappropriate for the Court to intervene.
14.6 Because it may arise in other proceedings it is, perhaps, appropriate to characterise the issue concerning a Callely type exception as being one as to whether the Court might have jurisdiction to intervene in the event that there was either a flagrant or persistent failure to put in place appropriate measures to provide remedies for those who have been affected by unlawful actions within the Oireachtas. For the reasons already identified it is unnecessary, for the purposes of resolving this appeal, to reach any conclusion on whether such a jurisdiction exists.
14.7 However, in the context of that issue it is, perhaps, appropriate to deal with one matter which does arise in the context of this case. On the facts it is clear that the CPP considered that the PAC had acted outside of its jurisdiction in embarking on at least aspects of the inquiry which lies at the heart of these proceedings. That conclusion formed the basis for the refusal of the CPP to grant compellability powers to the PAC. However, it would appear to be the case that the fact that the CPP came to that view did not preclude the PAC from continuing with its enquiries. Rather the only consequence was that the PAC did not obtain compellability powers and reached the conclusion, for practical reasons, that there was little point in continuing with its enquiries without those powers. As already noted, this Court agrees with the interpretation of the CPP.
14.8 It does appear, therefore, that the CPP did not have the power to prevent the PAC from enquiring into matters which were arguably outside its remit. However, the analysis which has led this Court to the conclusions which it has reached is dependent on committees having the privileges and immunities of a House or Houses of the Oireachtas because they are doing the business of the House or Houses concerned. It obviously is a matter for the Houses of the Oireachtas to confer whatever functions are considered appropriate on a particular committee. Provided that the function concerned is one which the House or Houses itself has (as opposed to the situation which arose in Abbeylara ) then it is ultimately a matter for the House to determine whether it should carry out a particular function itself or confer it on a committee. But it does seem important, in that very context, that there be an effective means whereby the House concerned (or an appropriate committee of a House such as the CPP) can police questions concerning the remit of any particular committee. A House can, of course, extend the remit of any committee and therefore there is no necessary reason why any appropriate constitutional function cannot be conferred on a committee either in its initial terms of reference or any extension thereof. But, having regard to the important constitutional safeguards which a committee, as a body carrying out a constitutional function of a House, enjoys, it is equally important that there be appropriate mechanisms in place to ensure that a committee does not exceed its remit without being authorised by or on behalf of the House or Houses concerned to carry out an extended remit.
15. Conclusion
15.1 In summary it is important to emphasise what is, and what is not, at issue on this appeal. In that context the following points should be noted:-
(i) The Divisional High Court conducted a modular hearing at which all questions concerning whether Ms. Kerins might be entitled to damages were left over to a second phase. This appeal is concerned only with the judgment of the Divisional High Court on the first module and does not, therefore, concern the question of damages, although the Court makes a number of limited observations in that regard;
(ii) The Divisional High Court considered that the constitutional privileges and immunities set out in Article 15 of Bunreacht na hÉireann precluded a citizen, such as Mr. Kerins, from being able to invoke the jurisdiction of a court to consider a complaint about the manner in which a committee of a House of the Oireachtas conducted its business in circumstances such as arose in this case;
(iii) The core issues which were before this Court were as to whether that view of the Divisional High Court, as to there being an absolute barrier to the bringing of proceedings of this type, was correct and, if it was not correct, as to what limitations the Constitution actually does impose on the jurisdiction of the Court.
(iv) To the extent that the Court might find that there was not an absolute prohibition, then the key question which arises is as to whether the case which Ms. Kerins sought to bring was on the side of the boundary which permits the courts to intervene.
15.2 For the detailed reasons set out in this judgment the Court has come to the following conclusions:- (i) A committee of a House or the Houses of the Oireachtas has the same constitutional privileges and immunities as the Oireachtas itself enjoys where the committee concerned has had delegated to it by the Oireachtas the function of carrying out a specified part of the legitimate constitutional functions of the Oireachtas;
(ii) A court can receive and consider evidence of what was said at a meeting of a committee, such as the PAC, for the purposes of determining what actions the committee in question was engaged in. In so acting a court does not infringe the prohibition against making members of the House amenable to a court in respect of their utterances as prohibited by Article 15 and does not infringe against any privilege conferred by the same Article.
(iii) Article 15 of the Constitution confers a wide scope of privilege and immunity on the Houses and their committees. Those immunities and privileges derive first from the express terms of the Articles themselves which preclude certain types of actions being taken in the courts. The Court notes that the People, in enacting the Constitution, have chosen to preclude the courts from enquiring into certain matters even though rights may be affected. This is done for the purposes of protecting freedom of speech within the Houses of the Oireachtas and for ensuring that the legitimate constitutional business of the Oireachtas can be carried out without undue interference from the courts. In addition, the separation of powers provided for in the Constitution requires a court to refrain from making orders which would have the effect of impermissibly inhibiting the Oireachtas in its work.
(iv) However, the Court holds that the privileges and immunities of the Oireachtas, while extensive, do not provide an absolute barrier in all circumstances to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas. In so holding the Court was not persuaded by the argument put forward on behalf of the PAC and the State respondents to the effect that the existing case law (which is considered in more detail in the judgment) has only recognised an entitlement of the Court to intervene in cases where the coercive power of the State is being applied to a citizen who is not a member of the Oireachtas.
(v) However, in recognising that there is no absolute barrier, the Court nonetheless recognises that proceedings cannot properly be brought which either
(a) would involve the Court breaching the privileges and immunities expressly set out in Article 15 or in acting in a manner which would invoke a jurisdiction in respect of matters closely connected with those privileges and immunities; or
(b) which would otherwise amount to an inappropriate breach of the separation of powers.
(vi) The Court has concluded that the Dail, as an institution recognised by the Constitution, can be the appropriate defendant in proceedings concerning the conduct of a committee duly appointed by the Dail to carry out part of its constitutional function. The Court has also concluded that it is not appropriate, for constitutional reasons, to name the individual members of a committee as defendants. The Court has indicated that it will require further submissions on what course of action should be adopted in the light of those findings;
(vii) In the context of the preceding paragraph the Court has emphasised that the primary role of providing a remedy where a citizen is affected by unlawful action, which occurs in the course of the conduct of the business of the Oireachtas, lies with the Houses themselves. Furthermore, the Court has emphasised that the Houses have a very wide margin of appreciation as to how their business is conducted, as to the assessment of whether members or committees have acted in an inappropriate way and in providing redress in circumstances where members or committees have been found to have acted inappropriately. The jurisdiction of a court to intervene can only arise where, as a result of an assessment of all of the circumstances of the case, there has been a significant and unremedied unlawful action on the part of a committee.
(viii) The Court has emphasised that what requires to be assessed, before a court can intervene, is the actions of a committee as a whole and not a consideration of individual utterances of members of the committee concerned. The Court has set out in detail the matters which may need to be assessed in order to reach a conclusion as to the proper characterisation of the actions of the PAC as a whole.
(ix) In the circumstances of this case the Court has concluded that it would not be a breach of the separation of powers for the Court to declare the actions of the PAC unlawful in the light of the fact that the PAC was acting outside its terms of reference and that a relevant committee of the Houses of the Oireachtas, the CPP, had come to that view together with the fact that the Court has assessed that the PAC was acting significantly outside of its remit and together with the possibility that it might be appropriate to find, on the evidence, that the PAC had invited Ms. Kerins to attend before it on one basis but has proceeded, when she attended, to deal with her on an entirely different basis.
(x) However, the Court has indicated that it will require further submissions from the parties on the question of whether it is appropriate to characterise the actions of the PAC as a whole as having involved a substantial breach of its obligation to treat Ms. Kerins fairly in the sense of keeping broadly within the bounds of the terms of the invitation which it issued to her. In that context the Court has indicated that a citizen who accepts an invitation to attend before a committee of the Oireachtas is entitled to expect that the committee concerned will act within the boundaries of the invitation.
(xi) The Court has determined that, because the evidence concerning the proceedings before the PAC which are relevant to this case involves transcripts or recordings together with documents, the Supreme Court is in as good a position to form a judgment on the facts as the Divisional High Court would have been had that Court considered that it was legally entitled to consider Ms. Kerins' case on the merits. On that basis the Court will direct further submissions on whether it is appropriate to characterise the actions of the PAC as a whole as having been in significant breach of the basis of the invitation issued to Ms. Kerins.
(xii) The Court has also made clear that, in the event that the issues concerning the proper parties to this case and those factual questions just mentioned are resolved in favour of Ms. Kerins, the Court will make a declaration that the PAC acted unlawfully in respect of Ms. Kerins by virtue of the fact that the PAC operated significantly outside of its terms of reference, that the CPP, being a relevant committee of the Oireachtas, had so concluded and, if the facts are so found, that the PAC operated significantly outside the terms on which it invited Ms. Kerins to appear before it.
15.3 On the basis of those findings it is clear that two matters remain for further consideration. The first concerns the issue of the appropriate defendants in the context of the allegations against the PAC and the second concerns the factual issue concerning the proper characterisation of the actions of the PAC as a whole. The Court proposes to further consider those matters with a view to reaching a final conclusion on this appeal. The Court will list those issues for further consideration on Monday 8th April. The Court gives the following directions to ensure that the matter is ready for that further hearing:- (a) Ms. Kerins should file further written submissions directed solely to those two issues not later than close of business on Wednesday the 13th March next. The PAC will be required to file replying submissions by Wednesday 27th March. Both sets of submissions should be accompanied by an index of any evidential material before the Court which the party concerned wishes to rely on.
(b) Not later than Friday the 29th March the parties should arrange for the filing of an appropriate number of copies of books for the further hearing. A first book should include a copy of this judgment together with the written submissions filed in accordance with these directions. A second book should contain all of the evidential material which either party wishes to rely on. A third book should contain any legal authorities which the parties consider relevant. Each of the books should be put together in the manner contemplated by the statutory practice direction.
(c) The matter will be listed for mention on Wednesday 3rd April to ensure that all matters are in order for the hearing on the 8th.
