“Utterances” or “actions”? Parliamentary privilege in Kerins v Dáil Éireann, Ireland and the Attorney General

Speed Read

The long running case of Angela Kerins v Dáil Éireann, Ireland and the Attorney General has resulted in a third Supreme Court judgment ([2024] IESC 24) (Kerins 3) concerning the conduct of an investigation by the Public Accounts Committee of Dáil Éireann (the PAC). On this occasion, the Supreme Court has clarified the extent to which the courts may consider speech or debate by individual members of the Oireachtas. It also determined that the Irish Constitution precludes Ms Kerins from claiming damages for those statements.

Background

The PAC is comprised of sitting members of Dáil Éireann and is tasked with examining and reporting to the Dáil on the expenditure of public funds. In February 2014, the PAC commenced an investigation into expenditure incurred by a charity known as the Rehab Group.

Ms Kerins was, at that time, the Chief Executive of the Rehab Group. During the PAC’s public hearings as part of the investigation, Ms Kerins was subject to considerable criticism by certain members of the PAC. Ms Kerins subsequently issued High Court proceedings against the individual members of the PAC and others (though Dáil Éireann was later substituted for the individual respondents) seeking, among other things, damages for personal injuries and damage to her reputation.

Utterances vs Actions

Article 15.13 of the Irish Constitution provides that members of the Oireachtas: “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”. However, “utterances” had been considered by the Supreme Court in its two prior judgments:

• In its first judgment ([2019] IESC 11) (Kerins 1), the Supreme Court held that an Oireachtas committee enjoys the privileges and immunities provided for in Article 15 in circumstances where it is carrying out a specified part of the Oireachtas’s legitimate constitutional functions. In this context, however, the Supreme Court confirmed that those privileges and immunities do not impose an absolute barrier to litigation. In particular, they do not prevent the courts considering evidence of what has transpired in the Oireachtas (or, in this case, the PAC), with a view to determining the lawfulness of the collective actions taken.
• The Supreme Court’s second judgment ([2019] IESC 42) (Kerins 2) granted a declaration that the PAC had acted unlawfully on the basis of, in part, evidence of statements made by individual members of the PAC. It also confirmed that the actions of individual members of the PAC could be attributed to the committee itself and, for the purposes of making that declaration, the Dáil could be deemed legally responsible for the PAC’s actions.

In Kerins 3, Ms Kerins argued that statements made by individual members of the PAC could be characterised as the committee’s collective “actions” in conducting an unlawful hearing rather than individual, non-justiciable “utterances” published during that hearing.

The High Court

The substance of Ms Kerins’s claim was assessed by the High Court in the context of an application she issued for discovery and inspection of documents. That application sought disclosure of documents relating to, among other things, the decision to commence the PAC’s investigation and private meetings and communications considering its conduct. The respondents resisted the application on the grounds that all responsive documents were privileged and relied, in part, on the protections set out in Article 15.

As a preliminary matter, the High Court determined that Article 15.3 precluded it from considering the discovery application “because the gravamen of [the] claim calls for judgment on speech and debate by members of Dáil Éireann.” The High Court held that it could not receive documents relating to parliamentary speech or debate in evidence and it could not make any comment or finding on its propriety. Its jurisdiction, if any, in respect of such statements could only be exercised in exceptional circumstances, as it would inevitably involve making members of the Oireachtas amenable to the High Court.

Ms Kerins appealed that decision and was granted leave to bring her appeal directly before the Supreme Court.

Outcome of the Appeal

The Supreme Court agreed that the discovery application could not be decided without first determining whether Ms Kerins’s claim for damages could be maintained and whether she was correct in arguing that, in her case, statements by individual members of the PAC only went to an assessment of its collective conduct.

The Supreme Court rejected that argument and dismissed the appeal. It held that:

• Kerins 1 and Kerins 2 set out a very narrow and limited development of the law on the justiciability of words used by members of the Oireachtas.
• Ms Kerins’s claim specifically related to the way in which the PAC had exceeded its jurisdiction, i.e., how Ms Kerins was treated by the PAC and what was said by its individual members, as opposed to the mere fact that it had exceeded its jurisdiction.
• It would be inconsistent with both the logic and the reasoning of the existing jurisprudence to recharacterise the PAC’s “words and utterances” as “conduct and actions” and such a finding would effectively remove the privileges provided for in Article 15.
• However framed, Ms Kerins’s claim could not be advanced without making the Dáil’s members “either collectively or individually amenable in a most direct way to a court” in breach of Article 15.

The Defendants and the ‘‘Dominant Purpose’’

The appeal did not challenge the constitutional principle, as summarised by the High Court, that the PAC’s members are generally immune from suit in civil courts “irrespective of whether they act with malice or ill will or abuse their constitutional immunity and even if such abuse involves members acting in concert.” Parliamentary speech or debate and matters which are “sufficiently closely connected” to it cannot directly, indirectly, or collaterally be the subject of an assessment by the courts.

The courts may, at least in some cases, consider speech and debate by members of the Oireachtas without breaching that prohibition, but the exemption set out in Kerins 1 and Kerins 2 is very limited in scope. The Supreme Court’s latest judgment in Kerins 3 confirms that it will not apply if the dominant purpose of the litigation is to review the tone or manner or questioning, and / or if the speech is, in substance, the subject of the proceedings, as in Ms Kerins’s case.

For further information on this topic please contact Nicholas Cole, Partner, Christina Moran, Senior Associate, or any member of ALG’s Disputes & Investigations team.

Date published: 31 July 2024