TD must hand over files to tribunal, court rules

A Supreme Court decision yesterday means that Labour Party TD Brendan Howlin must hand over to the Morris tribunal documents which could disclose the source of allegations made to him of improper actions by certain gardaí; allegations which could compromise the Carty inquiry into Garda corruption in Co Donegal.

In an important decision that there is no absolute constitutional privilege for members of the Oireachtas against production of documents in their possession to parties outside the Oireachtas, the five-judge court unanimously upheld the tribunal's argument that Mr Howlin was not entitled, as a member of the Oireachtas, to withhold the documents.

In his judgment, with which Ms Justice Catherine McGuinness agreed, Mr Justice Adrian Hardiman said Mr Howlin sought to withhold information in circumstances where the information given to him was extremely serious, relating to allegations of the corruption of the criminal process itself by gardaí, and where disclosure could be important to persons seeking to vindicate their good names.

While he was not saying the Dáil Committee on Procedure and Privileges could not protect Mr Howlin's papers despite the manifestly strong and legitimate demand for their disclosure, he was saying that, if the Dáil committee did so, it had to expressly invoke the power in Article 15.10 of the Constitution to protect against a specific demand for disclosure and must be equally clear what specific papers the protection applies to. The committee had failed to do so.

Mr Justice Hardiman also said he was wholly unconvinced by Mr Howlin's argument that the "innocence at stake" exception to a privilege applies only in a criminal trial. The Oireachtas had established a tribunal to investigate claims that a large number of convictions had been achieved by planting evidence and that two assistant commissioners of the Garda were aware of this. This was an "innocence at stake" situation in an acute form".

In a separate judgment, with which Chief Justice Mr Justice John Murray and Ms Justice Susan Denham agreed, Mr Justice Hugh Geoghegan held that whatever powers the Dáil committee were given under Article 15.10 to protect the private papers of members, the committee had not validly exercised those powers in this case.

While it was unnecessary at this point to express a formal or final view on whether "protect" (as set out in Article 15.10) encompassed privilege for documents in the possession of members against parties outside the Oireachtas or in court or tribunal proceedings, he failed to see how either House of the Oireachtas could avail of Article 15.10 to plead absolute privilege over members' documents in proceedings in a court or tribunal.

The proceedings arose after the Morris tribunal made discovery orders in 2003 against Mr Howlin and Fine Gael MEP Jim Higgins requiring them to disclose documents relating to allegations made to them, which both politicians put before the Minister for Justice in 2000.

The allegations were that two senior gardaí may have acted with impropriety with the effect that the inquiry by Assistant Commissioner Kevin Carty into matters in Co Donegal might be compromised.

Both politicians declined to reveal the sources of their information and took High Court proceedings challenging discovery orders against them by the tribunal. The proceedings against Mr Higgins were resolved after his source of information - Co Donegal publican Frank McBrearty snr - agreed to disclosure of his identity.

The High Court last year quashed the tribunal's discovery order in Mr Howlin's case, and the tribunal appealed that decision to the Supreme Court which, in reserved judgments yesterday, allowed the appeal.

Mr Justice Hardiman agreed with the High Court that any privilege or immunity conferred on members of the Oireachtas by Article 15.10 regarding their "private" papers was the privilege of the Dáil itself and not the individual member.

He held that the enabling power in Article 15.10 was different in kind from the privileges or immunities conferred on deputies by Articles 15.12 and 15.13. The latter two provisions conferred privilege regarding statements in either House of the Oireachtas.

Because the power in Article 15.10 was clearly that of the House, a decision whether or not to grant immunity from otherwise lawful disclosure to the private papers of a member was that of Dáil Éireann itself or its lawful delegate, he said.

A resolution of the committee of February 6th, 2002, could not be regarded as a proper and valid exercise of the Article 15.10 power to confer protection on papers of a member.