Supreme Court rulings highlight role of little-known Dáil committee

One week and two important Supreme Court judgments relating to Oireachtas Éireann. Each turned on how the constitutional limits lie with regards to the separation of powers between the legislature, executive and the courts.

Each ruling also had a very different outcome for those who took the challenge. Last week, the Supreme Court found the Public Accounts Committee had acted significantly outside its remit when it subjected former Rehab chief executive Angela Kerins to a prolonged grilling about her salary and conditions during a marathon seven-hour meeting.

This week, in contrast, it ruled strongly against businessman Denis O’Brien’s challenge over statements made in the Dáil in 2015 disclosing details on the deal that was struck when a company associated with him bought the services company Siteserv off the Irish Bank Resolution Corporation.

In the unusual surroundings of the Aula Maxima in NUI Galway, the Chief Justice Frank Clarke delivered the substantive conclusions on the deliberations of the seven-judge court.

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And while the results were different, the two verdicts were consistent. The best illustration of this was that a crucial component of both judgments was the role that is played by the Dáil Committee on Procedure and Privileges (CPP). This little-known committee is chaired by the Ceann Comhairle of the Dáil. It is the ultimate arbiter for what happens in the House, and has the role of ensuring the parliament’s own standing orders are being observed, and what is said and done in the chamber and its committees is fair and equitable.

In the Kerins case, the court placed a particular significance on the fact the CPP had itself ruled the Public Accounts Committee had acted outside its remit during that particular meeting in 2014.

The background to the other case was that O’Brien had taken an injunction against RTÉ in April of that year preventing it broadcasting details surrounding the sale of Siteserv to a company owned by him.

While the injunction was still in place, both Social Democrats co-leader Catherine Murphy and Sinn Féin’s Pearse Doherty disclosed the details of the deal in the Dáil under privilege. Both alleged the deal was made on terms very favourable to O’Brien’s company.

His High Court challenge relied on two grounds to support his argument that his constitutional rights had been breached. The first was the actual utterances made in the Dáil by Murphy and Doherty. The second revolved around the manner in which the CPP had dealt with his complaint about what had been said in the Dáil.

However, in his appeal to the Supreme Court Mr O’Brien challenged only the CPP’s actions contending it had failed to uphold and vindicate his constitutional rights.

Monday’s judgment was a very strong restatement of the privilege enjoyed by TDs and Senators under Article 15 of the Constitution. The court essentially held that utterances in the Dáil are immune from review from the courts, not “judiciable” in legal terms. So if a right is infringed, it “can only be protected by the Oireachtas and not by the courts”.

It is the CPP which is charged with that responsibility. The CPP is also immune from interference from the courts, the Supreme Court held. Mr Justice Clarke pointed out that if O’Brien’s challenge had succeeded, it would have resulted in the CPP having to review its own decision.

The corollary of that was the Supreme Court would have been “indirectly or collaterally” involved in dealing with what had been said in the Houses by Murphy and Doherty. Essentially, it would be telling the constitutional arbiter of what is said in the Dáil and Seanad, the CPP, to change its own ruling.

“In the courts’s view, such a course of action is impermissible,” said Clarke.

‘Callely exception’

The privilege reserved for Senators and TDs may not be absolute. As Clarke pointed out there is scope for what he called the “Callely exception” (a question that came up during a case involving former Fianna Fáil minister of state Ivor Callely but was not dealt with).

The so-called Callely exception would deal with an “egregious breach” of a citizens’ constitutional rights or a persistent thread of action in the Dáil or Seanad that would lead to a clear failure to uphold such rights.

The court said the circumstances for considering that particular exception did not arise in the O’Brien case and it would wait until a suitable case arose, before considering if such an exception actually exists.

What might that be? Perhaps, making groundless accusations against a person under privilege of being a murderer, or responsible for other terrible crimes?

The ruling will also have far-reaching implications for the CPP. The judgment explicitly referred to the “constitutional obligation on the Houses of the Oireachtas to provide protection for the constitutional rights of citizens in respect of matters that occur within the House”.

This could mean CPP will take on a quasi-judicial role, essentially becoming the supreme court for the Oireachtas: the final arbiter of whether or not constitutional rights have been breached. The upshot may be that its considerations of such breaches may have to be far more legalistic in nature.

“Thus the role of CPP in considering the complaints of citizens may involve the carrying out of delegated constitutional functions,” was how Clarke phrased it.