Howlin wins court challenge to tribunal

Labour Party TD, Mr Brendan Howlin, has won his High Court challenge to a ruling of the Morris tribunal requiring him to provide the tribunal with confidential information which he received in relation to certain alleged Garda activities in Co Donegal.

In a reserved judgment, Mr Justice Kearns yesterday quashed a ruling made on February 28th last by Mr Justice Morris, chairman of the Morris tribunal, directing Mr Howlin to hand over to the tribunal all documents he had received relating to allegations that three members of the Garda, including two senior members, may have acted with impropriety.

Mr Justice Kearns found that the documents which the tribunal sought to have discovered were "private papers" for the purposes of Article 15 of the Constitution, which deals with the powers of the Houses of the Oireachtas to protect its "official documents" and the "private papers" of its members.

However, Mr Justice Kearns added, Article 15 only confers absolute privilege where statements or utterances under inquiry were first made in the Dáil. Even where utterances were first made in the Dáil, there could still be a second inquiry to establish whether subsequent statements outside the House replicate exactly or in substance the Dáil utterances.

He said Mr Justice Morris was entitled to find as a fact that Mr Howlin had first given utterance to the information in question outside the Dáil so that an inquiry into that utterance was not the subject of privilege. He noted Mr Howlin had first conveyed the information to the then minister for justice at a meeting in June 2000, in circumstances where no privilege had attached to it.

The judge noted that the tribunal chairman had, while finding that the documents which the tribunal sought were "private papers" under Article 15, gone on to conclude that the Committee on Procedures and Privileges was required to pass a specific motion to exercise that power and had failed to do so.

Mr Justice Kearns said he believed the chairman was incorrect in so finding. He said the Dáil had resolved on July 6th, 2001, that the power conferred by Article 15 on each of the Houses of the Oireachtas to protect their official documents and private papers of members was thereby conferred on the CPP.

On February 6th, 2002, the CPP had authorised the parliamentary legal adviser to instruct counsel on behalf of the Dáil to apply for representation at the Morris tribunal and to make submissions concerning the powers and privileges of members.

A similar authorisation was given in respect of the Seanad. Counsel for the Oireachtas had told the tribunal his instructions were to make representations on issues of parliamentary privilege which might arise.

What could at worst be described as "a minor technical infirmity" in the motion of February 6th, 2002, or the failure to pass a further motion could not be deemed sufficient to frustrate the wishes and intentions of the House, Mr Justice Kearns said.

The judge also held the chairman was not entitled to treat any privilege created by Article 15 as a form of qualified privilege to be determined and measured according to common law principles. Article 15.10 gave each House "power to protect its official documents and the private papers of its members".

The terminology of that provision appeared not confined to powers to be exercised only within the confines of the Houses of the Oireachtas but "more as an enabling power whereby either House may render the private papers of members immune from discovery and production elsewhere by declaring them to be so". He held that the power created a complete protection in the nature of a privilege, being one of a unique character which was created by the Constitution and which was either self-executing or which required only the expression of the will of the House to give it full constitutional effect

Any interpretation that the power was somehow qualified would leave the judicial branch on a potential collision course with either House whenever exercising its power under Article 15.10, he said.

He was satisfied the intent of the provision was to expressly acknowledge the special status of the private papers of members.