The Angela Kerins case: A matter of rights and responsibilities

Decision protects democracy with a clear dividing line between the powers of the Oireachtas and the courts

 

The decision of the High Court to uphold the doctrine of the separation of powers in the Angela Kerins case is welcome. It has laid down a clear dividing line between the powers of the Oireachtas and the courts.

A number of judgments against Oireachtas committees over the years had created some confusion about where that line lay but the High Court has now provided admirable clarity. The judges pointed out that for more than 400 years common law jurisdictions, of which Ireland is one, have recognised 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,” said the judgment.

The decision is vitally important for the work of the Dáil and Seanad and for Oireachtas committees. It should give members of both Houses the confidence to pursue matters of public interest in the knowledge that they will not be found in breach of the law for expressing their views. However, that should not be interpreted by TDs and senators as giving them carte blanche to say whatever they like in parliament or to abuse people who give evidence at committee hearings.

The court judgment accepted some of the things said by members of the Public Accounts Committee about Ms Kerins were extremely damaging to her reputation. It also noted she need not have appeared before the committee at all or answered any of its questions. If Oireachtas committees expect people to appear voluntarily to answer questions, it should be understood that they will be treated with respect.

The Oireachtas has signally failed to come up with a code of conduct linked to appropriate sanctions to deal with TDs and senators who abuse their constitutional right to free speech. Other parliaments have strict rules on this issue. For instance the European Parliament can withdraw the immunity of MEPs who abuse their privileges. As a corollary to the court judgment, the Oireachtas needs to devise an enforceable code of conduct for its members in order to protect the rights of citizens.

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