Dr Tom Hickey: Spectre of litigation hovers over parliamentarians after Kerins judgment

Dr Tom Hickey
Dr Tom Hickey

Dr Tom Hickey, assistant professor at DCU School of Law and Government, reflects on the Supreme Court’s recent judgment in Kerins v McGuinness & Ors [2019] IESC 11.

Angela Kerins was bullied by some members of the Public Accounts Committee in the course of their questioning of her as chief executive of the Rehab charity in 2014. More technically, the PAC surely breached her constitutional right to fair procedures: she was questioned about some quite significant things despite not having been given advance notice by chairman John McGuinness, for example. And, in any event, for other technical reasons, the entire episode went beyond the PAC’s remit. Certain members of the PAC diminished the committee and indeed our parliament by their behaviour.

Most observers would accordingly think that this week’s Supreme Court judgment in favour of Angela Kerins was about right: it is the function of courts to administer justice, and that is what it did in this instance, by effectively ruling that the PAC had acted unlawfully.

But it is not as simple as that.

Our Constitution grants a very wide immunity to the Houses of the Oireachtas, essentially to be master of their own proceedings. It also liberates parliamentarians from the threat of being sued – or indeed for being in any way “amenable to any court” or any authority other than the Oireachtas itself – for any “utterance” they make in the Oireachtas. This immunity is indeed abused from time to time. But it has a profoundly important democratic purpose. It means that the people’s elected representatives cannot be cowed in the performance of their constitutional functions.

When we consider the constitutional functions of the Oireachtas, we tend to think first of its making laws for the State. But they go much beyond legislating. An equally important function is one that is commonly overlooked, including sometimes by judges: that pertaining to accountability. Under the Constitution, it is to the Oireachtas that Government answers for what it does and fails to do, every week and every month. It is also to the Oireachtas that other public and indeed sometimes private actors answer, from time to time, where their work involves the expenditure of public money or otherwise engages the public interest.

As the master of its own proceedings, and for good reasons, the Oireachtas some decades ago decided to do much of that accountability-oriented work through specialist committees rather than on the floors of the Dáil and Seanad.

In 2017, a three-judge High Court rejected Angela Kerins’ case against the PAC. They did so quite emphatically on the basis of this article 15 immunity, describing it as “fundamental to the separation of powers” and a “cornerstone of constitutional democracy” concerned “not with protecting parliamentarians, but the democratic process itself”.

In the appeal judgment this week, a seven-judge Supreme Court – although repeatedly emphasising that article 15 does indeed confer a robust immunity on the Oireachtas – not only found the matter justiciable (ie capable of being considered by a court) but indicated that, subject to further submissions in respect of details on things like John McGuinness’s conduct as chair, it is open to finding in Kerins’s favour on the merits.

Here things get technical, but interesting in respect of the broader implications. In 2017, the High Court judges did not entertain the argument that the immunity might not apply in respect of committee work in the same way as it would in respect of proceedings on the floors of the Dáil or Seanad; for them, the floors and committee chambers had equal standing in this respect. The Supreme Court judges agreed with this at the level of broad principle, and they say all the right things about the importance of committees in modern parliaments. But they added a critical qualification.

They conceive of Oireachtas committees as delegates of the Oireachtas proper, thus in some sense distinguishing them from the Oireachtas itself. They then hold that the further a committee strays from the remit given to it by the Oireachtas, the more likely it is to lose the constitutional immunity it would otherwise enjoy.

In the Angela Kerins case, the judges were satisfied that the PAC had in fact lost this immunity. In finding this, they relied on the fact that during this 2014 episode a different Oireachtas committee – the Committee on Procedure and Privileges (CPP) – had denied the PAC’s application to it to compel her attendance after she had refused a subsequent invitation, following her bad experience the first time around.

This implied that the Oireachtas itself understood the PAC as having strayed beyond its remit, which in turn was critical to the judges’ being satisfied that the constitutional immunity fell away such that they, as judges, could intervene in the work of parliament.

This is one aspect of the judgment that I suggest – respectfully, and happily acknowledging that my own understanding of the separation of powers has been profoundly influenced by the work of some of these very judges – is an unpersuasive interpretation of the Constitution. It is also this aspect that I think is ultimately likely to compound the damage done by the Abbeylara decision (2002) to the accountability function of the Oireachtas.

Sure, the Supreme Court judges make the distinction between committees and the floors of the Houses as fine as they possibly can, and they present all manner of obstacles to future courts so as to set what in the abstract might look like a very high threshold for judicial intervention. But, in the real world, following this judgment, the spectre of litigation hovers more menacingly over our parliamentarians. Indeed, in this real-world episode, though the constitutional order itself could hardly be said to have been placed in jeopardy by the admittedly appalling conduct of these parliamentarians, the judges have ultimately signalled that they will intervene.

When we consider again the overall purpose of the immunity conferred by the Constitution on the Oireachtas, we can readily appreciate that it really is the possibility of interference, rather than interference as such, that is the concern. Parliamentarians will now likely “lawyer-up” and err on the side of caution. The accountability function of the Oireachtas requires that our parliamentarians be fearless, not cautious.

Tags: DCU

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