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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Howlin v. Morris & Ors [2003] IEHC 55 (13 October 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/55.html Cite as: [2004] 2 ILRM 53, [2003] IEHC 55 |
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223/03 JR
BETWEEN/
APPLICANT
RESPONDENT
NOTICE PARTIES
Judgment of Mr. Justice Kearns delivered the 13th day of October 2003.
This is an application to quash an order of discovery made by the respondent on the 28th day of February, 2003 which directed the applicant to make discovery on oath of and produce to the Tribunal of Inquiry into complaints concerning some Gardai in the Donegal Division (hereafter referred to as the "Morris Tribunal") all "notes, documents, records, statements, memoranda and correspondence relating to information received by Mr. Brendan Howlin T. D., from the 25th day of June, 2000 until the 4th day of July, 2000 (both dates inclusive) in respect of allegations that three members of An Garda Siochana (including two senior members) may have acted with
impropriety and relating to the making of allegations to Mr. Brendan Howlin, T. D., including all telephone, facsimile and mobile phone records relating thereto (including the names and addresses of the subscribers' accounts relevant to the said incoming and outgoing telephone calls or facsimile communications) in respect to the said period from the 25th day of June, 2000 until the 4th day of July, 2000 (both days inclusive). "
In a nutshell, the applicant has refused to disclose his sources of information, and in particular his telephone records, contending that the material in question is absolutely privileged under and by virtue of Article 15 of the Constitution. Alternatively, the applicant contends that the material sought is privileged at common law and that the respondent wrongfully exercised his discretion in directing discovery in the particular circumstances of the case.
The Tribunal was set up pursuant to resolutions of Dail Eireann and Seanad Eireann on the 28th day of March, 2002 to inquire urgently into a number of matters of public importance. The respondent is the sole member of that Tribunal. The terms of reference of the Morris Tribunal are contained in the Instrument signed by the Minister for Justice, Equality and Law Reform dated the 28th day of April, 2002.
Term of Reference (h) required the Tribunal to inquire into:-
"Allegations contained in documents received by Deputy Jim Higgins on 25th June, 2000 and information received by Deputy Brendan Howlin on 25th June, 2000 that two senior members of An Garda Siochana may have acted improperly. "
By letter dated the 17th day of December, 2002 the Tribunal wrote to the applicant's solicitors indicating that the respondent was of the view, subject to such submissions or representations to the contrary as might be made, that it was necessary
for the purpose of the Tribunal's functions to make an order for discovery against the applicant, and the reasons why it was considered necessary for such discovery to be made were set out fully in the following terms:-
"The Tribunal understands from statements made by your client, Mr. Brendan Howlin T. D. which are in the possession of the Tribunal, that on the 25th June, 2000 Mr. Howlin had a discussion with an informant concerning the Garda investigation of matters in Donegal. Mr. Howlin, apparently, received a phone call from a colleague on the evening of the 25th June, 2000 who, it is suggested, in the past had kept Mr. Howlin informed about the situation in Donegal concerning the Garda Siochana and the McBrearty family. The evidence coming to the informant was, apparently, coming from a Garda based in Donegal who had provided the informant with "most reliable information in the past ". Allegations were made by this informant that a Detective Sergeant John White had used criminals to give perjured evidence against Mr. McBrearty and had planted evidence on an associate of Mr. McBrearty and a youth in Lifford. It was also suggested that Sergeant John White was in a position to blackmail two Assistant Commissioners. Apparently, the Donegal based Garda had been approached by a Senior Detective from Dublin who had told him that Sergeant John White "was being looked after ". The informant's primary concern was that the Carty investigation was compromised. It was noted by Mr. Howlin that a case "with Ballymun connection" would cause difficulty for Assistant Commissioner Carty and that Sergeant John White did "dirty work" for Assistant Commissioner Carty.-4- Following a meeting between your client at his home with Assistant Commissioner MF Murphy and Detective Superintendent P. Brehony, Mr. Howlin agreed to revert to his informant in order to establish if his informant would speak to the investigating Gardai. On the 4th of July, 2000, Mr. Howlin again met with the investigating members of An Garda Siochana and informed them that his informant was not willing to give his name to the Gardai Mr. Howlin also declined to furnish voluntarily the records of his telephone for the relevant period, saying that to do so would seriously compromise his role as a public representative, and the confidence upon which persons such as his informant were entitled to rely, when approaching a public representative with revelations of wrong doing which were of public importance. "
The letter went on to point out that in the view of the Tribunal it was necessary that the sources of the allegations be interviewed. And the letter continued: -
"It is important that any statements or real evidence in the possession of the informants in respect of the allegations be fully investigated and assessed by the Tribunal. The allegations made involve the alleged commission of criminal offences. For members of An Garda Siochana of any rank, to withhold evidence in respect of such matters would be most serious, if the allegations are true. Their duty is to assist in the investigation of crime and to assist this Tribunal. If, on the other hand, it is alleged that the allegations made by the informants are untrue, it is important for the Tribunal to understand the evidential basis upon which these allegations were made. If the allegations were falsely made it is important that the Tribunal understand the motivation for such falsehood. "
The respondent then set out twelve reasons why he considered it appropriate to make the order.
Reasons 5-6 noted the meeting between the applicant and Assistant Commissioner Murphy and Superintendent Brehony and further noted that in the aftermath of that meeting Mr. Howlin had contacted his informant who stated he was not willing to have his name given to the Garda Siochana but who also informed him that the Garda in Donegal would give evidence in court. On Tuesday, the 27th January, 2000, Senator Jim Higgins, who had also received by fax similar confidential information, together with Mr. Howlin, met the Minister for Justice, Mr. John O'Donoghue and discussed the various allegations with him.
Noting that the applicant had been in telephone contact with the informant in relation to the allegations the subject matter of term of reference (h), the respondent intimated a date and time when the Tribunal would hear submissions in relation to the making of the proposed order. A letter similarly setting out the same factual material was sent to the first named Notice Party as supplier of the landlines and other telephone facilities to the applicant. The position of the first named Notice Party throughout the proceedings which followed, including those before this Court, is to abide any outcome or order of the Court which might be made.
The hearing of objections in relation to the making of the proposed discovery orders took place on the 18th February, 2003. Prior thereto, on the l0th February, 2003, counsel on behalf of the Committee on Procedure and Privileges applied for and was granted limited representation before the Tribunal in relation to the making of the proposed discovery orders. The Committee has also been represented in the hearing before this Court.
Before proceeding to consider the ruling and determination of the respondent made at the conclusion of the submissions in relation to discovery, it is appropriate at this juncture to refer to the relevant provisions of Article 15 of the Constitution which deals with the "constitution and powers" of the National Parliament.
The relevant portions of Article 15 with which this case is concerned are the following:-
"10. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.12. All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.
13. The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself. "
On the 6th day of July 2001, each House of the Oireachtas approved the following resolution:-
"That, whereas Article 15. 10 of the Constitution provides that each House of the Oireachtas shall have power to protect its official documents and the
-7- private papers of its members, Dail Eireann (Seanad Eireann) resolves that the said power is hereby conferred upon the Committee on Procedure and Privileges and may be exercised by that Committee on behalf of Dail Eireann (Seanad Eireann) accordingly. "
On the 6"' February 2002, each of the Committees on Procedure and Privileges passed a motion in the following terms:-
"That the Committee on Procedure and Privileges of Dail Eireann (Seanad Eireann):Noting Article 15 of the Constitution,
Noting the privilege enjoyed by members of Dail Eireann (Seanad Eireann) in respect of information received from members of the public,
Noting the assertion of privilege being made by Deputy Howlin (Senator Higgins) before the Tribunal known as the Tribunal of Inquiry into complaints concerning some Gardai of the Donegal division,
Hereby authorises the Parliamentary Legal Advisor to instruct on behalf of Dail Eireann (Seanad Eireann) counsel to apply for representation at the Tribunal, and if granted representation, to make submissions to the Tribunal concerning the powers and privileges of Dail Eireann and its members. "
On the 18"' day of February, 2003, the respondent invited written and oral submissions on the following points:-
(a) "Whether there is privilege attaching to the information sought by the Tribunal by virtue of Articles 15(12) and (13) of Bunreacht na hEireann (b) Whether there is privilege attaching to the information sought by the Tribunal by virtue of Article 15(10) of Bunreacht na hEireann
-8- (c) Whether there is privilege attaching to the information sought by the Tribunal by virtue of the common law and
(d) the nature of privilege. "
Part of the material which was before the respondent on the 18"' February, 2003 was the affidavit of the applicant sworn on the l5c day of February, 2003 in which he deposed as follows:-
"3. As the Tribunal is aware, I received confidential information from an informant on the 25`h day of June, 2000. 1 received this information in my capacity as a member of Dail Eireann. This information was imparted and received in confidence and the fact that it was imparted in confidence was clearly understood between my informant and me. 1 believed at the time, and indeed still believe, that the identity of my informant or any information, document or thing tending to identify my informant, was and is subject to a clear and absolute privilege.4. Subsequent to receipt of the information I made a number of speeches and contributions to Dail Eireann in relation to Garda activity in Donegal. While the information imparted to me on the 25th day of June, 2000 was not repeated verbatim by me to the Dail, it did form part of the material on which I acted in making such speeches and contributions in that without having to be satisfied as to its veracity, I was concerned to ensure that the Minister for Justice, Equality and Law Reform would take steps to investigate the matter. 1 beg to refer to a book of speeches and contributions in Dail Eireann made by me on those topics ... accordingly, the information imparted to me on the 25th day of June, 2000 was used by me for the purpose of making utterances to Dail Eireann. "
Amongst the utterances referred to by the applicant was one dated 20th November, 2001 when, in the course of a debate in Dail Eireann, the applicant stated as follows:-
"The Minister has repeatedly acknowledged that the opposition parties have been most responsible and restrained in the face of these serious claims and allegations. For example, when Deputy Jim Higgins and I came into possession of startling allegations relating to one of the Garda investigations we did not go rushing to the media or come barging into the House, where the allegations could have been repeated under the protection of absolute privilege. That was not the route we chose to take. On the contrary, we went directly to the Minister for Justice, Equality and Law Reform and informed him of our concerns. A Senior Garda, An Assistant Commissioner, was appointed to investigate the allegations. It is almost a year and a half since Deputy Higgins and 1 spoke to the Minister in respect of these matters. We gave full statements at the time, but have heard absolutely nothing from the investigation or the Minister in the interim. Is the Minister in a position to justify what has happened in this instance? A simple net issue was presented to him at the time, but we have not received any results from the third of the inquiries put in place to discover the truth about these matters. "
In the course of another debate in Dail Eireann on the 22nd March, 2002, the applicant stated as follows:-
"The substantive investigation into the situation in Donegal was only one of the matters we asked the Minister to examine. Deputy Jim Higgins and I went to see the Minister in the summer of 2000 and on foot of information Deputy Higgins and I gave to the Minister, an investigation was established. I hold in-10- my hand my statement to the Senior Members to the Garda Siochana who called to my house in Wexford to take a statement from me. They were Assistant Commissioner Fachtna Murphy and Detective Superintendent Pat Brehony. I have heard nothing more since. I gave the statement on 4'h July, 2000. In his speech to the House last November the Minister referred to ongoing investigations, these investigations disappear into the ether. "
The ruling or decision of the respondent, the subject matter of the present judicial review proceedings, was delivered or issued on the 281' February, 2003 in the course of which the respondent indicated that in his view discovery was necessary in order to carry out the work of the Tribunal, whereupon he proceeded to make an Order for discovery in the terms already described.
The Ruling
In the course of his determination, the respondent expressed himself satisfied that the information which came into the possession of the applicant was passed to him on the basis of confidentiality and in his capacity as a member of Dail Eireann. At p. 8 of the ruling, the respondent found as a fact that the applicant had not relied upon any information given to him over the telephone for the purposes of any utterance in Dail Eireann. The respondent also expressed his satisfaction at this part of the ruling that inquiries to date had not established any factual basis for the allegations conveyed to Senator Higgins or the applicant. Nor had it been possible for the Tribunal to trace the identity of either respondent's informant or informants. Finding also that the work of the Tribunal had been gravely hampered by reason of the inability of the Tribunal to establish the identity of the informants, the respondent
expressed his satisfaction that discovery was necessary in order to carry out the work of the Tribunal.
In dealing with the question of utterances, the respondent accepted that no member of Dail Eireann could be made amenable for any utterance made by him in Dail Eireann before the Tribunal. The respondent drew a distinction between the facts of the present case and those of A.G. v. Hamilton (No. 2) [1993] 3 I.R. 227 in which it was held that the jurisdiction of a Tribunal to compel answers to questions was ousted, because in that case it was found that three Dail Deputies had made utterances in Dail Eireann in respect of which the attempt to compel them to answer questions before a Tribunal could only be seen as an attempt to make them amenable in respect of the same matters to an authority other than the Dail. In the present case the respondent stressed that no effort was being made to make the applicant amenable in respect of any Dail utterance.At p. 10 the respondent found, notwithstanding the affidavit of the applicant and the exhibits therein referred to, that the applicant had not used any information received by him to make any statement or utterances in Dail Eireann. The statements which he had made "related to the fact that the Deputy held meetings with the Minister and provided him with information which the Deputy felt should have caused the Minister to react. The documents or records of which discovery and production is sought are not referenced to any utterance made within Dail Eireann to which the provisions of Article 15.13, as interpreted in the Hamilton (No. 2) decision or any other authorities cited before me, apply. "
While the ruling of the respondent did not expressly advert to the applicant's written submission to the Tribunal on this point, a passage of some importance appears at p. 4 of the applicant's legal submission as follows:-
"The information communicated to Deputy Howlin could, quite properly, have been used by him for the purpose of his statement to Dail Eireann. Had Mr. Howlin made such a statement to Dail Eireann, there is no doubt that the existing discovery applications would have to fail. It is difficult to see why, on a proper reading of the constitutional provisions, Mr. Howlin should be in a worse position because he chose not to give these allegations the widespread currency involved in a statement to the Dail but rather report these allegations to the responsible officers of government who had an interest in hearing them ".
A similar admission that the said matters were not first raised in the House appears at p. 14 of the submission furnished to the Tribunal on behalf of the Committee.
On the issue of the privilege contended for in relation to documents, including the telephone records of the applicant, the respondent expressed his satisfaction at various points in his ruling (pp. 11, 12 and 13) that the material in question constituted "private papers" for the purposes of Article 15.10 of the Constitution because they related directly to communications made by members of the public to members of Dail Eireann in connection with their work as members of Dail Eireann.
He then proceeded to consider whether the resolutions of the 6th July, 2001 and 6th February, 2003 were adequate to constitute a valid exercise of the power conferred on the Committee on Procedure and Privileges so as to extend privilege to these private papers of the applicant. At p. 13 he stated:-
"I am satisfied that there was a lawful delegation of this power by Dail Eireann and Seanad Eireann to their respective Committees on Procedure and Privileges by the resolution of the 6`" July, 2001. However, in my view the exercise of such a power by the Committee on Procedure and Privileges-13- requires the passage of a motion by the Committee to that express intent. No such motion was ever passed. The only relevant motion was that to which reference has already been made. This does not contain a purported exercise of the power and merely authorises counsel to seek representation and to "make submissions" to the Tribunal concerning the powers and privileges. Accordingly, I am satisfied that while the power may be vested in the respective Committees to extend privilege to the "private papers" of members, this power has not been exercised. "
The respondent then proceeded to consider whether, even if incorrect in his rulings on the constitutional arguments, the applicant could nonetheless assert a common law privilege. In this context, the respondent adopted the approach of Geoghegan J. in Goodman International v. Hamilton (No. 3) [1993] 3 I.R. 320 and concluded that there was a discretion in the Tribunal Chairman as to whether he would insist on disclosure or not. In considering how he should exercise this discretion, the respondent stated as follows (at p. 16):-
" I have no doubt whatever that it is preferable, that information which is available to two responsible members of the Oireachtas from individuals believed by them to be reliable, and which indicates gross misconduct amounting to criminal misconduct on the part of two Assistant Commissioners of An Garda Siochana and one Detective Sergeant, should be made available for scrutiny and examination by the Tribunal, rather than that Deputy Howlin and Senator Higgins should be allowed to maintain the confidentiality of their informants. It has already been noted that the information or evidence made available to the informants who conveyed it to Deputy Howlin and Senator Higgins may prove or tend to prove the innocence of individuals who have-14- been wrongfully convicted. Furthermore, at various stages it has been indicated by Deputy Howlin and Senator Higgins that information conveyed through their informants to them emanated from retired or serving members of An Garda Siochana. In my view, if there is any truth whatever in these allegations, fundamental questions arise as to the integrity of members of An Garda Siochana. In justice and fairness to the members of the Garda Siochana concerned, it should be noted that comprehensive enquiries made to date revealed no evidence to substantiate the allegations. However, if evidence or information exists in the hands of any former member or serving members of An Garda Siochana, showing or tend to show the innocence of persons wrongfully convicted on the basis of alleged wrong doing by members of An Garda Siochana it would be entirely wrong if such information or evidence could be withheld from the Tribunal and that its truth would not be inquired into by me in carrying out my duties carrying out my duties under paragraph (h) of the Terms of Reference. "
In essence therefore the respondent considered that the "innocence at stake" consideration was a public interest consideration which had application having regard to the particular remit of the Tribunal, and further that it was a consideration of such importance in the instant case as to prevail over another competing public interest, namely, that matters of actual or potential public concern might confidentially be brought to the attention of elected national public representative by constituents or members of the public without fear of the confidence being broken.
The respondent having made the consequential discovery order in the terms already cited, the applicant thereafter sought leave to bring the present judicial review proceedings.
By Order dated the 240 March, 2003 the High Court (O'Neill, J.) gave leave to the applicant to commence the present proceedings.
Amongst the grounds upon which leave to argue was given were the following:-
(a) that the respondent had erred in law in holding that while the said (telephone) records were `private papers' of members of the Oireachtas within the meaning of Article 15.10, the said Houses had not exercised their constitutional powers to protect the said papers. (b) that the respondent had further erred in law insofar as he held that neither the actions of the applicant nor the Houses of the Oireachtas (whether through the aegis of the Committee of Privileges or otherwise) in seeking to assert and defend the said constitutional privilege, satisfied the requirements of Article 15.10 and that the passage of the specific motion to this effect asserting (or, as the case may be, conferring) privilege in respect of particular private papers of members was necessary to this effect. (d) that the respondent had erred in law in making an order on the 28th day of February, 2003, directing the applicant to make discovery of and produce documentation, to include documentation which in all the circumstances could disclose the identity of the source or sources of information given to the applicant by a member/members of the public in confidence as an elected representative and to which the privilege and/or non-amenability afforded to the applicant as a member of the Oireachtas, pursuant to Article 15 of the Constitution attached. (g) that the respondent erred in law in applying the `innocence at stake exception'-16- inasmuch as if the said documents are protected by Article 15.10, the said protection is absolute and is not subject to exceptions or qualifications. Furthermore, the respondent had had no regard to the countervailing public interest that communications between members of the public and Oireachtas members remain confidential. There was furthermore no evidence before him as would justify the conclusion that the disclosure of such information was essential to protect the liberty of any other third party, so that the `innocence at stake' exception would actually apply.
(h) If (which was denied) the respondent was entitled to balance the applicant's rights and interests under Article 15 against other public interest considerations, the decision of the respondent was bad in law, unreasonable and against the weight of the evidence. The respondent had erred in law in holding that the `innocence at stake' exception had any application to a Tribunal of Inquiry, had erred in law and on the evidence in holding that disclosure of sources was necessary to vindicate the rights of members of the Garda Siochana, and had erred on the facts in relying on speculation and/or hearsay to outweigh the proved or admitted fact of the benefit to the public interest in preserving confidentiality of such sources.
Decision
There are two matters which I propose to deal with at the outset. The first relates to the status of the telephone records in respect of which discovery is now being sought, together with any other notes of telephone conversations which the applicant may have. In this judicial review and at p. 11 of his written submissions, Mr. Collins S.C. for the respondent has sought to now advance an argument that the
applicant's telephone records are not in fact "private papers " within the meaning of Article 15 of the Constitution. The relevant portion of the submission reads:-
"In order that the papers of any member of the House of the Oireachtas are in a position to be protected, it is necessary that they are private papers'. It is clear that not all papers of members can be protected; therefore one has to decide if the papers, which the respondent seeks discovery of, are private. Telephone records are records created by the telephone company for the purposes of billing the renter of a particular telephone line. As such they are documents that are under the power, procurement and in possession of the telephone company, created by the telephone company for the purpose of maintaining a profitable business. In such circumstances it is submitted that the telephone records sought by the respondent do not comprise the private papers' of members of the Oireachtas. "
This argument and contention is, of course, in conflict with the express finding of the respondent at three separate points in his ruling that these records are, in fact, `private papers'.
At pp. 10/11 of his ruling, the respondent stated:-
"I now turn to the further argument made by counsel for the respondents and counsel on behalf of Dail Eireann and Seanad Eireann to the effect that documents and records now held by Eircom Ltd., which are capable of identifying the sender or recipient of communications with the respondent with which this application is concerned and relating to the respondent's telephone and facsimile records, should be considered to be the private papers of members of Dail Eireann and that these papers are privileged by reason of the provisions of Article 15.10 of Bunreacht na hEireann.-18- Article 15.10 provides, in its relevant part, that:-
'Each House ... shall have power to ensure freedom of debate, to protect the official documents and the private papers of its members..."
It is submitted that the privilege arises in the following way. Firstly, it is submitted that the documents referred to are private within the meaning contemplated by Article 15.10. I have no difficulty in accepting this submission. "
At p. 12 of his ruling, the respondent further stated the following:-
"As already indicated, I am satisfied that the material in question constitutes 'private papers' for the purposes of Article 15.10 because they directly relate to communications made by members of the public to members of Dail Eireann in connection with their work as members of Dail Eireann. "
Finally, at p. 13 of his ruling, the respondent stated:-
"I am satisfied that the material in question, namely, the documentation which would be generated by the machinery of Eircom Ltd., would disclose the number of the caller/recipient who was in contact with the respondents on the 25th June, 2000 and subsequently, constitute private papers' for the purposes of Article 15 of the Constitution on the grounds that they directly relate to communications made by members of the public to members of Dail Eireann in connection with their work as members of Dail Eireann. "
Although this may be seen as a ruling on a matter of law rather than fact, I do not think it is open to Mr. Collins to effectively re-write the finding of the respondent or to otherwise impeach this portion of the respondent's ruling. In any event I agree with the ruling of the respondent on this point, for precisely the same reasons which were offered by the respondent. The documentation, including the specific telephone records sought, relate to communications made by members of the public to members of Dail Eireann in their role as political representatives rather than as personal or social communications. They clearly fall within the penumbra of activities characteristic of the daily work of a member of Dail Eireann. Putting it another way, the communications would almost certainly never have occurred but for the fact that the applicant was a member of Dail Eireann and in a position to act politically upon receipt of the information.
Secondly, it seems to me that the respondent's finding of fact that no utterances were made in Dail Eireann in respect of which it was now sought to make the applicant amenable to the Tribunal could only be disturbed on the establishment of clear judicial review grounds for intervention, such as the absence of any material upon which the respondent could so rule, or some demonstrable irrationality in the respondent's ruling.
In determining the question of amenability of Dail Deputies for statements made outside Dail Eireann which replicate utterances first made in Dail Eireann the Supreme Court in A.G. v. Hamilton (No. 2) [1993]3 I.R. 227 considered that the issue was to be determined by inquiring if the statements in respect of which the public representatives were sought to be made amenable were factually the same as the utterances made by them in Dail Eireann. Where and if so, the jurisdiction of the Court is ousted, and in such a situation a public representative cannot be made
amenable to any other authority - not merely in respect of the later statement - but also in respect of the source or sources of the information upon which the utterances and statements were founded. To seek to go behind the latter statement is to seek to go behind the former Dail utterance.
When deciding this issue in the instant case, the respondent had before him the various statements made in Dail Eireann by the applicant. Mr. Collins has characterised these statements, accurately in my view, as demands and requests for information as to how and when the investigation into the Donegal matters, or certain parts thereof, would be completed. The applicant himself in his statements to Dail Eireann expressly disavows the notion that he carried the material to which he had been made privy on to the floor of the House. Further, in his written submissions to the Tribunal on this issue, the applicant repeated this disavowal. His assertion is that he first conveyed the information to the Minister for Justice. It was therefore plainly open to the respondent to find and hold, as he did, that he was not seeking to make the applicant amenable for something said by him in Dail Eireann as later claimed by the applicant in his affidavit, but rather instead simply seeking to identify the sources of information given to the applicant prior to his meeting with the Minister for Justice.
I am of opinion he was entitled to form such a view and in so holding I am having regard to the following considerations:-
(a) On the facts, there was no repetition of the information received by way of allegations in Dail Eireann. The information was first given expression elsewhere by the applicant in circumstances where no privilege attached. (b) It would be an extraordinary extension of the privilege under Article15.13 if privilege could be obtained for statements which had been first made elsewhere by the simple expedient of an ex-poste facto statement on the same general-21- topic in Dail Eireann. It would mean that virtually any comment, however peripheral to a particular controversy, made in Dail Eireann would operate as a complete bar to any inquiry into information, or the production of any document, in the possession of an otherwise amenable individual who might have elsewhere first referred to a particular topic by way of a statement, or even repeated statements, made perhaps weeks, months or even years, beforehand. By way of example it would mean that, where a Dail Deputy is sued for libel, he could by the mere device of repeating the matters complained of in Dail Eireann, thereby create a complete defence. The judgment of Geoghegan, J. in A. G. v. Hamilton No. 2) [1993] 3 I.R. 227, makes it abundantly clear that Article 15.13 of the Constitution, creating as it does an absolute privilege, must be construed narrowly and not given a liberal interpretation having regard to the other competing public policy considerations which arise.
(c) If freedom of speech is the core value underpinning Articles 15.12 and 15.13 of the Constitution, a public representative is in no way inhibited from saying whatever he wishes in Dail Eireann in relation to a particular controversy since he was already "amenable" to inquiry before saying anything in Dail Eireann and is thus in no worse position by having made a statement in Dail Eireann. (d) The clear import of Article 15.13 in my opinion is to confer an absolute privilege only where the statements or utterances under inquiry are first made in Dail Eireann. Even where utterances are first made in Dail Eireann, a second inquiry may still require to be made to ascertain if subsequent statements or repetitions outside the House replicate exactly or in substance those Dail utterances. If so, the privilege remains intact and the court has no role.
It seems to me that the respondent was entitled on the material before him to find as a fact that the applicant had first given utterance to the information outside Dail Eireann so that an inquiry into that occasion was not the subject of privilege. Even if the first ventilation or expression of the material had been in Dail Eireann, the respondent would still have then been entitled to inquire if any later statement did, or would when made, merely replicate those Dail utterances. It seems to me there was ample material before the Sole Member to decide both matters as he did. I therefore conclude the applicant cannot successfully invoke Article 15.13 of the Constitution to resist the discovery order made by the respondent.
Was the power to protect the private papers under Article 15.10 of the Constitution validly exercised?
Having found that the documentation which the Tribunal sought by means of discovery order constituted "private papers" for the purposes of Article 15.10, the respondent stated as follows (at p.13 of his ruling):-
"Counsel for the Committees submits that the enabling power to protect the private papers of its members conferred on Dail Eireann and Seanad Eireann, which has been delegated to their respective Committees may be exercised by them by an assertion of that power. He submits that by instructing him to attend before the Tribunal and to make submissions to the Tribunal, the Committees have validly exercised that power and that each Committee, and accordingly the Oireachtas, has exercised the constitutional power given to it to extend privilege to the material sought to be discovered in-23- this application. ... Assuming that this material could by the proper exercise of a power conferred on the Oireachtas by Article 15.10 of the Constitution be designated privileged and rendered immune from an order for discovery, the issue remains, in my opinion, whether the power has in fact been exercised.
I am satisfied that there was a lawful delegation of this power by Dail Eireann and Seanad Eireann to their respective Committees on Procedure and Privileges by the Resolution of the 6th July, 2001. However, in my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the Committee to that express intent. No such motion was ever passed. The only relevant motion was that to which reference has already been made. This does not contain a purported exercise of the power and merely authorises counsel to seek representation and to `make submissions' to the Tribunal concerning the powers and privileges.
Accordingly, I am satisfied that while the power may be vested in the respective Committees to extend privilege to the private papers' of members, this power has not been exercised.
Accordingly, I am of the view that no case has been made out that privilege has been extended to the documents, which are the subject matter of this application. "
It seems clear from the foregoing quotation that the respondent accepted that the material sought either was or could be designated privileged and rendered altogether immune from an order for discovery, subject only to the mechanical requirement that the Committee on Procedure and Privileges must pass a motion "to
that express intent" - i.e., that these particular papers were to enjoy privilege Under Article 15.10.
It is the contention of the notice party and the applicants that the "power" has been exercised in the following circumstances:
On the 6th July, 2001 the Dail resolved that the power conferred by Article 15.10 on each of the Houses of Oireachtas to protect the official documents and private papers of its members be thereby conferred upon the Committee on Procedure and Privileges on behalf of the Dail Eireann.
On the 6th February, 2003 the Committee on Procedure and Privileges of Dail Eireann authorised the parliamentary legal adviser to instruct counsel on behalf of Dail Eireann to apply for representation at the Tribunal, and if granted representation, to make submissions to the Tribunal concerning the powers and privileges of Dail Eireann and its members. A similar authorisation was given in respect of the Seanad. On the 10th February, 2002, Mr. Murray, S.C., counsel on behalf of the Houses of the Oireachtas, made an application for representation before the Tribunal, and in so doing asserted that the appropriate way of exercising the power conferred by Article 15.10 was to appear and make representations regarding the scope of the relevant constitutional provision. He advised the Tribunal that his instructions were to seek representation from the Tribunal "in connection with any issues of parliamentary privilege that may present themselves in the course of the Tribunal's consideration of the application for discovery ". In later also arguing before the respondent that the power under Article 15.10 was a self-executing provision, Mr. Clarke, S.C. for the Committee argued that the Constitution itself obviously did not contemplate legislation as a necessary prerequisite to the way in which the Houses would exercise their entitlement to protect private papers under Article 15.10, nor did
the Article demand the passage of any formal resolution to invoke the power. On the contrary, he submitted, the power to protect private papers could not be diluted in any way by legislation, having regard to the provision contained at Article 15.10. Mr. Clarke submitted that all the Tribunal needed to do was to look to the undoubted fact that the relevant Committees of both Houses had in the instant case asserted the entitlement to protect the private papers of its members. As he put it, "they may or may not do that in every case, but they are doing it in this case, and that is a sufficient act of assertion by the properly appointed Committee on foot of the resolutions of both Houses to deal with matters of private papers".
On behalf of the applicant, Mr. O'Moore S.C. submits that when one looks at the textual structure of Article 15.10, it can be seen that it is divided between mandatory obligations and enabling powers. The opening lines of Article 15.10 require each House to make its own rules and standing orders. The rest of Article 15.10 enables each House to take certain steps as appropriate to the situation to ensure freedom of debate, protection of official documents and private papers and to protect itself and its members against any person or persons interfering with or molesting its members. There is no requirement that the latter power can only be exercised by an Act of the Oireachtas, or by motion or resolution. He gave as an example the situation which might arise where trespassers came onto the floor of one of the Houses and interfered with freedom of debate. On the assumption that members of staff of the Oireachtas took steps to forcibly remove and eject such persons and were in turn sued for assault, could it be said that the staff in question could not invoke Article 15.10 in the absence of a formal motion or resolution directing such staff members to take the action they did? The Houses of the Oireachtas, by instructing counsel to appear before the Tribunal to assert and claim privilege, had exercised theexpress constitutional power conferred by Article 15.10 to protect the private papers of its members.
Counsel on behalf of both the applicant and the Committee submitted that the terms of the resolution passed by the Committee on Procedure and Privileges was clearly intended to be an exercise of the power under Article 15.10, the terms of which had been expressly referred to in the recitals to the resolution. The terms of the resolution could lend themselves to one interpretation only, namely, that the Houses of the Oireachtas intended to assert and claim privilege in respect of the private papers of the applicant in the instant case. It was further submitted that the Court should be slow to find fault with the procedural steps taken by the Houses to express their intentions, particularly where those intentions were so manifest and clear.
Mr. Collins, on behalf of the respondent, argued that counsel for the Committee cannot `by himself' create or exercise the power granted to each House under the Constitution by the mere expedient of appearing in court. He can only appear in court with whatever valid power the relevant House may have exercised. In this case, he submitted, they exercised no power. Mr. Collins argued that it would have been appropriate for the Committee either to pass a resolution which would define certain papers as being private and thereafter resolving that papers, once so defined, were immune from disclosure. Alternatively, it could simply pass a resolution protecting the private papers of a member in a given case. If the mere appearance of counsel for the Committee was sufficient, it would have the consequence that no private papers of a member of the House of the Oireachtas could be made the subject of an order of discovery or an order of production, pursuant to civil process once a lawyer, instructed by the Committee, was present to proclaim the document a private one and one beyond the reach of an order of discovery.
In deciding this issue, I am mindful of the general statement of principle laid down by the Supreme Court in Maguire v. Ardagh [2002] 1 IR 385 with regard to the role of the courts in relation to the manner in which the Oireachtas exercises its powers under Article15.10. Having stated that the extensive immunities and privileges created by Article 15.10, 15.12 and 15.13 are an important feature of the parliamentary democracy established under the Constitution, Keane C.J. stated as follows (at p. 537):-
"Neither these provisions, however, nor any other provision of the Constitution expressly exempt from scrutiny by the courts the actions of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 13.That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution. Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House: see the decision of this Court in Slattery v. An Taoiseach [1993] 1 I.R. . . . that resolutions authorising the establishment by the Executive of a tribunal of inquiry invested with the powers specified under the Act of 1921, may be scrutinised by the courts and their legal effect conclusively resolved by the courts is clear from the decisions in Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542 and Haughey v. Moriarty [1999] 3 IR 1. However, it is equally clear, as
-28- Geoghegan J. found at first instance in the latter case that the actual process by which parliament is convened for the purpose of passing such resolution is not justiciable.
Different considerations apply however, where, as here, the Oireachtas purports to establish a committee empowered to inquire and make findings on matters which may unarguably affect the good name and reputation of citizens who are not members of either House. An examination by the courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs. "
Leaving aside for one moment the fact that the House in the instant case is acting to protect only the rights of one of its own members, the foregoing quotation may be seen as a scrupulous recognition of the separation of powers principle. It is not for the courts to "qualify or dilute" or "trespass on" the exclusive role of the Oireachtas in regulating its own affairs. To put it another way, the courts do not lightly or without very good reason interfere with or query the procedures whereby the Oireachtas asserts its wishes and intentions in relation to internal matters concerning its own members. As was stated by O'Flaherty J. in O'Malley v. An Ceann Comhairle [1997] 1 I.R. (at p. 431):-
"How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dail Eireann that it would seem to be inappropriate for the Court to intervene except in some very extreme circumstance which it is impossible to envisage at the moment. But-29- further, it involves to such a degree the operation of the internal machinery of debate in the House as to remain within the competence of Dail Eireann to deal with exclusively, having regard to Article 15.10 of the Constitution. "
I do not see how the motion passed by each of the Committees on the 6th February, 2002 and the contentions thereafter addressed to the Tribunal by counsel properly instructed on behalf of the Committee, can be seen as anything other than the clearest manifestation of the intentions and wishes of the Oireachtas. The respondent had no difficulty in accepting that the power to protect the private papers of its members had been validly delegated on foot of the resolution dated the 6th July, 2001, but nonetheless concluded that what could only be described at worst as a minor technical infirmity in the wording of the motion of the 6th February, 2002, or, alternatively, the failure to pass a further motion, was sufficient to frustrate the wishes and intentions of the House. For the reasons adverted to in the two cited cases, I believe he was incorrect in so holding.
As the issue was concerned only with the rights of a member of the Oireachtas and given further that the internal mechanisms whereby the Committees move to protect the private papers of its members are rarely, if ever, a matter for the courts, the circumstances of this case can only be seen as falling way short of the `extreme circumstance' seen by O'Flaherty J. as the only scenario in which the Court would be justified in intervening.
Having regard to my conclusion as to the adequacy of the mode of assertion of power under Article 15.10, or rather the absence of justiciable grounds for intervention by the court, I do not propose to adjudicate upon the alternative argument that Article 15.10 is in any event a 'self-executing' provision.
Nature of the Power under Article 15.10 of the Constitution.
Apart from his apparent assumption (at p. 13 of the ruling) that the valid exercise of the power contained in Article 15.10 of the Constitution would render the material immune from an order for discovery, the respondent did not further consider the nature or extent of the power created by Article 15.10. Instead, he proceeded to justify the order for discovery by reference to principles of law covering privilege at common law. In so doing he adopted the approach set out by Geoghegan J. in Goodman International v. Hamilton (No. 3) [1993] 3 I.R. 320, which in turn approved a number of the principles relating to common law privilege which were contained in the speech of Lord Edmond Davies in D. v. N.S.P.C.C. [1978] AC 171 at p. 245. However, Hamilton No. (3) was specifically concerned with privilege arising in common law, Geoghegan J. having previously considered the constitutional arguments when he decided (in Hamilton (No. 2) )that Article 15.13 of the Constitution created an absolute privilege for Dail utterances but could not be invoked to protect statements made to a tribunal.
The gravamen of the respondent's ruling appears to me therefore, to be that even if incorrect in determining that the power under Article 15.10 had not been validly exercised, he was nonetheless entitled to treat any privilege created by Article 15.10 as a form of qualified privilege to be determined and measured by reference to common law principles.
I am advised however by counsel for the applicant that no argument took place before the respondent to the effect that if a constitutional privilege was created under Article 15.10, it was to be seen, or was capable of being interpreted, as a qualified
privilege only. The only reference by the respondent as to the nature of the power under Article 15.10 appears at p.12 of his ruling as follows:-
"A question may arise as to whether the power conferred on Dail Eireann and Seanad Eireann and delegated to their respective Committees merely extends to safeguarding the private papers of members within the confines of the Houses of the Oireachtas or alternatively, is an enabling power whereby the Committees may render the private papers of members immune from discovery and production by declaring them to be so (see Goodman v. Hamilton (No. 1) [1992] 2 I. R. 542. "
It has long been recognised that certain of the parliamentary privilege provisions of Article 15 should be viewed in the light of Article 9 of the Bill of Rights, 1688, which defined parliamentary privilege in Ireland between 1801 and 1922. Effectively, that privilege extended to 'proceedings in parliament' only.
As of that time, there was clearly no privilege for members' private papers. The Parliamentary Papers Act, 1840, conferred absolute privilege on documents published by order of the House, but contained no reference to private papers. As Mr. Collins points out, if a documentary privilege existed, the passing of this legislation would have been unnecessary. More recently however, it appears to be recognised that Article 9's language is sufficiently broad to create an absolute privilege for certain documents generated or received by members of the Houses in respect of their parliamentary functions. As Lord Denning has observed:-
"A Member of Parliament is entitled to ask a question of a Minister - on the floor of the House or by letter - and to expect an answer in the House or by letter. The letter and the answer are proceedings in Parliament. "
This opinion, published at (1985) Public Law 83, was given further weight when in Rost v. Edwards [1990] 2 All E.R. 641, it was held that a letter written by a member of the opposition, sent to the plaintiff (a member of parliament), complaining of his conduct and copied to the Speaker of the House, was indeed a proceeding in parliament within the meaning of Article 9 and thus absolutely privileged for the purposes of defamation proceedings.
The Speech or Debate clause of the US Constitution declares that members of Congress shall not be `questioned in any other place' for any `speech or debate' in either House. This provision has by itself been found to justify the recognition of an absolute privilege in respect of the documents of members of Congress relating to their legislative functions. In Brown v. Williamson 62 S 3d 408 (DC Cir 1995), privileged documents belonging to the plaintiff (a tobacco company), were stolen from its lawyers' offices and furnished to two members of Congress who were also members of a Congressional Committee which was holding hearings relating to the tobacco industry. A subpoena was secured for the delivery to the plaintiff of those documents, directed towards two members of Congress requiring them to deliver all documents relating to the plaintiff in their possession. The Court of Appeals quashed the subpoena on the basis that its enforcement would violate the provisions of the Speech or Debate clause. The reasoning of the Court was that the protection afforded by the clause extended to documentary evidence, which might be as revealing as oral testimony, as to the activities of Congress, which the clause was intended to protect from scrutiny. The Court of Appeals stated:-
"We do not accept the proposition that the testimonial immunity of the Speech or Debate clause only applies when members or their aides are personally questioned. Documentary evidence can certainly be as-33- revealing as oral communications - even if only indirectly when, as here, the documents in question ... do not detail specific Congressional actions. But indications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do - and this is true whether or not the documents are sought for the purpose of enquiring into legislative conduct or to advance some other goals. . . "
Again, this development in American jurisprudence post-dated the time of drafting of the 1922 Saorstat na hEireann Constitution and may thus be seen more as a development parallel and similar to the evolution of a documentary privilege in the U.K. instead of assisting interpretation of Article 15.10 in any way.
In considering what might have been in the minds of the draftsmen in 1922, it is important to note that Article 15.10 replicates Article 20 of the 1922 Constitution in exact terms.
While the Dail debates of that time say nothing about the thinking behind Article 20, Mr. Clarke rather intriguingly suggests that several provisions of the 1922 Constitution dealing with the rights of members of the House derive from the Weimar Constitution of 1919, which was considered by the drafting committee and described as "a political tour de force framed to work in contemporary conditions" by Kennedy C.J. in his foreword to Kohn, The Constitution of the Irish Free State, 1932. Be that as it may, Article 38 of the Weimar Constitution provided that:-
"The members of the Reichstag of the Land Diets are entitled to refuse to give evidence concerning persons who have entrusted them with information in their capacity as deputies or to whom they have given information in exercising their official functions, as well as concerning-34- these facts themselves. In respect of the seizure of documents, they have the same status as persons who enjoy a legal right to refuse to give evidence. "
Mr. Clarke submits that this provision, when examined in the context of the US and U.K. models (which do not appear to have been recognised in 1922 as conferring privilege in respect of the private papers of legislators generally), indicates that the reference in Article 20 of the 1922 Constitution to the private papers of members, was a very clear and deliberate addition by the draftsmen to the privileges then recognised as subsisting in the common law constitutional models. Article 15.10 must, he submits, be therefore seen as creating a new form of absolute privilege if the words of the Article are to have any meaning.
In contrast with the terms of the Bill of Rights and the Speech or Debate clause of the US Constitution, Article 15.10, Mr. Clarke submits, is striking in its affirmation that the papers of members of either House are private. It is, he says, a unique provision of the Irish Constitution in affording the papers of any of the institutions of state such a status. By way of illustration, he referred to the fact that the Freedom of Information Act, 1997, absolutely exempted from public access "a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution)" (s. 46(1)).
Mr. Clarke further argued that the use of the term "private" to describe such papers strongly suggests that they are acknowledged as being within a particular constitutional category. That is consistent, he submitted, with the member and the Houses having a particular interest in their contents not being disclosed. This is reinforced by the fact that the Article views them as being items worthy of protection, and the juxtaposition of provisions for such papers with (a) freedom of debate, (b) the
official documents of the Houses and (c) the protection of members against their being interfered with, - all point to an acknowledgment that documents which fall within the category of private papers of members of the Houses are constitutionally immune from external review. Such a view of the effect of the provision had been adopted in Professor Gwynn Morgan's Constitutional Law of Ireland (1985) (166-167).
Accepting that an absolute privilege for private papers might entail some constraint upon the rights of other persons to obtain information, Mr. Clarke submitted that such a limitation was a necessary consequence of the overriding considerations which result in the recognition of any principle of parliamentary, executive or judicial privilege. This fact had been recently recognised by the European Court of Human Rights in A v. United Kingdom (Judgment of 17th December, 2002), when the Court held that the immunity from actions in defamation entailed by parliamentary privilege was not contrary to the provisions of the European Convention. The Court observed:-
"83. . .. The Court believes that a rule of parliamentary immunity, which is consistent with and reflects generally recognised rules within signatory states, the Council of Europe and the European Union, cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6.1 ... just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by signatory states as part of the doctrine of parliamentary immunity. "
In an earlier case, Young v. Ireland (Application 25646/94; Decision 17th January, 1996), the European Commission on Human Rights, in ruling on the admissibility of an application to the Court expressed (at p. 127) the following view of the principle underlying the immunity accorded to political representatives:-
"The underlying aim of the immunity accorded to T D. s is clearly in furtherance of the public interest to allow T D. s to engage in meaningful debate and represent their constituents on matters of public interest (in the present case public safety and the quality of medical treatment in hospitals) without having to restrict their observations or edit their opinions because of the danger of being amenable to a court or other such authority. "
Finally, Mr. Clarke submitted that the narrowness of the privilege contended for by the Houses should be understood in the context of the proportionality of the means adopted. Confidential papers which are not in fact generated or received by members in connection with the due performance of their particular functions under the Constitution were not private papers within the meaning and intendment of the Constitution. Clearly, malfeasance by a member could not fall within the sphere of activities protected. Furthermore, each House had power to punish members who abused parliamentary privilege in any way.
On behalf of the respondent, Mr. Collins pointed out that there was no definition in Article 15.10 of "private papers " and nothing appears in the article which would indicate what exactly is meant by "the power" other than its purpose, which is to ensure freedom of debate. Neither is the level of protection afforded defined. The decisions of the High Court and Supreme Court in Attorney General v
Hamilton (No. 2.) held that the privileges conferred by Article 15.12 and 13, were absolute and being such, their limits should be strictly defined. In this regard, Finlay C.J. had rejected a claim made for an extended interpretation of Article 15.13 to include within the ambit of the privilege the statements made to the Tribunal grounded on the argument that it was established by resolutions of the Houses of the Oireachtas. At its highest, Mr. Collins submitted, Article 15.10 offers `protection' to the private papers of members of the Houses, but nowhere does it state that this protection amounts to a privilege (which in itself has a particular meaning in a legal context) nor does it say that this amounts to a non-amenability to any court or any other authority. Further, Mr. Collins submitted that if Article 15.10 was to be seen as creating a documentary privilege, the enactment of the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976 (which provided for privilege and immunity of Committees, including the documents of a Committee and its members), would have been superfluous and unnecessary.
Mr. Collins submitted that one House of the Oireachtas alone could not create a new privilege - this would require legislation. Given that the word `privilege' appears elsewhere in Article 15, its non-appearance in Article 15.10 can only be seen as conferring upon the House a mere power only whereby the House could safeguard the private papers of its members within the confines of the Houses of the Oireachtas. Mr. Collins instanced situations where such a need might arise, including the possibility of an attempt to seize documents by some external force or authority, the requirement to preserve an individual member's papers in the event of a dispute between that member and another member, or some other internal inquiry conducted by the House itself.
In attempting to resolve this matter, the Court must ultimately have regard to the wording of Article 15.10 itself, having regard to its unique status as a constitutional provision. The opening lines of Article 15.10 may obviously be seen as `in house' provisions where it is stated:-
"Each House shall make its own rules and standing orders, with power to attach penalties for their infringement. "
The remainder of Article 15.10, it seems to me, must be then construed not only in the light of Article 15 as a whole, but in particular in relation to the underlying principle which counsel on all sides accept informs Article15, namely the `power to ensure freedom of debate ".
In providing thereafter that each House shall have `power . . . to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties ", the terminology does not strike me as language confined to powers to be exercised or to take effect only within the confines of the Houses of 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.
In reaching this conclusion, I am mindful that there is no condition or limiting clause contained in Article 15.10, nor any other limitation which would suggest that once the power is exercised, that it is a qualified power only, or one subject to judicial review. The power, it seems to me, can only be seen as creating a complete protection in the nature of a privilege, being one of a unique character which is created by the Constitution and which is either self-executing or which requires only the expression of the will of the House to give it full constitutional effect. Any
interpretation that the power is somehow qualified would leave the judicial branch on a potential collision course with either House whenever exercising its power under Article 15.10, precisely the opposite of what the Article is intended to achieve. It would also be an interpretation at variance with trends and developments in modern constitutional law in the U.S. and in Britain.
While the phraseology adopted by the draftsmen in referring to the "power ... to protect" may imply the doing of some act to constitute the completed exercise of the power, I am reminded by Mr. Clarke and agree with his explanation that in formulating Article 20 the draftsmen probably drew upon phraseology typically used in that period when describing the privileges of the U.K. parliament. This point is reflected by the sort of language appearing in the 9th Edition (1883) of May (Treatise on the Law, Privileges, Proceedings and Usage of Parliament) where at pp. 71-72 it is stated:-
"Each House, as a constituent part of Parliament, exercises its own privileges independently of the other. They are enjoyed, however, not by any separate right peculiar to each, but solely by virtue of the law and custom of Parliament. These are rights or powers peculiar to each ... but all privileges, properly so called, appertain equally to both Houses. These are declared and expounded by each House; and breach of privilege are adjudged and censored by each… "
Accordingly, while the wording of Article 20 of the 1922 Constitution may well have been the somewhat imprecise outcome of an attempt to frame an express immunity drawn from the Weimar Constitution but availing of the terminology of U.K. parliamentary practice, I am satisfied that the intent of the draftsmen was to expressly acknowledge the special status of the private papers of members and how
they may be absolutely protected from production outside the House. Any strict interpretation must also however lead one to conclude that the privilege is that of the House, and not the individual member.
Nor do I believe that the enactment of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976 may be taken as undermining the argument in favour of an absolute privilege created by Article 15.10. In Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227, Geoghegan J. considered the same point. He said (at pp. 253-254):-
"Hamilton P. in his ruling notes that the Oireachtas itself considered that the privileges contained in ss. 10, 12 and 13 of Article 15 related only to official reports and publications of the Oireachtas or of either House and utterances made in either House because it caused to be enacted the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act, 1976 1 think it equally likely that the Oireachtas simply had a doubt about the matter and for safety enacted that Act. It is interesting that the Act follows precisely the wording of the Constitution. In my view, s. 13 would probably have covered utterances before Committees of Houses of the Oireachtas irrespective if whether the Act of 1976 had been passed or not. "
Further, s. 2 of the Act simply replicates Articles 15.12 and 15.13 and applies them by legislation to the official reports, utterances and documents of Committees and their members. It says nothing whatsoever to the issue of any privilege affecting the private papers of members, nor does it alter my view as to the absolute nature of the privilege under Article 15.10 once it is asserted or invoked.
Having regard to these findings and conclusions, the issue of privilege at common law does not arise for separate consideration.
Nor can I accept Mr. Collins' contention that the telephone records, insofar as they may be seen as the property of Eircom, are discoverable. To direct discovery against Eircom would, in effect, destroy the absolute privilege enjoyed under Article 15.10.
I conclude therefore, that the second named notice party is entitled to successfully invoke Article 15.10 of Bunreacht na hEireann as a ground for resisting and challenging the discovery order made by the respondent and will accordingly quash the order made by the respondent on the 28th day of February, 2003.
