September 23, 2022

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The High Court has dismissed former Rehab chief executive Angela Kerins’s application for discovery of private documents held by Dáil Éireann which were “intimately connected” with protected speech.

In a recently published judgment, Mr Justice Alexander Owens said article 15.13 of the Constitution precluded him from entertaining the request because “the gravamen of her claim calls for judgment on speech and debate by members of Dáil Éireann”.

If his reasoning was correct, he said, it must follow that her claim for damages for misfeasance in public office was “not maintainable”.

Mr Justice Owens was ruling on a preliminary discovery application brought by Ms Kerins in her 2014 claim for damages against Dáil Éireann, the Attorney General and Ireland.

She alleges in her case, initially brought against the State and members of the committee, that she was subjected to a “witch hunt” style of questioning when she appeared publicly before a Public Accounts Committee in February 2014 amid controversy about her €240,000 salary.

The impact on her was so great, she says, that she became unwell and attempted to take her own life.

Her claims are denied and the committee argued it was entitled to ask questions concerning State funding to Rehab, a private charitable entity in receipt of extensive public funding.

In 2019, the Supreme Court ruled on the first module of her action, finding the committee acted unlawfully as a whole by straying significantly outside its terms of reference and the terms of an invitation to her.

The court’s declaration related to the committee’s actions, while it refrained from making any finding which trenched on protections in respect of the utterances of its members.

The second module of her case, concerning questions relating to any entitlement to damages, was to be decided by the High Court in the first instance.

In his ruling, Mr Justice Owens refused to direct disclosure of various committee documents held by the Dáil, which he said were “intimately connected” with protected speech and debate that occurred in a Dáil committee.

Among the records sought by Ms Kerins were all minutes of meetings of the committee, and/or individual members, whether in public or private session. She also wanted disclosure of certain legal advice obtained by the committee so her team could ascertain the committee’s “state of mind” prior to Ms Kerins appearing before it.

The records were sought in an attempt to understand, among other things, the extent of the committee’s knowledge of the limitations on its remit for the 2014 hearings.

The Dáil asserted that the materials consisted of protected official documents and private papers of its members and it was not amenable to the court in respect of those records.

Mr Justice Owens found that under article 15 speech protections extend to proceedings and actions of members of committees, as well as documents of the Houses and their committees which relate to speech and debate.

Cases of treason, felony or breach of the peace were the only exceptions provided for under article 15.13, he said.

As the Houses had autonomy in regulating speech there, the courts could not force the Houses to discipline their members for how speech and debate was conducted, said the judge.

If a court was to hold a House of the Oireachtas responsible in law for utterances of one of its members, it would be passing judgment on the propriety of such speech, he said. The effect would be that the Houses would be deemed liable in law for utterances of its members.

This would “upend” the constitutional obligation of courts to recognise the authority of the Houses and “make a nonsense” of the constitutional protections for parliamentary speech, he added.

The judge added that the court was prevented from receiving evidence from a person at a Dáil committee about occurrences in the House where the matter before the court was legal responsibility for the content of utterances of a committee member.

It also could not accept in evidence any material relating to utterances of the committee members in public sessions which were at the core of Ms Kerins’s claim for damages, he said.

Were the documents sought by Ms Kerins voluntarily disclosed to her, these could not be used in court proceedings for the purposes she seeks, he added.

The subject matter of this element of her litigation was “firmly” within both the protections given to members of the Houses and the Oireachtas’s exclusive supervisory role over parliamentary speech, he said.

The protections afforded to parliamentary speech were “meaningless”, he added, unless parliamentarians could be fully confident they were answerable only to the Houses of the Oireachtas for the manner in which they exercised that freedom.

Any issue of whether the committee or its members abused privileges in dealing with Ms Kerins was a matter for the House to attend to in exercise of its authority, the judge added.

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