Attorney General v Hamilton (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 28 July 1993
• Date: 28 July 1993
• Docket Number: [1993 Nos. 72 and 78 J.R.; S.C. No. 174 of 1993]
• Court: Supreme Court

Attorney General v. Hamilton (No. 2)

The Attorney General

Applicant

and

The Honourable Mr. Justice Hamilton, sole Member of the Tribunal of Inquiry into the Beef Processing Industry, Respondent: Goodman International, Laurence Goodman, Dick Spring, Pat Rabbitte and Tomás MacGiolla, Notice Parties (No. 2)

[1993 Nos. 72 and 78 J.R.; S.C. No. 174 of 1993]

High Court

Supreme Court

Constitution - Parliamentary privilege - Non-amenability - Members of Dáil Éireann éireann - Utterances before the Dáil - Allegations against persons involved in beef processing industry - Tribunal of Inquiry - Allegations repeated before Tribunal at its request - Refusal of deputies to reveal sources of information upon which allegations based - Whether deputies liable to answer questions in relation to utterances in Dáil - Constitutional rights and privileges of members of Dáil - Whether absolute - Waiver - Whether possible - Whether making of statements to, and participation in the process of, the Tribunal constituted waiver - Whether constitutional protection attached to statements made to Tribunal - Constitution of Ireland, 1937, Article 15, ss. 12 and 13.

Tribunal of Inquiry - Status - Established by resolution of the Houses of the Oireachtas - Whether agent of the Oireachtas - Whether part of the legislative process of the Dáil - Tribunals of Inquiry (Evidence) Act, 1921 (11 Geo. 5, c. 7) - Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (No. 3).

Article 15 of the Constitution of Ireland, 1937, provides, inter alia, as follows:—

"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 not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself."

On the 31st May, 1991, allegations were made in the course of a television programme that the first and second notice parties had been involved in serious irregularities in the beef processing industry. On various dates in May, 1991, allegations in similar terms were made in the Dáil by the third, fourth and fifth notice parties. On the 24th and 29th May, 1991, Dáil Éireann éireann and Seanad Éireann éireann respectively passed resolutions in the following terms:—

"That it is expedient that a tribunal of inquiry be established for -

• 1. Inquiring into the following definite matters of public importance:

  • (i) allegations regarding illegal activities, fraud and malpractice in and in connection with the beef processing industry made or referred to

    • (a) in Dáil Éireann éireann, and

    • (b) on a television programme transmitted by ITV on the 13th May, 1991 . . ."

On the 31st May, 1991, the Minister for Agriculture and Food made an order establishing the Tribunal and appointing the respondent as sole member thereof.

Following the establishment of the Tribunal, and at its request, the third, fourth and fifth notice parties furnished written statements to the Tribunal wherein the speeches which they had made to the Dáil were set out and clarified. Each was granted an entitlement to be represented by counsel at hearings of the Tribunal, and was given the right to cross-examine witnesses. On the 7th December, 1992, the fifth notice party was called to give evidence, and indicated to the Tribunal through his counsel that he was reluctant to disclose to the Tribunal the identity of any of the persons who had furnished him with the information upon which his speech to the Dáil had been based.

On the 10th December, 1992, the respondent made a ruling to the effect that under and by virtue of Article 15 of the Constitution, a member of the Oireachtas could not be obliged to explain utterances made by him in the House of the Oireachtas of which he was a member, and where such member had furnished statements of evidence to the Tribunal in which those utterances were repeated, could not be obliged to reveal the source of the information upon which the said utterances were based. Nor could a member of the Oireachtas furnishing such statement of evidence to the Tribunal be said to have waived or surrendered his right to claim the privileges and immunities contained in Article 15 of the Constitution.

The applicant was granted leave to apply for relief by way of judicial review of the ruling of the respondent. The issues of law for the determination of the High Court were:—

• 1. Whether a member of Dáil Éireann éireann who had made allegations before the Dáil which were under investigation by a tribunal of inquiry was entitled to refuse to answer questions in relation to the statements made to the Dáil put to him at the hearing of the inquiry by virtue of either Article 15, s. 12 or Article 15, s. 13 of the Constitution of Ireland, 1937;

• 2. whether, if the answer to the first question was in the affirmative, the rights of members of Dáil Éireann éireann so to refuse to answer questions must give way to the constitutional rights of others to the vindication of their good name under Article 40, s. 3 of the Constitution;

• 3. whether, if the answer to the first question was in the affirmative, the right so to refuse to answer questions could be waived either by the member himself or by the Dáil;

• 4. whether, if the answer to the third question was in the affirmative, there had been such a waiver in the instant case by any one or more of the third, fourth and fifth notice parties or by the Dáil itself, and

• 5. whether any of the rights enjoyed by members of the Oireachtas under Article 15 of the Constitution extended to the written statements furnished by the third, fourth and fifth notice parties to the Tribunal.

Held by Geoghegan J., in declaring that Article 15 of the Constitution of Ireland, 1937, did not protect a member or former member of a House of the Oireachtas from cross-examination in respect of utterances made outside the precincts of either House and in particular matters contained in the statements submitted to the Tribunal by such member or former member, and in refusing all other reliefs sought, 1, that a member of the Oireachtas could not be obliged to give evidence to any tribunal in relation to any utterance made by him before the Oireachtas. Nor could such member be obliged to disclose the source of the information upon which such utterance before the Oireachtas was based.

Attorney General v. Hamilton [1993] 2 I.R. 250 applied; Ex parte Wason(1868) L.R. 4 Q.B. 573; Dillon v. Balfour (1887) 20 L.R. Ir. 600; Church of Scientology of California v. Johnson Smith[1972] 1 Q.B. 522; Bradlaugh v. Gossett(1884) 12 Q.B.D. 271; Stockdale v. Hansard (1839) 9 Ad. & El. 1; Rost v. Edwards[1990] 2 Q.B. 460; U.S. v. Brewster (1972) 408 U.S. 501; U.S. v. Johnson (1966) 383 U.S. 169;Gravel v. U.S. (1972) 408 U.S. 606; Powell v. McCormack (1969) 395 U.S. 486 andR. v. Jackson (1987) 8 N.S.W.L.R. 116 considered.

Per curiam: That the principle of non-amenability contained in Article 15, s. 13 of the Constitution could only be invoked where some penalty or sanction of a legal nature was sought to be visited upon a member of the Oireachtas. This must include liabilities to penalties or sanctions for failing to disclose to a tribunal sources of information that led to statements in the Oireachtas, if the freedom of speech of members of the Oireachtas was not to be impaired.

Dictum of Hunt J. in R. v. Murphy (1986) 64 A.L.R. 498 approved.

2. That the rights conferred upon members of the Oireachtas by Article 15 of the Constitution were absolute. Accordingly, the third, fourth and fifth notice parties were entitled to refuse to disclose the sources of the information upon which the statements made by them to the Dáil were based, irrespective of the harm that might be caused by such refusal to the good names of the first and second notice parties.

Stockdale v. Hansard (1839) 9 Ad. & El. 1; Ex parte Wason(1868) L.R. 4 Q.B. 573;Dillon v. Balfour (1887) 20 L.R. Ir. 600 and Bradlaugh v. Gossett(1884) 12 Q.B.D. 271 considered.

3. That if waiver of the rights enshrined in Article 15 of the Constitution was possible, then for such waiver to be effective an explicit and unconditional renunciation of the said rights was required. Neither the submission of statements to the Tribunal, nor participation in its hearings nor the resolution by the Houses of the Oireachtas to establish the Tribunal could constitute a waiver of the protection afforded by Article 15, ss. 12 and 13.

• G. v. An Bord Uchtála [1980] I.R. 32 considered; U.S. v. Helstoski (1979) 442 U.S. 477 followed.

4. That if members of the Oireachtas had a right of non-amenability in respect of statements made to a tribunal, then such right arose under Article 15, s. 13 of the Constitution.

Dictum of McCarthy J. in Attorney General v. Hamilton[1993] 2 I.R. 250 followed.

5. That since the provisions of Article 15, s. 13 of the Constitution conferred an absolute right upon a member of the Oireachtas to refuse to answer questions in relation to utterances before a House of the Oireachtas, it was necessary for the limits to that right to be strictly defined. Article 15, s. 13 of the Constitution referred only to "any utterance in either House". Accordingly, the section could only afford protection in respect of statements made before a House of the Oireachtas or at a meeting of a committee of either House involved in the legislative process.

• U.S. v. Brewster (1972) 408 U.S. 501; U.S. v. Johnson (1966) 383 U.S. 169 and Dillon v. Balfour (1887) 20 L.R. Ir. 600 considered.

6. Accordingly, the third, fourth and fifth notice parties could not invoke the protection of Article 15, s. 13 in respect of any matter contained in statements made by them to the Tribunal.

The third, fourth and fifth notice parties appealed to the Supreme Court on the grounds that the trial judge erred in...