Howlin v Morris

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan,Mr. Justice Hardiman
• Judgment Date: 20 December 2005
• Neutral Citation: [2005] IESC 85
• Court: Supreme Court
• Docket Number: [S.C. Nos. 121 &
• Date: 20 December 2005

HOWLIN v MORRIS TRIBUNAL

BETWEEN/

BRENDAN HOWLIN

Applicant/Respondent

and

THE HONOURABLE MR. JUSTICE FREDERICK MORRIS, SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO COMPLAINTS CONCERNING SOME GARDAÍ OF THE DONEGAL DIVISION

Respondent/Appellant

and

EIRCOM PLC AND THE COMMITTEE ON PROCEDURE AND PRIVILEGES OF DÁIL ÉIREANN

Notice Parties

[2005] IESC 85

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

121/04

139/04

THE SUPREME COURT

CONSTITUTIONAL LAW

Parliamentary privilege

Discovery - Private papers - Nature of documents covered by Dáil privilege - Whether absolute privilege under Article 15.10 - Whether Article self-executing - Whether privilege attaches to members or to House - Whether protection extends beyond Houses - Whether protection extends to repetitions outside House - Whether privilege operates retrospectively - Circumstances in which court will intervene in parliamentary procedure - Committee on procedure and privileges - Private papers of members - Privilege asserted by member before tribunal - Whether power to impose privilege - Exercise of power - Resolution - Rules and standing orders - Whether specific motion required asserting privilege over documents - What constitutes "private papers" - Constitution of Ireland 1937, Article 15.10, 12 and 13 - Discovery of documents ordered (121 & 139/2004- SC - 20/12/2005) [2005] IESC 85 - [2006] 2 IR 352 - [2006] 1 ILRM 440

Howlin v Morris

PRACTICE AND PROCEDURE

Discovery

Private papers of member of Dáil Éireann - Whether privilege attaches - Nature of privilege - Parliamentary privilege - Public interest immunity - Balancing exercise - Innocence at stake exception to privilege - Whether exception applies to investigation into corruption as to criminal trial - Discovery of documents ordered (121 & 139/2004- SC - 20/12/2005) [2005] IESC 85 - [2006] 2 IR 352 - [2006] 1 ILRM 440

Howlin v Morris

Held by the Supreme Court (Murray CJ, Denham, McGuinness, Hardiman and Geoghegan JJ) in allowing the appeal and restoring the order of the Tribunal that the power to protect the applicant's papers from discovery and production pursuant to the respondent's order was that of the Committee on Procedure and Privileges and the Committee had not duly exercised that power in the present case. The powers of the Dail under Article 15.10 had not been exercised.

Reporter: R.W.

CONSTITUTION ART 15.10

CONSTITUTION ART 15.13

CONSTITUTION ART 16

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

CONSTITUTION SAORSTAT EIREANN 1922 ART 20

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385

AG v HAMILTON 1993 3 IR 227 1993 ILRM 821

MELTON ENTERPRISES LTD v CENSORSHIP OF PUBLICATIONS BOARD & ORS 2003 3 IR 623 2004 1 ILRM 260

KELLY THE IRISH CONSTITUTION 4ED 4

MORGAN CONSTITUTIONAL LAW OF IRELAND 1985

O'MALLEY v CEANN COMHAIRLE 1997 1 IR 427

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 15.12

CONSTITUTION SAORSTAT EIREANN 1922 ART 19

CONSTITUTION SAORSTAT EIREANN 1922 ART 18

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

MARKS v BEYFUS 1890 25 QBD 494

BREATHNACH v IRELAND 1993 2 IR 458 1992 ILRM 755

DIRECTOR OF CONSUMER AFFAIRS v SUGAR DISTRIBUTORS LTD 1991 1 IR 225 1991 ILRM 395

SKEFFINGTON v ROONEY 1997 1 IR 22 1997 2 ILRM 56

GOODMAN v HAMILTON 1993 3 IR 320

D v NSPCC 1978 AC 171

PARLIAMENTARY PAPERS ACT 1840

BILL OF RIGHTS 1688 ART 9

ROST v EDWARDS 1990 2 ALL ER 641

KOHN CONSTITUTION OF THE IRISH FREE STATE 1932

FREEDOM OF INFORMATION ACT 1997

YOUNG v IRELAND 1996 21 EHRR CD 91

FDA v BROWN & WILLIAMSON TOBACCO CORP (98-1152) 529 US 120 2000 153 F 3D 155

1 JUDGMENT of Mr. Justice Geoghegan delivered 20th December 2005

2 Mr. Brendan Howlin is a member of Dáil Éireann and a former member of the Government. He is the applicant in this application for judicial review which was granted in the High Court but he is the respondent on the appeal to this court. Mr. Justice Morris, Sole Member of the tribunal referred to above is named as the "the respondent" on the application for judicial review though of course he is the appellant on the appeal. To avoid confusion arising out of the double use of the word "respondent" I intend henceforth referring to the two formal parties to the appeal as "Mr. Howlin" and "the Sole Member" respectively. Eircom is not seriously concerned with this appeal as it is willing to abide by any order a court may make. The second notice party has had an active involvement in the appeal however and made oral and written submissions. I will henceforth refer to it as "the committee".

3 Mr. Howlin, in his capacity as a TD, received confidential information by telephone in relation to alleged malfeasance on the part of certain members of the Garda Síochána which would be relevant to the inquiry conducted by the Sole Member. The Sole Member, however, considers it essential that the identity of the informant be disclosed to the tribunal. Mr. Howlin through his counsel and in correspondence has informed the Sole Member that he has not been given permission by his informant to disclose his identity. Mr. Howlin refuses to give that information to the Sole Member in the absence of such permission. The tribunal made an order for discovery against him of all documentation connected with the information including Eircom telephone bills which included records of Mr. Howlin's telephone calls. Mr. Howlin had claimed privilege and resisted the making of the discovery order. In this connection I am using the word "privilege" in a loose sense as including not only legal privilege in the strict understanding but also a legitimate claim to non-disclosure in the public interest. Mr. Howlin claimed privilege both under provisions of the Constitution and alternatively at common law. The Committee was allowed to intervene in the tribunal and its counsel claimed that on foot of a resolution made by the committee combined with his appearing before the Sole Member and objecting to the documentation being discovered, the committee was exercising the power of Dáil Éireann under Article 15.10 of the Constitution and lawfully delegated to it "to protect ... the private papers of its members."

4 Counsel for Mr. Howlin in his submissions to the Sole Member claimed in the first instance an absolute constitutional privilege and in this connection relied on Article 15.10, Article 15.12 and Article 15.13 of the Constitution. Those three paragraphs in Article 15 read as follows:

5 2 "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.

6 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.

7 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."

8 Paragraph 10 is identical to Article 20 of the 1922 Constitution of Saorstát Éireann. Paragraph 12 is taken word for word from Article 19 of the 1922 Constitution. Paragraph 13 is almost identical to Article 18 of the 1922 Constitution though it slightly extends the scope of privilege in relation to utterances in the House. In these circumstances, I consider it to be both legitimate and highly relevant to use as an aid to interpretation any significant documentation relating to the original drafting of those Articles in the 1922 Constitution and the then understanding of the common law. This approach was adopted in the judgments of this court in Maguire v. Ardagh [2002] 1 I.R. 385 and I believe it to be correct.

9 Following on extensive oral submissions before the Sole Member from counsel for the tribunal, counsel for Senator Higgins (I will explain his role) counsel for Mr. Howlin and counsel for the committee, the Sole Member made a determination to the effect that privilege could not be claimed under Article 15.13 because the information given to Mr. Howlin was never uttered by him in the Dáil. He rejected the argument that he should apply a liberal interpretation to that provision having regard to the decision of this court in Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227 where the court had held that in a case where immunity attached to a statement made by a deputy in the Dáil which was subsequently repeated by him in a statement of evidence prepared for a tribunal, such repetition did not constitute a waiver of the privilege conferred on the deputy in respect of his utterance within the House.

10 This issue was argued again in the judicial review proceedings in the High Court before Kearns J. from whose order this appeal has been brought. Kearns J. took the same view as the Sole Member in relation to the argument based on Article 15.13. He made it quite clear that in his view that provision could not be invoked unless the information had first been uttered in the Dáil which it had not been. It is perhaps appropriate at this stage to state firmly that I am in complete agreement with the views on this matter expressed by the Sole Member and upheld by Kearns J. and there is nothing which I can usefully...