Kerins v McGuinness
 IESC 11
THE SUPREME COURT
O'Donnell Donal J.
O'Malley Iseult J.
Finlay Geoghegan J.
Case Nos: 71/17,73/17,78/17
Separation of powers – Unconstitutional activity – Unlawful activity – Appellant complaining of unconstitutional or unlawful activity on the part of the respondents – Whether it would be a breach of the separation of powers for the High Court to embark on a consideration of the complaints
1.1 The Irish Constitution creates three powers of government being the legislative, executive and judicial. Those powers do, however, and at least in certain respects, interact with each other. The Constitution provides for the appointment of judges by the executive and their removal by the legislature. Legislative acts of the Oireachtas can be declared to be of no legal effect by the courts. The Dáil elects the executive. That list is by no means exhaustive. Thus, the constitutional model involves three separate powers which do not occupy completely independent parts of the landscape without interaction with the other powers.
However, the real issues which arise in the context of disputes over the separation of powers concern questions relating to the boundaries between the respective powers. Legislative action taken for the purposes of interfering with live proceedings before the courts may amount to an impermissible interference by the legislature with the judicial power ( v. Attorney General and anor. ). Courts have been careful where developing the common law not to go so far as to stray into, in effect, legislating. Again, many further examples could be given.
However, the precise boundaries over which it is impermissible for one constitutional power to stray may not always be easy to determine and can be the subject of legitimate debate. This case raises such questions. To what extent, and in what way, if any, can this Court, exercising the judicial power of government conferred on it by the Constitution, consider the lawfulness of the actions of the Public Accounts Committee of Dáil Éireann, consisting of the first to thirteenth named respondents (‘the PAC’) in the manner in which it dealt with the applicant/appellant (‘Ms. Kerins’). Inextricably linked with that question is the issue of whether there could be any remedy which the courts might legitimately be able to provide for Ms. Kerins which would not breach the separation of powers as defined in the Constitution.
Ultimately, for reasons which will be set out in more detail, a Divisional High Court ((Kelly P., Noonan, Kennedy JJ.) . ) concluded that it would be a breach of the separation of powers for it to embark on a consideration of the complaints of unconstitutional or unlawful activity made by Ms. Kerins against the PAC. Ms. Kerins has appealed to this Court against that decision. There are, however, within that very broad question, a significant number of specific issues which require to be considered in order to determine the correct result of this appeal.
It is also relevant to note that, at much the same time as leave to appeal in this case was granted, the Court also granted leave to appeal in the case of in which appeal judgment was also due to be delivered today but has been deferred for a short period for reasons unconnected with the common issues in both proceedings. As appears from the judgments in both cases, there are at least some common constitutional issues which potentially arise. For those reasons, the appeals were managed in tandem. Given that it was likely that the Court would, at the same time, be deliberating on both appeals, it was felt appropriate to put in place procedures to ensure that all parties to both cases could not be prejudiced by any submissions made in or considerations arising from an appeal in which they were not directly involved.
With that in mind, arrangements were made to ensure that the written submissions filed in each appeal were made available to the parties to the other appeal so that they would be aware of the arguments being advanced and could take same into account to the extent that they might be material in their own case.
Mindful of the fact that it is far from unusual for the argument to develop at an oral hearing, a further procedure was put in place whereby the parties to this appeal (which was due to be and was heard first) were invited to take a watching brief during the subsequent hearing of the appeal in O'Brien and were afforded an opportunity, should they so wish, to make any brief additional oral submissions at the conclusion of the O'Brien hearing to the extent only that there might have been developments arising from the oral argument in O'Brien which might potentially impact on this case and in respect of which it might be felt appropriate to make comment.
It was, of course, unnecessary to afford a similar facility to the parties in O'Brien because, given that this case was heard first, the parties in O'Brien had the opportunity to consider the discussion which developed at the oral hearing in this case and to deal with any issues which they might consider relevant in the course of their own submissions at the oral hearing in O'Brien.
1.9 It should be recorded that the Court considers that a procedure along these lines may well be appropriate in circumstances where the Court is considering two or more cases which have common ground but nonetheless differ significantly, so that, while it would not be appropriate to hear both cases together, all parties would be afforded an opportunity of ensuring that the result of their case might not be materially influenced by arguments arising in another case in circumstances where the parties did not have an effective ability to deal with the arguments concerned.
Against that background it may be useful to turn first to the facts of this case in order to help to fully explain the precise issues which fall for decision.
The PAC is a committee of Dáil Éireann established by the standing orders of that House. It is also defined in s. 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (‘the 2013 Act’) as ‘the committee of Dáil Éireann established under the rules and standing orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General’.
The PAC is established by order 163 of the standing orders of Dáil Éireann, which provides:-
‘163. (1) There shall stand established, following the reassembly of the Dáil subsequent to a General Election, a Standing Committee, to be known as the Committee of Public Accounts, to examine and report to the Dáil upon—
(a) the accounts showing the appropriation of the sums granted by the Dáil to meet the public expenditure and such other accounts as they see fit (not being accounts of persons included in the Second Schedule of the Comptroller and Auditor General (Amendment) Act, 1993) which are audited by the Comptroller and Auditor General and presented to the Dáil, together with any reports by the Comptroller and Auditor General thereon:
Provided that in relation to accounts other than Appropriation Accounts, only accounts for a financial year beginning not earlier than 1 January, 1994, shall be examined by the Committee;
(b) the Comptroller and Auditor General's reports on his or her examinations of economy, efficiency, effectiveness evaluation systems, procedures and practices; and
(c) other reports carried out by the Comptroller and Auditor General under the Act.
(3) The Committee may proceed with its examination of an account or a report of the Comptroller and Auditor General at any time after that account or report is presented to Dáil Éireann.
(4) The Committee shall have the following powers:
(a) power to send for persons, papers and records as defined in Standing Order 83(2A) and Standing Order 85;
(b) power to take oral and written evidence as defined in Standing Order 83(1);
(c) power to appoint sub Committees as defined in Standing Order 83(3);
(d) power to engage consultants as defined in Standing Order 83(8); and
(e) power to travel as defined in Standing Order 83(9).
(5) Every report which the Committee proposes to make shall, on adoption by the Committee, be laid before the Dáil forthwith whereupon the Committee shall be empowered to print and publish such report together with such related documents as it thinks fit.
(7) The Committee shall refrain from—
(a) enquiring into in public session, or publishing, confidential information regarding the activities and plans of a Government Department or office, or of a body which is subject to audit, examination or...
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