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
Facts: A Divisional High Court 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 the appellant, Ms Kerins, against the Public Accounts Committee of Dáil Éireann, consisting of the first to thirteenth respondents (the PAC). Ms Kerins appealed to the Supreme Court against that decision.
Held by Clarke CJ that: (i) a committee of a House or the Houses of the Oireachtas has the same constitutional privileges and immunities as the Oireachtas itself enjoys where the committee concerned has had delegated to it by the Oireachtas the function of carrying out a specified part of the legitimate constitutional functions of the Oireachtas; (ii) a court can receive and consider evidence of what was said at a meeting of a committee, such as the PAC, for the purposes of determining what actions the committee in question was engaged in; (iii) Article 15 of the Constitution confers a wide scope of privilege and immunity on the Houses and their committees; (iv) the privileges and immunities of the Oireachtas, while extensive, do not provide an absolute barrier in all circumstances to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas; (v) in recognising that there is no absolute barrier, proceedings cannot properly be brought which either (a) would involve the Court breaching the privileges and immunities expressly set out in Article 15 or in acting in a manner which would invoke a jurisdiction in respect of matters closely connected with those privileges and immunities, or (b) which would otherwise amount to an inappropriate breach of the separation of powers; (vi) the Dáil, as an institution recognised by the Constitution, can be the appropriate defendant in proceedings concerning the conduct of a committee duly appointed by the Dáil to carry out part of its constitutional function; (vii) the primary role of providing a remedy where a citizen is affected by unlawful action, which occurs in the course of the conduct of the business of the Oireachtas, lies with the Houses themselves; (viii) what requires to be assessed, before a court can intervene, is the actions of a committee as a whole and not a consideration of individual utterances of members of the committee concerned; (ix) it would not be a breach of the separation of powers for the Court to declare the actions of the PAC unlawful in the light of the fact that the PAC was acting outside its terms of reference and that a relevant committee of the Houses of the Oireachtas, the Committee on Procedure and Privileges (CPP), had come to that view together with the fact that the Court has assessed that the PAC was acting significantly outside of its remit and together with the possibility that it might be appropriate to find, on the evidence, that the PAC had invited Ms Kerins to attend before it on one basis but had proceeded, when she attended, to deal with her on an entirely different basis; (x) the Court would require further submissions from the parties on the question of whether it was appropriate to characterise the actions of the PAC as a whole as having involved a substantial breach of its obligation to treat Ms Kerins fairly in the sense of keeping broadly within the bounds of the terms of the invitation which it issued to her; (xi) because the evidence concerning the proceedings before the PAC which was relevant to this case involved transcripts or recordings together with documents, the Court was in as good a position to form a judgment on the facts as the Divisional High Court would have been had that Court considered that it was legally entitled to consider Ms Kerins’ case on the merits and on that basis the Court would direct further submissions on whether it was appropriate to characterise the actions of the PAC as a whole as having been in significant breach of the basis of the invitation issued to Ms Kerins; (xii) in the event that the issues concerning the proper parties to this case and those factual questions just mentioned were resolved in favour of Ms Kerins, the Court would make a declaration that the PAC acted unlawfully in respect of Ms Kerins by virtue of the fact that the PAC operated significantly outside of its terms of reference, that the CPP, being a relevant committee of the Oireachtas, had so concluded and, if the facts were so found, that the PAC operated significantly outside the terms on which it invited Ms Kerins to appear before it.
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...
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