THE HIGH COURT Record No. 2015/4888P Between: DENIS O’BRIEN Plaintiff -andCLERK OF DÁIL ÉIREANN, SEAN BARRETT, JOE CAREY, JOHN HALLIGAN, MARTIN HEYDON, PAUL KEHOE, JOHN LYONS, DINNY MCGINLEY, SEÁN Ó FEARGHÁIL, AENGUS Ó SNODAIGH AND EMMET STAGG (MEMBERS OF THE COMMITTEE ON PROCEDURE AND PRIVILEGES OF DÁIL ÉIREANN), IRELAND AND THE ATTORNEY GENERAL Defendants OUTLINE WRITTEN SUBMISSIONS ON BEHALF OF THE PLAINTIFF INDEX A.) Introduction: The serious issues to which this case gives rise B.) The Separation of Powers (i) Irish constitutional provisions and case law on the separation of powers 1 (ii) The declarations sought by the Plaintiff do not infringe, but rather defend, the separation of powers (iii) The Separation of Powers in the United States (iv) Even in New Zealand and Australia respect for the separation of powers is reflected in parliamentary privilege not being absolute (v) Lack of relevance of certain English judicial statements C.) Sections 10 to 13 of Art. 15 of the Constitution are not engaged at all (i) Introduction (ii) The Declarations are not aimed at the Deputies but at the Committee (and Ireland) over whom the Courts indubitably have jurisdiction in respect of effects on non-members (iii) Even if the Declarations were aimed directly or indirectly at Deputies Murphy or Doherty they would not make them amenable (or ‘inchuisithe’) to a court other than the House itself for the purposes of Article 15.13 (iv) Certain judicial pronouncements of the English courts are not dissimilar to the declaratory relief sought here (v) The statements do not attract parliamentary privilege because they exceed the proper purpose of parliamentary privilege D.) The Court has jurisdiction to grant the relief sought in the circumstances of this case even if Art. 15 is engaged, and it should do so (i) Irish case law indicating that the Courts do have power to grant orders restraining even utterances in the Oireachtas in the interests of protecting litigants’ privacy (ii) The Supreme Court has repeatedly held that the Courts do have jurisdiction where Oireachtas privilege is exercised in clear disregard of the Constitution (iii) The instant case is indeed sufficiently exceptional to warrant intervention by the Courts (iv) Constitutional protections do not extend to an abuse of rights (v) Non-absolute nature of constitutional rights (including Articles 15.10 to 15.13) 2 (vi) Harmonious interpretation and Practical concordance (vii) Hierarchy of constitutional interests here as between individual members of the Houses and the judicial branch of government E.) The Committee’s Findings (i) The complaints to the Committee (ii) The serious and manifest defects in the Committee’s findings F.) Conclusion Appendix: Chronology INTRODUCTION: THE SERIOUS ISSUES TO WHICH THIS CASE GIVES RISE 1. This case involves the interference with proceedings before the High Court, purportedly under the cover of parliamentary privilege, and more particularly the negating of an order of the Court, depriving it of effect, on what can only be considered to be a willful, deliberate and intentional basis. This, the Plaintiff contends, is a breach of the constitutionally mandated separation of powers. The Plaintiff submits that - if parliamentary privilege attaches in principle to the relevant utterances of Deputies Murphy and Doherty at all - that the utterances were an abuse of parliamentary privilege. 2. It is submitted that the utterances made by Deputy Murphy on 6, 27 and 28 May and Deputy Doherty on 9 June 2015 determined in whole or in part the justiciable controversy which was before the High Court in Denis O'Brien -v- Raidio Telefís Éireann, Record no. 2015/3350P. As can be seen from the Statement of Facts, the effect of these utterances was (a) to force the Plaintiff on 12 May 2016 to abandon that portion of the injunction application that related to the material disclosed by Deputy 3 Murphy and (b) to bleed the Order of 21 May 2015 of effect as evidenced by the variations made on 2 and 10 June 2015. 3. The relevant facts – including the details of the utterances, what this Honourable Court ordered and the determinations of the Dáil Committee on Procedure and Privileges (‘the Committee’) are set out in the Statement of Facts and the (Amended) Statement of Claim and it is not proposed to recapitulate them in these Submissions. 4. The case involves a further breach of the Constitution. When the Plaintiff complained to the Committee it purported to make findings in respect of the conduct of both Deputy Murphy and Deputy Doherty. On any analysis, these findings were incorrect in their application of the relevant Standing Order and were also unsupported by any evidence. The Plaintiff contends that this was a failure by the Committee and/or the State to defend and vindicate his personal rights as both are obliged to do under Article 40.3 of the Constitution. He also submits that it was an interference, and/or the condoning of an interference, with the exclusive province of the judicial branch of government in determining justiciable matters. 5. All of this results in the following situation. The Plaintiff faces a future where any attempts he makes to protect his privacy through the judicial branch of Government can be set at nought at the sufferance of any member of the Oireachtas. 6. This case has significant implications for all citizens. The actions of Deputies Murphy and Doherty in willfully depriving court orders of effect, purportedly under the cover of parliamentary privilege, represent a new departure, and one which, it is submitted, warrants reproof. Unless this Honourable Court expresses its disapproval of all of this by granting the targeted and limited reliefs sought by the Plaintiff on his Plenary Summons (all of which are declaratory in nature) a troubling new precedent will have been set, which is virtually certain to lead to yet 4 further undermining of court orders and interference with court cases under cover of parliamentary privilege. o The courts would, for example, be powerless to prevent civil or criminal trials being influenced, or perhaps even collapsed, on account of disclosures of sensitive information by parliamentarians seemingly for whatever reason they deemed fit. o Citizens’ right to privacy would become a right enjoyed only at the sufferance of each individual TD and Senator, contrary to any previous understanding of that right. o While citizens would have the right of access to the courts, the effectiveness of that right would be called into question in certain cases. o The Oireachtas, or rather the individual members of each House, some of whom are not even elected, would become supreme over both the courts and citizens. 7. Consequentialist reasoning of this type is not melodramatic; on the contrary it is highly apposite and has assisted Supreme Court judges in ruling upon the scope of parliamentary privileges.1 8. In some of its dimensions, however, this is not a controversial case at all. Two observations can be made in that regard. 1 For example, Murray J. in Callely v Moylan [2014] 4 IR 112, with respect to the non-justiciability argument advanced in that case by the Seanad Committee which he (and a majority of the Supreme Court) rejected, stated at para 11 (emphasis added): “The consequence of such an argument succeeding is that an individual member of the Dáil or the Seanad could be the subject of a disciplinary procedure depriving him or her of the right to vote for a specified period, or other consequences, without recourse to review by independent courts to protect or vindicate constitutional rights. It may also be a consequence that the electors whom that particular member represented would be deprived of representation, perhaps even during a crucially important vote in the House of which the representative concerned was a member.” 5 9. First, the findings of the Committee on Procedure and Privileges of 15 June 2015, included the finding that “… (4) Your allegation that Deputy Murphy breached the terms of a High Court injunction was a determination solely and exclusively for the Courts.” Similarly the finding in respect of Deputy Doherty made on 1 July 2015, and communicated by letter two days later, also declined to express a view on this issue “by dint of the separation of powers”. It is submitted that it follows that Declaration (b) on the Plenary Summons must be granted because it is common case that this is a matter for the courts, and because it is submitted that, even on a cursory analysis, the Plaintiff is entitled to the relevant relief.2 10. Second, while both Defences filed appear to seek to rely on considerations of non-justiciability, it is submitted that non-justiciability does not arise in respect of the case against the Twelfth Named Defendant – Ireland. Unlike members of the Oireachtas (and only then in respect of certain conduct and utterances, and, it is submitted, subject to conditions) the State enjoys no constitutional immunity in the text of the Constitution. To the contrary, it has been established (since Byrne v Ireland [1972] IR 241) that it, as distinct from the People, is not internally sovereign. Declaration (d) on the Plenary Summons prays this Honourable Court to declare that the Defendants (including the State) have “permitted a breach of the Plaintiff’s rights pursuant to Article 40.3.1”. That provision, which is directed to “the State” enjoins it not only to defend, but also to “vindicate” personal rights, which have been held to include both the right of access to the courts (Macauley v Minister for Posts and Telegraphs [1966] IR 345) and the right to privacy (see e.g. Kennedy v Ireland [1987] IR 587). There has already been a failure to vindicate the Plaintiff’s rights warranting the grant of all declarations sought but – if the non-justiciability pleas in both Defences were successful, the result 2 The Deputies could not have been unaware of the injunction, but to the extent that any evidence of specific knowledge is considered a prerequisite to the grant of such a Declaration, the letter from William Fry to the Ceann Comhairle of 29 May 2015 quotes Deputy Murphy’s press statement of 21 May 2015 which makes very clear that she was well aware that “…there is nothing I can say about the issues of the case because of the extremely wide ranging injunction …”. 6 would have been that the State (including through its courts) would have left the Plaintiff with no remedy against the Committee, bringing into greater focus the position of the State. Furthermore, the State is responsible for ensuring that the Oireachtas does not interfere with the functions of the Courts in their purely judicial domain. THE SEPARATION OF POWERS Irish constitutional provisions and case law on the separation of powers 11. The Constitution describes separate powers of the legislative, executive and judicial branches of government. Under Article 15, the Oireachtas has legislative power and is vested with “[t]he sole and exclusive power of making laws for the State.” In contrast, Article 34 provides that “Justice shall be administered in public courts established by law by judges appointed in the manner provided by the Constitution,” and further specifies that the Courts of First Instance shall “have the power to determine all matters and questions whether of law or fact, civil or criminal.” 12. Article 6 makes clear that the constitutional provisions establishing the powers of the legislative, judicial and executive branches limit them to different spheres. It specifies that “these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution.” The Supreme Court in Buckley v. Attorney General [1950] IR 67 at 81 highlighted that: “[t]he manifest object of this Article [6] was to recognize and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognized principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise.”. 7 13. In recognition of the needs of a modern administrative state (see Madden v. Ireland (unreported, 22 May 1980), Article 37 of the Constitution does permit non-judges to exercise “functions and powers of a judicial nature, in matters other than criminal matters,” but these functions and powers must be “limited” ones and can be exercised only by non-judges if “duly authorized by law to exercise such functions and powers. . . .” Subject to the limitation in Article 37, “the administration of justice in civil matters is a function reserved to the courts,” as Professor Casey states in Constitutional Law in Ireland (3rd ed. 2000) at 240. 14. In addition to specifying the functions of the legislative and judicial branches, the Constitution protects the independent role of the judiciary by directing in Article 35 that “[a]ll judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law” and further directing that judges of the superior courts “… shall not be removed from office except for stated misbehaviour or incapacity.” It also establishes the principle of judicial review and precludes the legislature from eliminating that review. Article 34.5.5 states that “[n]o law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of the Constitution” and Art. 34.4.2 contains the same provision in respect of the Court of Appeal. 15. The protection of individual liberty and dignity is one of the essential objectives of the separation of powers under the Irish Constitution. The preamble to the Constitution states: “We the People of Éire … seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.” (emphasis added). In addition, Article 40.3.1 of the Constitution provides that “[t]he State guarantees in its laws to 8 respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” 16. As David Gwynn Morgan, Constitutional Law of Ireland (2nd ed. 1990) explains at p.35 the separation of powers reflects the belief that “dividing power among more than one organ . . . reduce[s] the danger to freedom which is inherent in all government.” 17. The Constitution prohibits the legislature from interfering with the proceedings of the courts. In Buckley v. Attorney General the Supreme Court pronounced unconstitutional the Sinn Fein Funds Act of 1947 because it effectively directed the outcome of a pending judicial proceeding in which the plaintiffs asserted claims to moneys of the Sinn Fein organisation of which they were members. 18. O’Byrne J., giving the judgment of the Supreme Court, stated at p.84: “There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Art. 6. The effect of that article and of Arts. 34 to 37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs' claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain.” 9 19. It is submitted that any distinction between actions of the legislature/legislators which set out to undermine pending judicial proceedings or to deprive existing court orders of effect, and actions of the legislature/legislators which have the natural consequence and effect of so doing is a distinction without a difference. In any event, it is submitted that the actions of Deputies Murphy and Doherty can only be considered to be knowing and deliberate here. 20. Here, of course, what occurred was even more pernicious than anything in Buckley or any other equivalent Irish case because it was not legislation (which requires garnering a majority of Deputies and Senators) but two individual Deputies, whose statements had the effect of determining the outcome of litigation before the Court. 3 21. Although Buckley is often thought to be the first case to hold that the separation of powers enjoins other branches from interfering with the proper role of the judiciary, there are also echoes of this earlier in the High Court in State (Burke) v Lennon [1940] IR 136 (an appeal from which was dismissed by the Supreme Court on the grounds that no appeal lay). There Gavan Duffy J., striking down as unconstitutional section 55 of the Offences Against the State Act, 1939, stated at p.152: “… the authority conferred on a Minister by s. 55 is an authority, not merely to act judicially, but to administer justice and an authority to administer criminal Justice and condemn an alleged offender without charge or hearing and without the aid of a jury. But, to apply Professor Willoughby's principle, the administration of justice is a peculiarly and distinctly judicial function, which, from its essential nature, does not fall within the executive power and is not properly incidental to the performance of the appropriate functions of the executive; consequently a law endowing a Minister of State, any 3 There are indications that courts in other jurisdictions have been critical of violations of rights resulting from the actions of individual legislators. In Sweezy v. State of N.H. by Wyman, 354 U.S. 234 (1957) the US Supreme Court expressed (at 252) criticism of interrogation by “a one-man legislative committee, not by the legislature itself”. 10 Minister, with these powers is an invasion of the judicial domain and as such is repugnant to the Constitution.” 22. Thus, the judiciary’s guarding of matters properly reserved to it under Bunreacht na hÉireann is a principle virtually as old as the Constitution itself. 23. In Pine Valley Developments v Minister for the Environment [1987] IR 23 Lardner J. in the Supreme Court stated at 46: “In instituting and defending the proceedings to which I have referred, the parties thereto were exercising a constitutional right and they were entitled to have the issues determined by the judicial organ of the State. In Buckley and Others (Sinn Féin) v. Attorney General and Another what was struck down by the Supreme Court was a legislative provision by the Oireachtas for the determination of the pending suit in that action which directed and required the Court to dismiss the plaintiff's claim without a hearing. The particular controversy between the parties in The State (Pine Valley) v. Dublin County Council [1984] I.R. 407 was tried and decided by this Court in favour of the defendant in February, 1982. No doubt it was apprehended that s. 6, sub-s. 1 of the Local Government (Planning and Development) Act, 1982, might operate to reverse retrospectively this Court's decision and that this might constitute an unwarrantable interference by the legislature in a decision of the courts. It seems probable that it was in these circumstances that s. 6, sub-s. 2 was enacted with a view to avoiding such interference.” 24. The careful and appropriate approach necessarily taken by the Oireachtas as referred to in the passage above has been taken by it in very many instances. In fact, so assiduous has the Oireachtas generally been not to trespass upon the role of the courts in deciding on litigation that there are few if any cases upon which the courts again had occasion to condemn the Oireachtas for falling foul of the principle in Buckley. Indeed, that is 11 what makes the instant set of facts all the more exceptional and warranting reproof. 25. Commenting on the judgment of O’Byrne J. in Buckley, the joint judgment of O’Donnell and Clarke JJ. in Callely v Moylan [2014] 4 IR 112 stated at para 209: “The important obligation of the legislature to refrain from exercising its power to make law which would have the effect of determining the outcome of litigation then before the court was to be deduced from the principle of the separation of powers.” (emphasis added) 26. Even clear language in other constitutional provisions cannot justify an approach which will involve judicial determinations being rendered nugatory by other branches of government. In Brennan v Minister for Justice [1995] 1 IR 612 Geoghegan J held that “a parallel or alternative system of justice” was being created by a wide use by the Minister for Justice of the power of remission, which he held was not intended to supplant the system of justice provided for by Article 34 of the Constitution. Despite the clear power conferred on the executive branch under Article 13.6 (which is not subject to any evident textual limits) Geoghegan J. held that it “must have been intended to be exercised sparingly” and that: “… it would be only in the rarest of circumstances … that the Minister can modify a District Judge’s order imposing a fine on the basis that he or she thought that the decision was wrong.” The decision was subsequently endorsed by a majority of the Supreme Court in Dalton v Governor of the Training Unit, Glengariff Parade [1999] 1 ILRM 439 (per Denham J., McGuinness J agreeing). It is submitted that it is relevant here for two reasons. First the Deputies utterances did have the effect of “modify[ing] a … judge’s order”. Second, the inappropriate approach of the Committee led to, and gives 12 rise to further risk of, the creation of a “parallel or alternative system of justice”, whereby Deputies and Senators can arrogate to themselves the decision of whether a court injunction should have effect or not. In this regard it is noted that not only did the Committee not censure the Deputies, it in fact decided that the interventions were in good faith and responsible. This inevitably has a signaling effect to other members who may be minded to do the same thing in respect of other court orders. The declarations sought by the Plaintiff do not infringe, but rather defend, the separation of powers 27. Both the Twelfth and Thirteenth Defendants’ Defence (at paragraph 11) and that of the other Defendants (at paragraph 18) seek to rely on the separation of powers. It is respectfully submitted that such reliance is misplaced and apt to cause confusion. 28. The separation of powers should not and cannot itself be used to shield a subversion of the separation of powers. 29. Here, trespassing across the separation of powers began with Deputy Murphy’s speech in the Dáil. The limited declarations sought by the Plaintiff here are not some broad attack on the separation of powers; they are an attempt to defend the separation of powers in a highly discrete context which the Plaintiff would prefer had never arisen. 30. In any event, it is quite clear that the Courts do have, and must have, power to ‘cross’ the separation of powers if that is necessary to do their job. Murray J., in the majority in Callely v Moylan on the issue of justiciability, stated at para 19: “In short, it seems to me that to adopt the view that the courts have no such jurisdiction would be the antithesis of respect for the separation of powers denying, as it would, the role accorded to the judiciary to 13 safeguard personal rights and to ensure that powers are exercised lawfully and constitutionally.” (emphasis added) 31. In Re Article 26 and the Health (No. 2) (Amendment) Bill [2005] 1 IR 105 the Supreme Court held at para 41: “Counsel assigned by the court are correct in submitting that the doctrine of the separation of powers, involving as it does respect for the powers of the various organs of State and specifically the power of the Oireachtas to make decisions on the allocation of resources, cannot in itself be a justification for the failure of the State to protect or vindicate a constitutional right.” (emphasis added) 32. Furthermore, as O’Dalaigh C.J. eloquently put it in a different context in State (Quinn) v Ryan [1965] IR 70 at 122: “It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires.” (emphasis added) The Separation of Powers in the United States 33. To a greater or lesser extent, the protections of parliamentary privilege in various other common law jurisdictions derive from Article 9 of the English Bill of Rights 1689. However, what Ireland shares with the United States is a written constitution and a tradition of judicial review of long vintage. 14 34. U.S. constitutional principles recognise the importance of the separation of powers, its central role in protecting individual liberty and dignity, and the need to prevent the legislature from encroaching on or usurping the judiciary’s power. 35. James Madison, who played a central role in the framing of the U.S. Constitution, told the first Congress, “if there is a principle in our Constitution ... more sacred than another,” “it is that which separates the Legislative, Executive, and Judicial powers” (1 Annals of Congress 581 (1789)). Similarly, an eighteenth century explanation of the US Constitution warned that “‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78, at 466 (Hamilton) (quoting 1 Baron de Montesquieu, The Spirit of Laws 181 (Nugent translation, 10th ed. 1773)). 36. Like Buckley, the US Constitution prevents Congress from directing courts to apply existing law to resolve pending cases in a particular way. 37. An example is US v Klein 80 US 128 (1872). In the earlier decision of United States v. Padelford 76 U.S. (9 Wall.) 531 (1870) the Supreme Court had ruled that property owners could meet a particular statute’s requirements enabling persons to sue in respect of property if the person were among a group of people who had been pardoned by President Lincoln after taking a loyalty oath. Dissatisfied with the decision in Padelford, Congress enacted another statute which precluded use of a pardon to prove loyalty and instead dictated that receipt of a pardon constituted conclusive proof of disloyalty. In the course of invalidating the second statute, the Supreme Court in Klein explained that the new law essentially provided that “the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely opposite” (at 147). In so doing, the Court held at the same page that “Congress has inadvertently passed the limit which separates the legislative from the judicial power.” It stated at 15 146 that Congress may not “prescribe rules of decision to the Judicial Department . . . in cases pending before it.” 38. In United States. v. Brown 381 U.S. 437 (1965) the US Supreme Court held (at 445) that the separation of powers invalidated legislation that would, in effect, have deemed certain individuals guilty of subversive activities. There, the Court (at 442) interpreted the Bill of Attainder Clause of the U.S. Constitution (art. I, § 9, cl 3), which prohibits legislative punishment, “not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against the legislative exercise of the judicial function, or more simply – trial by legislature.” (emphasis added). 39. In an observation not without a degree of resonance in respect of the usurpation by the Deputies of the judicial function in the instant case, and the future interferences which may well follow if their conduct is permitted to stand without reproof, the US Supreme Court in Brown stated (at 445) that the legislature is “not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness, of, and levying appropriate punishment upon, specific persons.” 40. In Plaut v. Spendthrift Farms (1995) the U.S. Supreme Court again invalidated a statute that usurped the judicial role – in this case, a statute that purported to reopen final judgments in securities cases. The Court opined (at 218-19) that the Constitution grants the judiciary “the power, not merely to rule on cases, but to decide them.” It stated (at 239) that the legislature could not nullify prior, authoritative judicial decisions. 41. Although the US Supreme Court held the particular statute which was impugned in Bank Markazi v. Peterson 136 S. Ct. 1310 (2016) to be constitutional, it emphasized that this did not mean that the legislature could “usurp a court’s power to interpret and apply the law to the 16 [circumstances] before it . . .” (at 1323, internal quotation marks omitted). 42. Here, the Plaintiff contends that he received neither due process of adjudication nor due process of lawmaking. This is the worst of all worlds, as appears to be implicit in I.N.S. v. Chadha 462 U.S. 919 (1983) where the separate concurrence of Powell J. noted at 966 the lack of procedural safeguards when legislatures directly deprive citizens of rights. In New Zealand and Australia respect for the separation of powers is reflected in parliamentary privilege not being absolute 43. In May 2009, the Privileges Committee of the New Zealand Parliament presented a report entitled “Question of privilege relating to the exercise of the privilege of free speech by members in the context of court orders” to the House of Representatives. It stated inter alia: General principles concerning the relationship between the House of Representatives and the judiciary are well established. The principle of comity was referred to by a number of submitters. This principle is that of mutual respect and forbearance between the legislative and judicial branches, and it has been recognised by the courts as one of the foundations for the privileges (including the privilege of free speech) enjoyed by the House. The principle has recently been described succinctly by the New Zealand Court of Appeal as follows: ‘Article 9 has been described as a manifestation of a wider principle, “that the Courts and Parliament are both astute to recognise their constitutional roles”: Prebble v Television New Zealand Ltd [1994] 3 NZLR at 7 (PC).’ 17 The relationship between the courts and Parliament is a matter of the highest constitutional significance. It should be, and generally is, marked by mutual respect and restraint. The underlying assumption is that what is under discussion or determination by either the judiciary or the legislature should not be discussed or determined by the other. The judiciary and the legislature should respect their respective roles.” (emphasis added) 44. This principle of mutual respect and restraint, known as the comity principle, was considered by the High Court of New Zealand (Simon France J) in Te Ohu Kai Moana Trustee Limited v Her Majesty's Attorney-General [2016] NZHC 1798, a decision delivered on 4 August 2016: [13] The Parliamentary Privileges Act 2014 was enacted to clarify and confirm the extent of Parliamentary Privilege. Section 4, as relevant to this proceeding, provides: “4 (1) Interpretation of this Act This Act must be interpreted in a way that– (a) promotes its main and subsidiary purposes; and (b) promotes the principle of comity that requires the separate and independent legislative and judicial branches of government each to recognise, with the mutual respect and restraint that is essential to their important constitutional relationship, the other’s proper sphere of influence and privileges; and …” This is an express recognition of the comity principle on which the Attorney-General relies for his application. 18 [14] On several occasions the Court of Appeal has confirmed that the comity principle means a court cannot seek to prohibit the introduction of legislation – Te Runanga O Wharekauri Rekohu Inc v Attorney-General and Westco Lagan v Attorney-General examples. are two The Attorney-General also relies on New Zealand Māori Council v Attorney-General. [15] The cases do not require analysis as the principles for which they generally stand are not in dispute. The issue as I see it is whether declarations that do not challenge the ability of the legislature to consider and pass legislation, but which invite direct or implied comment on the content of the legislation and its impact on certain people, at a time when the legislation is still before the House, also breach the principle.” (emphasis added) 45. In Australia, in Criminal Justice Commission v Nationwide News Pty Ltd & Anor [1994] QCA 352, the Court of Appeal of the Supreme Court of Queensland considered whether the court could grant an injunction to restrain the publication of confidential material on the grounds that to do so would infringe parliamentary privilege. It was argued that as the material was contained in a document, which was undoubtedly part of proceedings in parliament that the court could not, by virtue of Article 9 of the Bill of Rights, entertain the application. The Court rejected that argument. In the course of the judgment, Davies JA stated: “A court will not, or will only rarely, interfere with the deliberative process of Parliament. It is not completely clear whether this is because the court cannot enter upon an enquiry into that process before it is complete or because it will generally decline to do so out of respect for the different roles which each branch of government plays… 19 If it were necessary to decide this question, and I do not think it is, I would prefer to say that a court will endeavour wherever possible not to intervene in the legislative process, its reluctance stemming from the mutual respect which each branch of government should accord the performance of its functions by the other. This view accords with what appears to be a reciprocal reluctance of parliament to intervene in the judicial process…” 46. Thus, it is apparent that even parliament-centric legal systems like those of New Zealand and Australia strive to reduce conflict between the courts and the legislature. One must also distinguish between situations when judges are asked to play the offensive role of intruding into parliamentary proceedings, versus a defensive role. Here, the Plaintiff’s claim raises questions of whether the judiciary may play a defensive role of preventing members of parliament from donning the mere cloak of parliamentary privilege to enable them to undercut pending judicial proceedings in which citizens or subjects are attempting to protect their private legal rights or interests. 47. It is submitted that in the instant case parliamentarians have been the ‘first mover’ in shattering “comity” and striking at “mutual respect” between the great organs of State and that, in such circumstances, the judiciary is not merely warranted, but obliged, to respond. Lack of relevance of certain English judicial statements 48. On one view certain statements of the English courts could be viewed as indicating that utterances in parliament are exempt from judicial scrutiny even when they undermine a court injunction. 49. Thus, in Goodwin v News Group Newspapers [2011] EWHC 1437 Tugendhat J stated (at para 22): 20 “On May 19, 2011 in the morning there were numerous media reports that in the House of Lords Lord Stoneham, speaking on behalf of Lord Oakeshott, had identified Sir Fred Goodwin as the applicant for the injunction in question. Lord Stoneham was frustrating the purpose of the court order and thus impeding the administration of justice, but he was doing so under the protection of Parliamentary privilege. If he had identified Sir Fred Goodwin in words spoken outside Parliament he would have been interfering with the administration of justice, or committing a contempt of court, as it is called.” 50. It will be submitted further below that this passage, and other English passages, are actually supportive of the Plaintiff’s entitlement to the (merely) declaratory relief which he seeks. 51. To the extent that such English case law is considered unfavourable to the jurisdiction of the courts vis-à-vis parliamentary utterances undermining a court order, it is submitted that it has no bearing on the instant litigation for any one of four reasons. 52. First, Tugendhat J.’s statements are obiter. 53. Second, the statements are to be understood as meaning that the courts may not punish members of parliament for contempt, which is not the same as declaratory relief. 54. Third, the defendants to the within litigation are the members of the Oireachtas Committee who have made no utterances in respect of which Art. 15.13 can be engaged. 55. Fourth, the statements are made in the context of a different legal system. Walter Bagehot has referred to the “fusion” rather than separation of powers under the English Constitution (Bagehot, The English Constitution, 1867, p 67–68). The UK system is in fact radically different in the aspect which is the most germane to this case – namely the 21 sovereignty of parliament. In that regard, the following four judgments may be briefly noted: o In Re Irish Employers Mutual Insurance Association Limited [1955] IR 176 Kingsmill Moore at pp. 223 and 224 noted that the Free State Constitution “arose out of an armed revolt against British rule” and, in respect of those enacting it: “There is not the slightest reason to suppose that ‘with a view to the perpetuation of the connection with the Mother Country’ they desired ‘to follow the model of the British Constitution so far as circumstances permit.’” o Ó Dálaigh C.J. in Melling v. Ó Mathghamhna [1962] IR 1 stated at 46: “The framers of the Constitution of Saorstát Éireann had no particular reason to look with reverence or respect to the British statute roll in Ireland as affording them an example of standards which they would wish to enshrine in their new Constitution.” o Having reviewed both of these cases, Denham J. in Maguire v. Ardagh [2002] 1 IR 385 summed up her view of the position at p. 561:“The Irish Constitution, both in 1922 and 1937, had the benefit of modern constitutional concepts and people with a vision of a new Irish State. There is no reason to assume that the privileges and powers of the House of Commons would naturally be an incident of the representative assembly in Ireland. Indeed there is evidence to the contrary.” (emphasis added) o In Callely, McKechnie J. stated at para 395: “The supremacy of the British Parliament which existed for centuries was a pivotal pillar of the constitutional history of Great Britain, and Great Britain and Ireland when this country was under Westminster rule. Upon obtaining 22 sovereignty, this Nation's historical classification ceased; as did, in its essential terms, the parliamentary model of that age. Ever since, all powers of government derive from and vest in the People.” 56. It is accepted that in A v United Kingdom (2003) the European Court of Human Rights held that parliamentary privilege as such did not give rise to a violation of the ECHR. However, that was a case where no issue about negating a court order arose. Moreover, the majority judgments referred expressly (at para 86 and 87) to the possibility of the applicant non-member obtaining redress through intra-parliamentary means as part of its finding that the margin of appreciation had not been exceeded. However, this is exactly what the Plaintiff in his Statement of Claim asserts to have been defective here, thereby distinguishing the judgment. 57. Moreover, it should not be assumed that the position in either the UK or the ECHR is set in stone and will not evolve in the near future. Indeed recent academic commentary has raised this very prospect. 58. Commenting on the A v UK judgment, Gay and Tomlinson, “Privilege and Freedom of Speech“ in Horne et al eds., Parliament and the Law (2013) comment at 46: “It is possible that in a future, more serious case, the ‘absolute’ immunity in Article 9 will be found to be disproportionate and in violation of the Convention. Although the Speaker may reprimand an offending member for comments in the chamber, this does not assist those who consider themselves defamed.” 59. Gordon and Jack, Parliamentary Privilege: Evolution or Codification (Constitution Society, 2013) comment at para 111: “… if Parliamentary privilege is not modified to accommodate third party interests this may lead to the courts (the common law arbiters of 23 the extent of privilege) taking matters into their own hands and declaring, in individual (and possibly extreme) cases, that Parliamentary privilege does not prevent the questioning of proceedings in Parliament.” 60. At para 138 Gordon and Jack comment: “… some MPs have been bold enough to make statements in the House disclosing the names of parties who have been granted court injunctions with the aim of circumventing the intended effect of the injunction. … Such actions erode the comity that should exist between the courts and Parliament and threaten also to subvert the legitimacy of this aspect of Parliamentary privilege. There have been a number of high-profile investigations into this aspect of Parliamentary privilege but with no clear result.” (emphasis added) 61. They continue at paras 140 and 141: “140. … The proposition that the maker of a statement in Parliament should not, ordinarily, incur civil liability because of immunity conferred by Parliamentary privilege may need to be reconsidered having regard to the requirements of Article 8 of the European Convention (right to respect for private life). Assuming that a court injunction (whether ‘super’ or anonymised) has – striking a fair balance – operated to protect a person’s privacy may afford to the protected persons Convention privacy rights which may be sought to be enforced before the European Court of Human Rights in Strasbourg. Whether or not Parliamentary privilege would be viewed as a proportionate (and hence lawful) response to infringe such rights cannot be guaranteed. 141. Moreover, whether internal regulation could remedy breaches of court injunctions by reference in Parliamentary debate is politically sensitive. Senior members of the judiciary have expressed concern 24 about the flouting of court orders (particularly of ‘anonymised’ injunctions). The problem here is that a single member of either House can interfere directly with the judgment of a court, arrived at after careful and detailed consideration of evidence.” (emphasis added) SECTIONS 10 TO 13 OF ARTICLE 15 OF THE CONSTITUTION ARE NOT ENGAGED AT ALL Introduction 62. The Defence of the Twelfth and Thirteenth Defendants pleads nonjusticiability by reason of Article 15.12 and Article 15.13, and the other Defendants plead non-justiciability by reason of “Articles 15.10 to 15.13.” 63. Article 15.10 provides: “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.” 64. Article 15.12 provides: “All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.” 65. Article 15.13 provides: 25 “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.” 66. It is submitted that all of the arguments which follow (apart from that based on the word ‘amenable’, or ‘inchusithe’ in the Irish text, which applies discretely to Art. 15.13) apply equally to Art. 15.12 and Art. 15.10. This submission is made without prejudice to the contention that, by its terms, Article 15.13 is the relevant provision which falls to be considered in this case. In Attorney General v Hamilton (No. 2) [1993] 3 IR 227 O’Flaherty J., referring to the judgment of Geoghegan J. in the court below, stated (at 283): “This immunity he founded on Article 15, s. 13 rather than Article 15, s. 12 holding (as did McCarthy J. in Attorney General v. Hamilton [1993] 2 I.R. 250) that the s. 12 privilege attached to documents whereas s. 13 is concerned with the privilege attaching to persons, that is to say, the members of each House of the Oireachtas.” (emphasis added) The Declarations are not aimed at the Deputies but at the Committee (and Ireland) over whom the Courts indubitably have jurisdiction in respect of effects on nonmembers 67. In Maguire v. Ardagh [2002] Geoghegan J. stated at 737:“While it is true that out of respect for the separation of powers the courts will not interfere with the internal operations of the orders and rules of the Houses in respect of their own members, the nonjusticiability principle stops there. If there is some essential procedural step which a House of the Oireachtas or a committee 26 thereof has to take before rights of an outsider, that is to say a nonmember of the House can be affected, then at the suit of that outsider the courts can give relief if that essential step is not taken” (emphasis added). 68. This is, in some ways, in a nutshell, the Plaintiff’s case in respect of the non-justiciability question. The Committee has made a finding, with no evidence before it and without interacting with the Deputies, which finding flies in the face of what occurred. It is a finding which indubitably affects “the rights of an outsider”, not least because the Plaintiff made a complaint, but perhaps more importantly, because the utterances were about him and concerned the very material in respect of which he had been awarded an injunction. 69. That the above passage of Geoghegan J. represents the agreed understanding as to the law of the Supreme Court as recently as 2014 is apparent from the fact that it was recently quoted with approval (at p.190) in the joint judgment of O’Donnell and Clarke JJ. in Callely, which was the minority judgment on the question of justiciability (i.e. taking the view that the relevant activities of the Seanad Committee were nonjusticiable). 70. The O’Donnell and Clarke JJ. judgment also further clarifies that the threshold is no greater than that the rights of a non-member be ‘affected’ (c.f. p.183 – “There have been consistent and repeated statements that the courts will not intervene in the internal matters of the Oireachtas, at least when they do not affect the rights of non-members.”) 71. There are other statements in Maguire to similar effect. McGuinness J. at p. 629 said:“Could such non-justiciability extend to a situation where, for instance, the members of a committee were in blatant breach of the 27 standing orders of the House itself and that breach affected the rights of non-members? It seems to me that it could not. The members of the sub-committee, including Deputy Shatter, argued that such an affected person must seek his or her remedy not through the courts but "through the political process". I am not entirely clear what this latter phrase would mean in practice. In my view it is neither a practical nor an effective remedy.” (emphasis added) 72. For reasons set out already, it is submitted that the breaches of Standing Orders here were indeed “blatant” ones. 73. Hardiman J. stated at 702: “In relation to two other topics, that of justiciability and that relating to the sub-committee's terms of reference, I respectfully agree with the observations of McGuinness J. and have nothing to add.” 74. Keane C.J. stated at p.537: “… the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article 15.10 to make its own rules and standing orders and to ensure freedom of debate, where the actions sought to be impugned do not affect the rights of citizens who are not members of the House” (emphasis added). 75. The willingness of the Courts to insist on fair and proper adjudications by Oireachtas Committees is in fact more than half as old as the Constitution itself going back to Re Haughey [1971] IR 217. 76. That the judiciary has powers of review over the internal processes of the Oireachtas is also apparent from Curtin v Dáil Éireann [2006] 2 IR 556. For example, Murray C.J., giving the judgment of the Court, stated at p.632: 28 “It is certainly within the power of the Houses of the Oireachtas, particularly having regard to Article 15.10 of the Constitution, to regulate their own procedures. The courts should intervene only where it is clear that a particular course of action would be in clear breach of the principles already frequently mentioned of basic fairness and constitutional justice.” 77. The Callely case was the very quintessence of a purely internal situation to a House of the Oireachtas. It involved members of a committee deciding on expenses of that member, a situation which involved or affected the rights of no other person. The fact that the expenses claimed would have involved a call on the Central Fund and, indirectly, on taxpayers, in no way alters that. 78. However, even in the purely internal situation which was Callely a majority of the Supreme Court held that the matter was justiciable. 79. Canada (House of Commons) v. Vaid [2005] 1 S.C.R. 667 was concerned with the question of whether the dismissal by the Speaker of a chauffeur was covered by parliamentary privilege. It was held that it was not, the chauffeur being a non-member. It was observed at para. 20.12:“Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature.” 80. Binnie J. quoted at para. 39 a passage from Stockdale v. Hansard 112 E.R. 1112 at p. 1192:“All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise 29 of those privileges. But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded, not with tenderness, but with jealousy.” 81. In other jurisdictions and in different contexts, rulings of parliamentary committees with respect to the conduct of members have been held not to prevent litigation in relation to similar subject matter. In Whaley v Lord Watson [2000] SC 340 the applicant went to court to seek to prevent a member of the Scottish Parliament from introducing a bill on the grounds that the proposing member had accepted assistance from an organisation in promoting the Bill. The Parliamentary Standards Committee had determined that member had not breached parliamentary rules relating to interests. Although the factual and legal context was different, it may be noted that it was stated (at 482):“Counsel for the first respondent advanced another argument on the basis of s 40 which the Lord Ordinary accepted. He held that, because, in considering the complaint by Mr Wallace, the standards committee had formed the view that the first respondent had not breached art 6, the court could not properly consider the matter and reach a different view — since, by doing so, the court would in effect be suspending the committee's decision. I cannot agree. 82. Not only can the courts grant relief in respect of Oireachtas Committees they can even grant declaratory relief aimed at the internal workings of a House itself, including, in an appropriate case, to the effect that a particular motion should be put and passed by a majority of members. In Doherty v Government of Ireland [2010] IEHC 369 Kearns P. stated at para 75: The court might in another case following on from this one feel constrained to take a more serious view if any government, and not just necessarily the present one, was seen by the courts to be acting in clear disregard of an applicant's constitutional rights in continually 30 refusing over an unreasonable period of time to move the writ for a by-election. That the court can intervene in a more draconian way in extreme cases to protect constitutional obligations was made clear by O'Flaherty J. in O'Malley v. An Ceann Comhairle [1997] 1 I.R. 427 and by Murray C.J. in T.D. v. Minister for Education [2001] 4 I.R. 259 at p. 337. This is not yet such a case but in my opinion it is not far short of it. 83. Although the Defendant here was the Government, in substance the threatened further orders alluded to by Kearns P. would probably have had to be aimed at Dáil Éireann itself and/or a majority of its members (in order to pass a writ for a bye-election) because constitutionally the Government at the time (as well as at present) consists merely of 15 members of the Dáil. Even if the Declarations were aimed directly or indirectly at Deputies Murphy or Doherty they would not make them amenable (or ‘inchuisithe’) to a court other than the House itself for the purposes of Article 15.13 84. It is submitted that the seeking of declaratory relief, including the declaratory relief sought here, does not make any Member amenable to the courts in respect of an utterance they have made (such that the controversy can be heard by this Honourable Court) and further that the grant of such relief is within the jurisdiction of this Honourable Court and can be granted because it would not make any Member amenable to the Courts in respect of any utterance they have made. 85. In Attorney General v Hamilton (No. 2) [1993] 3 IR 227 Geoghegan J. in the High Court held (at 247) that the parliamentary privilege “must encompass liability to penalties or sanctions for failing to disclose to a tribunal sources of information that led to statements in Parliament.” An appeal from Geoghegan J’s ruling was dismissed by a majority of the 31 Supreme Court. He referred to the English case of Ex Parte Watson (1869) and stated at p.238: “… I have deliberately selected this case as my starting point because of the use of the word "amenable" in two of the judgments. I think that the word in that case at least is being used in one of the senses argued for before me, that is to say, liable to enforcement procedures or sanctions or penalties.” (emphasis added) 86. Geoghegan J. referred to the Irish text of Article 15.13 (at p.247-48) and stated: “I accept of course that in that event the Irish text must prevail under the provisions of Article 25, s. 5, sub-s. 4 of the Constitution. However, I do not think that there is such a conflict. I accept that the word ‘inchúisithe’ connotes something like ‘chargeable’. … I do not think however that the expression is necessarily confined to a criminal context. It seems clear that when used in the Constitution it is not so confined having regard to the wide scope of the expression ‘any court or any authority other than the House itself’. But the word probably does connote the rendering of a person to some liability or sanction or potential liability or sanction.” (emphasis added) 87. Thus, it is the Irish word ‘inchúisithe’ which informs the meaning of the English word ‘amenable’ and both words connote and refer to the imposition of penalties or sanctions – relief which the Plaintiff does not seek against the Committee (much less against the Members making the utterances) in the instant litigation. 88. In a different case - Attorney General v Hamilton [1993] 2 IR 250 O’Flaherty J. stated, in relation to the word ‘amenable’ at 301: “Not only can he not be disciplined; he cannot be made to explain his utterances.” The Statement of Claim here seeks neither. In the same case McCarthy J. said at 283 that Art. 15.13 prevented members “from being answerable 32 for what would otherwise be a contempt of court”. Here, the Plaintiff does not seek that anyone be held in contempt. 89. The Divisional High Court in Ahern v Mahon [2008] 4 IR 704 held that the former Taoiseach, Mr. Ahern, could not be questioned by the Mahon Tribunal on utterances he had made in the Dáil as that might suggest an inconsistency between those utterances and other statements. Again, the Statement of Claim here does not seek to impeach any statement in any such way. 90. In addition to the Irish text, a further reason for interpreting ‘amenable’ in such a way as to not close off the possibility for all judicial review (even the granting of declaratory relief) is the fact that case law clearly establishes that Art. 15.13 must be interpreted narrowly. In Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227 Finlay C.J. stated at 271 that he felt “obliged to take” a “narrower or less liberal interpretation” of Art. 15.12 and 15.13. 91. In Pepper v Hart [1993] AC 593 the meaning of Art. 9 of the English Bill of Rights - which reads: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” - was considered. Lord BrownWilkinson stated: “In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed.” (emphasis added) Certain judicial pronouncements of the English courts are not dissimilar to the declaratory relief sought here 33 92. The declarations sought here are not at all dissimilar from (and in some senses are milder than) condemnations which the English courts have already seen fit to make through their judgments in respect of utterances in parliament which undermined a court order. Two examples will suffice for present purposes. 93. In Doncaster MBC v Haigh [2011] EWHC 2412 (Fam) the Court stated as follows: 29 In the skeleton argument counsel for the local authority referred to the fact that parliamentary privilege has been invoked in this case: “A member of parliament has, on the basis of inaccurate and misleading information supplied to him, deployed parliamentary privilege to highlight the case. We would respectfully encourage the court to deprecate the use of parliamentary privilege in that way in circumstances where there is inevitably incomplete material available and the privacy of a child is threatened. It is perhaps helpful to emphasise that s.97 (2) of the Children Act 1989 , which protects the privacy of children in the currency of proceedings, was enacted by parliament itself, not by judges….” 30 I have, of course, considered that submission very carefully, but I do not think it would be appropriate for me to become involved in matters which (a) are not my province, and (b) are not necessary for the proper resolution of the case before me. 31 What I think I can properly say is that orders of the court are not made capriciously and any disobedience of them is to be deplored. If a judge wishes to preserve the anonymity of a child and so orders, that order must be obeyed.” (emphasis added) 34 94. Second, as already noted above, in Goodwin v News Group Newspapers [2011] EWHC 1437 Tugendhat J stated (at para 22): “Lord Stoneham was frustrating the purpose of the court order and thus impeding the administration of justice, …”. 95. Part of the Plaintiff’s reason for instigating the instant proceedings is that the disobedience of the order of the Court which is at issue has not been “deplored”, or indeed subjected to any official adverse comment or adverse determination at all by any branch of government. 96. The declaratory relief sought here will serve to mark the courts’ disapproval of the (knowing) depriving of effect of court orders which has gone uncensored, and indeed condoned, by the Oireachtas committee, including through its references to “good faith”. Such declaratory relief, which will have the effect of clarifying for parliamentarians the scope of what is and is not legitimate, is very much not a remedy in vain. This is apparent from numerous cases, including Doherty v Government of Ireland where Kearns P granted a declaration that “there has been unreasonable delay in moving the writ for the by-election in Donegal South West” (para 76). In the course of granting that declaration, he stated (at para 74): “I would hope, however, that any clarification provided by this judgment would have that effect” [i.e. that the Government would move and support the writ]. In this regard, he quoted from the statement of Hamilton C.J. in District Judge McMenamin v. Ireland [1996] 3 I.R. 100 who stated inter alia in that case (at 136): “… having regard to the respect which the separate organs of government, the legislature, the Government and the judiciary have traditionally shown to each other, I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with the law and in accordance with its constitutional obligations." 35 The statements do not attract parliamentary privilege because they exceed the proper purpose of parliamentary privilege 97. Under the heading of ‘Constitutional Interpretation’, Hogan and Whyte: JM Kelly: The Irish Constitution (4th ed., 2003) comment at para 1.1.02: “At present, however, the ‘broad’ and ‘harmonious interpretation’ approaches are probably in the ascendancy …”. It is submitted that both interpretative approaches in fact favour the Plaintiff’s case (harmonious interpretation is dealt with separately below). 98. Hogan and Whyte state at para 1.1.05 of the ‘broad approach’: “…judges employing this method are likely to construe the text of the Constitution in a broad, purposeful manner which best advances ‘the intentions of the people as embodied therein’ and which identifies the Constitution’s ‘purpose and objective in protecting human rights’. “ 99. Part of the latter wording is drawn from the judgment of Costello J. in Murray v Ireland [1985] IR 532 at 538. 100. Therefore, a relevant consideration guiding the Irish Courts in respect of the interpretation of provisions of the Constitution is what the proper purpose of the provision in question is. 101. Here, the utterances exceeded the purpose of the constitutional protection under Art. 15.13 (or Art. 15.12) of utterances in the Houses, or rather did not come within that purpose in the first place. This was so for at least two reasons. First, it was not, and could not have been the intention of the People in enacting the Constitution that parliamentary privilege would be used to deprive Court orders of effect. Such would be incompatible with a harmonious interpretation of the Constitution, including because provisions like Article 34 make clear that justice shall be administered by the Courts. Second, and more specifically, the disclosures made by the 36 Deputies were not in fact necessary for the purpose of debating the merits or otherwise of any of the legislation they were considering. Rather the debate was merely a vehicle to deprive the Court order of effect under the cloak of privilege. 102. In discerning what the purpose of parliamentary privilege is, it is submitted that regard can usefully be had to case law in other jurisdictions. Indeed, this has been the approach of the Irish courts. In Howlin v. Morris [2006] 2 IR 321 Geoghegan, J. (with whom the majority of the Supreme Court agreed) stated at page 380-81, paragraph 85: “Although Article 15.12 and 13 have their antecedence in the Bill of Rights 1688 and/or the Speech or Debate Clause of the United States Constitution, no parallel could be found to match the provisions of Article 15.10 which, as I have already mentioned, are identical in their terms to Article 20 of the Constitution of 1922.” (emphasis added). 103. Furthermore, in Ahern v. Mahon [2008] 4 IR 704, Kelly J stated at page 7.12: “In the absence of an Irish authority which is precisely on point, it is appropriate to examine other common law decisions touching upon the question of parliamentary privilege as an aid to the proper interpretation of Article 15.13.” 104. In Canada (House of Commons) v. Vaid, Binnie J. in the Supreme Court of Canada considered that parliamentary privilege comprised “the necessary immunity that the law provides for Members of Parliament and for Members of the legislatures of each of the provinces ... in order for those legislators to do their legislative work.” 105. He stated at para 46: 37 “In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly's work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.” (emphasis added) 106. It is submitted that this test is not even close to being fulfilled on the facts here, in respect of any of the statements of the Deputies. 107. Irish law has referred to parliamentary privilege as “absolute” – see Attorney General v Hamilton (No 2) per Finlay C.J. at 270, although that case was not considering the use of privilege to determine justiciable controversies or deprive court orders of effect, and the statement is thus of no application to the present case. US cases have also used the term ‘absolute’ - see Eastland v. U.S. Servicemen’s Fund 421 U.S. 491 (1975) at 503. But that begs the question: ‘absolute’ within what domain? The U.S. Supreme Court has held that the privilege is “absolute” only within its proper scope – when “members are acting within the ‘legitimate legislative sphere’” (Id., quoting Doe v. McMillan, 412 U.S. 306 (1973) at 314). 108. In United States v Brewster 408 US 501 (1972) Chief Justice Burger stated at 517 of the Speech and Debate Clause of the US Constitution that the “… shield does not extend beyond what is necessary to preserve the integrity of the legislative process” (emphasis added). Chief Justice Burger also stated (in a passage which was expressly approved by Geoghegan J. in Attorney General v Hamilton (No. 2) at 243-44) at p.508: 38 “Although the Speech or Debate Clause's historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. We should bear in mind that the English system differs from ours in that their Parliament is the supreme authority, not a co-ordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy. Our task therefore is to apply the Clause in such a way as to ensure the independence of the legislature without altering the historic balance of the three co-equal branches of Government." (emphasis added) 109. In Brewster, the US Supreme Court explained that the Speech or Debate Clause does not protect “everything. . . ‘related’ to the office of a Member” (at 513-14). Rather, legislative privilege is limited to actions that are “clearly a part of the legislative process” (Id. at 513-16). 110. That requires the legislator’s actions to be “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” - Gravel v. United States, 408 U.S. 606 (1972) at 625. It is submitted that the utterances of the Deputies do not conform to that test here. 111. Moreover, the US Speech or Debate Clause protects only “the due functioning of the [legislative] process” – Brewster at 515-16. The privilege does not include actions that are outside “the sphere of legitimate legislative activity,” even if they relate directly to the business of the legislature - Tenney v. Brandhove 341 U.S. 367 (1951) at 378 (emphasis added). In particular, the Speech and Debate Clause does not include actions “where it is obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive.” (Id., 39 emphasis added). 112. In the US legislative privilege is protected solely for instrumental reasons, as a Massachusetts court made clear in 1808 (Coffin v. Coffin, 4 Mass 1, 27 (1808)) in a decision that the US Supreme Court cited as persuasive in Tenney at 373. In other words, legislative privilege exists not for the benefit of individual legislators, but to vindicate the rights of the people and ensure that their government can work effectively for the common good (c.f. Brewster at 507). James Madison explained that the legislative privilege must be guided by “the reason and necessity of the privilege” (see Josh Chafetz, Democracy’s Privileged Few (2007) at 89). It is submitted that it would accordingly defy both law and logic for this Honourable Court to extend legislative privilege beyond its proper purpose and scope in a way that would manifestly subvert the operations of the judicial branch. 113. Professor Laurence Tribe in his leading treatise American Constitutional Law (3rd ed., 2000) (Foundation Press, New York) has written (Volume I at 1018, 1020) that “the Speech or Debate Clause should not be construed to be all-encompassing” and that “the federal legislative authority bestowed in the Constitution is a complex array of explicit and implicit grants of power, circumscribed by express limits as well as ‘tacit postulates.’” 114. There are indications that even legal systems without a written constitution are concerned to limit the privilege to its proper purpose. Viscount Radcliffe , delivering judgment in Attorney General of Ceylon v de Livera [1963] AC 103 stated at 120: “… given the proper anxiety of the House to confine its own and its members' privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member's true functions. (emphasis added) 40 115. In Ahern v Mahon, Kelly J. (as he then was), referring to the Privy Council’s New Zealand Prebble decision, stated at para 32: “32 That Council's advice to the Queen was contained in the opinion of Lord Browne-Wilkinson. At p. 332 of the report, he identified alternative interpretations which were sought to be given to article 9 of the Bill of Rights 1689. He pointed out that in addition to the actual wording of article 9 itself, there is a long line of authority which supports a wider principle of which that article is merely one manifestation. That principle is that the courts and parliament are both astute to recognise their respective constitutional roles. …” (emphasis added) 116. In other words, the protection of utterances in parliament under Art. 9 of the Bill of Rights is “merely one manifestation” of the principle that the courts and the parliament should respect each other’s roles. Viewed in the light of this rationale, it would be an anathema if the privilege were itself used to do violence to the separation of powers, in particular in an Irish context where the parliamentary sovereignty upon which Article 9 is predicated is of no application. 117. In Young v Ireland (Application No. 25646/94, p. 122) the European Commission on Human Rights, in ruling on the admissibility of an application to the court expressed (at p. 127) the following view of the principle underlying the immunity accorded to political representatives: The underlying aim of the immunity accorded to TDs is clearly in furtherance of the public interest to allow TDs to engage in meaningful debate and represent their constituents on matters of public interest (in the present case public safety and the quality of medical treatment in hospitals) without having to restrict their observations or edit their opinions because of the danger of being amenable to a court or other such authority. (emphasis added) 41 118. Although part of the purpose of parliamentary privilege is freedom of speech and “meaningful debate” in the Oireachtas in the interests of democratic governance, it is to be noted that granting the declarations sought by the Plaintiff would not now or in the future in any sense prevent any Deputy or Senator from engaging in “meaningful debate”. (Paragraph 13 of the Twelfth and Thirteenth Named Defendants’ Defence puts it in terms of “ensuring freedom of debate”, and it is submitted that there is no threat to that either.) Granting the relief could not possibly exert any chilling effect on Deputies’ or Senators’ freedom of debate, including their rights to criticize either the Plaintiff or a judgment of the Courts, even a judgment granting an injunction. You can do all or any of those things without disseminating information which you know that a judge has carefully considered and has ruled should not (at least for the moment) be released, notwithstanding any public interest argument. It is not necessary to either free speech in the Oireachtas or to democratic governance that Deputies should be able (by either words or conduct) to negate the effect of court orders. It is submitted that the consequence of all of this, on a proper application of constitutional principles, including the ‘broad approach’ is that such utterances which violate court orders are not constitutionally protected. 119. Furthermore, the interests of a democratic state are broader than free speech in parliament. As Kenny J. put it in Ryan v Attorney General [1965] IR 294 at 310: “What can be more important in a democratic State than the personal rights of the citizens?”. 120. The Defendants will presumably respond that the purpose of the protection of parliamentary utterances is the expediency that members should have certainty of protection, such that they do not have to question whether a particular utterance will be protected or not. However, it is unrealistic to assume that members of the Oireachtas are that unsophisticated: if there is a court order specifically enjoining dissemination of certain information, there is no uncertainty in a 42 requirement not to undermine it and deprive it of effect. Arguments based on chilling effects simply do not withstand scrutiny in this discrete situation (unlike, say, perhaps a defamation context). But even if there were any uncertainty, Supreme Court judges have indicated that it is alien to the Irish constitutional order for the rights of individuals to be sacrificed at the altar of either expediency or certainty. Kingsmill-Moore J. in Attorney General v Ryan’s Car Hire [1965] IR 642 at 654: “The plea that ‘it is expedient that one man should die for the multitude’ must always be met uncompromisingly by a judge with the words, ‘I find no fault in this just man,’ and he must not falter in his determination. However desirable certainty, stability, and predictability of law may be, they cannot in my view justify a Court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous.” THE COURT HAS JURISDICTION TO GRANT THE RELIEFS SOUGHT IN THE CIRCUMSTANCES OF THIS CASE EVEN IF ART. 15 IS ENGAGED, AND IT SHOULD DO SO 121. Even if the declarations sought on the Amended Statement of Claim herein were such as to engage Article 15 (which for the foregoing reasons they are not), it is nonetheless submitted that the Court does have jurisdiction to grant the reliefs sought in the exceptional circumstances of this case and that it should do so. Irish case law indicating that the Courts do have power to grant orders restraining even utterances in the Oireachtas in the interests of protecting litigants’ privacy 43 122. Although there is limited Irish case law germane to the issue arising in this case, it is submitted that such case law as there is supports the Plaintiff’s position. 123. In Cogley v RTE [2005] 4 IR 79 Clarke J. stated at para 43: “In a great number of publications or broadcasts which deal with important public issues, persons or bodies will necessarily be criticised. There will frequently be some basis for some such persons or bodies to at least suggest that what is said of them is unfair to the point of being defamatory. If it were necessary only to establish the possibility of such an outcome in order that the publication or broadcast would be restrained, then a disproportionate effect on the conduct of public debate on issues of importance would occur. In that regard it is important to note that both the Constitution itself and the law generally recognises the need for a vigorous and informed public debate on issues of importance. Thus the Constitution confers absolute privilege on the debates of Dáil and Seanad Éireann. The form of parliamentary democracy enshrined in the Constitution requires that there be a vigorous and informed public debate on issues of importance. Any measures which would impose an excessive or unreasonable interference with the conditions necessary for such debate would require very substantial justification.” (emphasis added) 124. Although it is accepted that there was not argument before Clarke J. on the relevant point, and it therefore cannot be said that his observation is in any way binding, the reference to interfering with “such” debate where a “very substantial justification” exists to do so, can only be a reference to the debates of Dáil and Seanad Éireann, and the debates which occur in the course of the “parliamentary democracy”. 125. It may also be noted at this juncture that in Watkins v. United States 354 U.S. 178 (1957) the U.S. Supreme Court vindicated the rights of a victim 44 of legislative abuse and condemned what it described (at 196) as “broadscale intrusion into the lives and affairs of private citizens.” Watkins concerned an individual who had refused to answer questions from a congressional subcommittee regarding what he knew about members of the Communist Party. The Supreme Court warned at 187 that “[t]here is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress” (emphasis added). The Court pointed to a history of abuse of the contempt power and legislative privileges in England (see 188-91). The Supreme Court has repeatedly held that the Courts do have jurisdiction where Oireachtas privilege is exercised in clear disregard of the Constitution 126. It is accepted that in Attorney General v Hamilton (No. 2) it was held that Oireachtas privilege could not be balanced against personal rights in Article 40, namely Mr. Goodman and Goodman International’s constitutional right to their good name (see e.g. Geoghegan J. at 250). However, it is submitted that the relevant statements must be seen in context. First, no issue of interference with the judicial power of the State arose – indeed the Goodman v Hamilton cases expressly held that the Tribunal was not exercising judicial power. Second, and relatedly, the ‘competing’ constitutional provision, Article 40.3.2, expressly posits an obligation upon the State to protect the citizen’s right to a good name, only “as best it may”. Such qualifying language is markedly absent from the other constitutional provisions relevant in this case, including Article 34.1, Article 35.2 and Article 6. To the contrary, Art. 34.1 was described by O’Higgins C.J. in State (DPP) v Walsh [1981] IR 412 as being “imperative in its terms”. 127. The Supreme Court has in fact made clear that parliamentary privilege is not absolute, or at least not always so, and it is respectfully submitted that this Honourable Court is bound by such statements and would fall into 45 error if it were to simply dismiss this case by reason of non-justiciability alone, which appears to be what the Defendants invite it to do. 128. In O’Malley v Ceann Comhairle [1997] 1 IR 427 O’Flaherty J., giving the judgment of the Court with which Murphy and Lynch JJ agreed, stated at 431: "How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dáil Éireann that it would seem to be inappropriate for the Court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the House as to remain within the competence of Dáil Éireann to deal with exclusively, having regard to Article 15.10 of the Constitution". (emphasis added) 129. In Curtin v. Dáil Éireann the Supreme Court (per Murray CJ) observed at 627 that: "The obiter dictum of O'Flaherty J. in O'Malley v. An Ceann Comhairle [1997] 1 I.R. 427 suggests that the Courts would not, in a clear case, permit even the Oireachtas to default on its constitutional obligation". 130. In Callely a majority held that the conduct of a Seanad Committee’s investigation into a Senator’s expenses claims was justiciable by the courts. McKechnie J., who was part of that majority, at para 355 stated that he “entirely agreed” with the view of Kearns P. in Doherty at para 44 that: “there is ample precedent for concluding that decisions or omissions which affect or infringe citizens' rights under the Constitution are prima facie justiciable.” 46 131. Even the joint judgment of O’Donnell and Clarke JJ. in Callely (although holding that the Seanad committee’s investigation was non-justiciable) nonetheless specifically states that the courts do have a jurisdiction to intervene in respect of the internal affairs of the Oireachtas in exceptional circumstances. The judges stated at p.194 (para 249) in a passage which is useful to set out in extenso on account of resonances with the instant situation:“Furthermore, the fact that the Constitution requires that there remain an area of activity in the legislature which is non-justiciable does not mean that that area is beyond the reach of the Constitution. The Oireachtas is itself required to uphold the Constitution and to respect the rights of citizens, whether members or not. This indeed, is no doubt why the Oireachtas has adopted rules to protect individuals in the context of the exercise of freedom of speech within the Oireachtas which is guaranteed by the Constitution and why there is elaborate provision for fair procedures in the legislation providing for committee hearings under the ethics in public office legislation. The fact that there cannot be immediate recourse to the courts places, if anything, a heavier onus on the Oireachtas to ensure that constitutional rights are respected in proceedings which are themselves non-justiciable. Finally, and on a related point, the fact that the area of non-justiciability is itself derived from the principle of separation of powers under the Constitution is itself a limitation on the manner in which the powers may be exercised. A principle which is derived from the Constitution and intended to maintain constitutional equilibrium could not be used to subvert the order and values protected by the Constitution. Accordingly, proceedings which amounted to a fundamental departure from the dictates of the Constitution, which [were] neither prevented nor remedied by the Oireachtas itself then (as indeed was perhaps contemplated in passing in cases such as Finn v. The Attorney General [1983] I.R. 154, Slattery v. An Taoiseach [1993] 1 I.R. 286 and O'Malley v. An 47 Ceann Comhairle [1997] 1 I.R. 427) the courts could be obliged to act to maintain the Constitutional balance. It is, however, neither necessary nor perhaps desirable to speculate on the precise circumstances in which it could be said that the principle of the separation of powers no longer required that the proceedings of the legislative power be beyond judicial scrutiny. No such case is alleged here and nor does it appear to have arisen as a matter of history since the foundation of the State. It is not to be readily assumed that such an occasion would arise in the future.” (emphasis added) 132. Fennelly J, who was part of the majorities in Callely on both the justiciability issue and the fair procedures issue, agreed with the above passage, stating at para 157: “[157] In this context, I express my agreement with the statement, at para.250 of the joint judgment of O'Donnell and Clarke JJ., that a “principle which is derived from the Constitution and intended to maintain constitutional equilibrium, could not be used to subvert the order and values protected by the Constitution”. Thus, if it should transpire that a House of the Oireachtas was either generally or in a particular case disposed to ignore and not observe the constitutional imperatives, the courts, as the ultimate guardians of rights, would be bound to intervene. It is not easy to imagine such circumstances or to devise a standard. Tentatively, I would suggest that the standard should be that of “clear disregard” of constitutional rights adopted in such cases as Curtin v. Dáil Éireann [2006] IESC 14 , [2006] 2 I.R. 556 mentioned above.” (emphasis added) 133. In fact, the right and duty of the Courts to intervene with respect to functions within the sphere of other branches of government where there has been a “clear disregard” of the Constitution goes back to Boland v An Taoiseach [1974] IR 338 in which Fitzgerald C.J. stated at 361: 48 “Consequently, in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.” The instant case is indeed sufficiently exceptional to warrant intervention by the Courts 134. It is submitted that the instant situation does in fact fall within all of the circumstances contemplated by O’Donnell and Clarke JJ. in the passage above, such that the declaratory relief sought by the Plaintiff should and must be granted even on the reasoning of the minority judgment in Callely (as well as the majority judgments). 135. First, there has indeed been a subverting of the order and values protected by the constitution which strikes at the “constitutional equilibrium”. The Deputies’ speeches strike at the separation of powers because they (i) undermine a court order, (ii) deprive it of effect, and (iii) determine a controversy pending in the courts. 136. Second, this indubitable “departure from the dictates of the Constitution” was “neither prevented nor remedied by the Oireachtas itself”. Even putting aside the irrationality of the findings of responsibility and good faith and the other clear breaches of Standing Order 57, the Committee seems to blithely assume that individual members do indeed have the right and power to deprive court orders of effect. The findings of the Committee are particularly serious because, if this Honourable Court does not act, then (in a digital world) all similar court injunctions aimed at protecting privacy have effect only at the sufferance of individual politicians, and the same is also true for the protection of the court process more generally (including that particular material should not be 49 published which might influence a criminal or civil trial). It also could not be excluded that this might have transnational implications. 137. Third, and unfortunately, this case is indeed the very first of its kind “to have arisen as a matter of history since the foundation of the State” because never before have individual Dáil deputies deprived a court injunction of effect in such a way, certainly not to the Plaintiff’s knowledge, and certainly not in any manner which has been the subject of litigation. While one would share O’Donnell and Clarke JJ’s hope that such would not arise again, it is submitted that the simple fact is that similar situations will undoubtedly re-occur in the future unless this Honourable court grants the declaratory relief sought. 138. It is also submitted, for the same reasons, that the instant situation also fulfills the seemingly less stringent test of “clear disregard” posited by Fennelly J., such that the courts are not merely entitled to intervene but, in his words, “bound to intervene”. Constitutional protections do not extend to an abuse of rights 139. Related to O’Donnell and Clarke JJ’s statement in Callely that “A principle which is derived from the Constitution and intended to maintain constitutional equilibrium could not be used to subvert the order and values protected by the Constitution” is the fact that the statements by Deputies Murphy and Doherty (even if prima facie privileged) are not shielded by the Constitution from being the subject of declarations by this Court, on account of the fact that they are an abuse of rights, here the rights conferred upon Deputies by Article 15.13. 140. In Crowley v Ireland [1980] IR 102 it was held that teachers, in taking industrial action, had acted primarily for the purpose of depriving the plaintiffs of primary education (a constitutional right) in order to exert pressure on the school authorities. McMahon J stated at 110: 50 “The character of an act depends on the circumstances in which it is done and the exercise of a constitutional right for the purpose of infringing the constitutional rights of others is an abuse of that right which, in my opinion, can be restrained by the courts.” 141. On appeal, O’Higgins CJ stated at 125: “Rights guaranteed by the constitution must be exercised with regard to the rights of others. It is on this basis that rights are given by the constitution. Once it is sought to exercise such rights without regard to the rights of others and without regard to the harm done to others then what is taking place is an abuse and not the exercise of a right given by the constitution. The abuse of such rights ranks equally with the infringement of the rights of others and should be condemned by the courts in protection of the constitution.” (emphasis added) 142. The concept of an abuse of rights also finds recognition in Article 17 of the ECHR and in Article 54 of the Charter of Fundamental Rights of the EU. 143. There are some indications that even rights in respect of absolute privilege can be lost in the event of an abuse. In Re Haughey [1971] O’Dalaigh C.J. stated (at 264-65): “The immunity of witnesses in the High Court does not exist for the benefit of witnesses, but for that of the public and the advancement of the administration of justice and to prevent witnesses from being deterred, by the fear of having actions brought against them, from coming forward and testifying to the truth. The interest of the individual is subordinated by the law to the higher interest, viz., that of public justice, for the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences. It is salutary to bear in mind that even in the High 51 Court, if a witness were to take advantage of his position to utter something defamatory having no reference to the cause or matter of inquiry but introduced maliciously for his own purpose, no privilege or immunity would attach and he might find himself sued in an action for defamation. The witnesses before the present Committee are in no better position. The fact that a witness may have been permitted or even encouraged to venture into the area will afford him no defence in such an action.” (emphasis added) 144. The abuse of rights which occurred here was ignored and went uncensored by the Committee. 145. Here, the statements by the Deputies forced the Plaintiff (through his counsel) to agree to amendments of the Order of the Court in respect of the injunction. The Plaintiff was thus pressured to waive constitutional rights, which offends, at the very least, against the spirit of the Constitution. In Educational Company of Ireland v Fitzpatrick [1961] IR 345 Kingsmill Moore J. stated inter alia at 396-97: “It seems to me that any sort of pressure which compels me to act in a way which I would not have acted but for such pressure is a form of coercion and any such pressure designed to deprive me of a right given to me by the Constitution is against the spirit of the Constitution; …” Non-absolute nature of constitutional rights (including Articles 15.10 to 15.13) 146. In W v Ireland (No. 2) Costello J. stated at p.164: “The rights guaranteed under the Constitution are not absolute rights (with the exception of an implied right not to be tortured, which must be regarded as an absolute right which can never be abridged) and 52 their exercise and enjoyment may be, and frequently are, limited by reason of the exigencies of the common good.” 147. Even the rights of the constitutional Family, being entrenched in strong terms as being “inalienable and imprescriptible” have been held not to be absolute. In Murray v Ireland [1991] ILRM 465 the Supreme Court (per Finlay C.J.) stated: It is difficult to identify a constitutional right that is unqualified; the right to life itself is not absolute (see Article 13.6). The unenumerated right to procreate children, like all unenumerated rights, must be given a rational meaning. It may be lost temporarily as a result of any form of detention, arrest or imprisonment for a criminal offence; detention for a contempt of court; detention pursuant to mental treatment procedures.” 148. In the High Court in the latter case Costello J. stated at 538-39: “It is abundantly clear that too literal a construction of the Constitution could lead to absurdities. … [T]he power of the State, to delimit the exercise of constitutionally protected rights, is expressly given in some Articles and not referred to at all in others, but this cannot mean that, where absent, the power does not exist. … As I suggested in The Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373 at p. 385, in construing the Constitution, the courts should bear in mind that the document is a political one as well as a legal one and whilst not ignoring the express text of the Constitution, a purposive approach to interpretation which would look at the whole text of the Constitution and identify its purpose and objectives in protecting human rights, is frequently a desirable one. This view seems to be in accord with that recently expressed in the Supreme Court in Tormey v. Ireland [1985] I.R. 289 by Mr. Justice Henchy who referred to the need to adopt a construction of the constitutional provisions which would ‘achieve the smooth and harmonious operation of the 53 Constitution" and to avoid a strict construction which "would allow the imperfection or inadequacy of the words used to defeat or pervert any of the fundamental purposes of the Constitution.’ 149. Similarly, it is submitted that although limitations on Article 15.10 to 15.13 of the Constitution may not be expressly referred to in the text, it cannot follow that such limitations do not exist – in particular when one considers that it could never have been the intention of the People in enacting Constitution that parliamentary privilege would be used to determine justiciable controversies and deprive court orders of effect and litigants of judicial protection. 150. Such an absolutist approach to parliamentary privilege would be to deny the statement made by the People when enacting their Constitution:“We the people of Éire … seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured …Do hereby adopt, enact, and give to ourselves this Constitution.” (emphasis added). 151. An equivalent statement of the ordinal priority of dignity of the individual vis-à-vis the common good does not appear in UK constitutional law, nor even in the written constitutions of various other countries. 152. Even the defendant Oireachtas Committee in Callely itself accepted that there was certain conduct on its part in respect even of a member of the House which would be justiciable. McKechnie J. noted at para 409: “The appellants do not argue that what is involved in or covered by Article 15.10, expressly or impliedly, is deserving of absolute immunity. … A provision in the rules for a jail sentence, or one with similar severity for say unruly behaviour, would be reviewable. … A rule in standing orders, indeed even in legislation, which would deny 54 a person in the position of Mr. Callely any right to be heard could be looked at.” 153. In Howlin v Morris [2006] 2 IR 321 Geoghegan J. (with whom a majority of the Supreme Court agreed) declared himself “impressed” with the examination of Art. 15.10 by the Constitution Review Group of 1967. He quoted from paragraph 36 of the Review Group’s observations at p.383 of his judgment as follows: “It will be observed, first of all, that [Art. 15.10] says nothing about the non-application of other provisions of the Constitution in relation to the matters at issue. In the absence of such an exclusion clause, it must be assumed that other provisions of the Constitution such as Articles 34, 37, 38 and 40 are not brushed aside as they are, for example, in the case of Article 28.3.3. If they continue to operate with full force, then it necessarily follows that the powers of the Houses are not at all as wide as those of some other parliaments such as the British.” (emphasis added) 154. Article 37 similarly uses the phrase “Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature …”. Since the Review Group reported in 1967, other provisions of the Constitution inserted by the People have used strong language purporting to elevate themselves above other Constitutional articles, similar to Art. 28.3.3. Article 29.4.6 provides that: “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State … that are necessitated by the obligations of membership of the European Union …”. Article 9.2.1 and Article 29.7.2 use the phrase “Notwithstanding any other provision of this Constitution …”. 155. It is notable that none of Articles 15.10, 15.12 or 15.13 contain such language. It follows they must be interpreted in light of, and if necessary subject to, other constitutional provisions and principles. Indeed, that is 55 precisely what McKechnie J. appears to conclude at an earlier point of his judgment in Callely where he stated (at para 372): “Irrespective however of what particular approach may be favoured in any given situation, there remains an overarching obligation to view the Constitution as a whole and, wherever possible, to arrive at a conclusion where the provisions in question best complement, not only other similar, interrelated provisions with which they naturally identify, but also the framework and architecture of the Constitution itself.” 156. Not dissimilarly, Finlay C.J. in Attorney General v. Hamilton [1993] 2 I.R. 250 referred at p. 267 to the obligation to view the Constitution “in the manner most likely to make it an effective instrument for the ordering of society and the governing of the Nation”. 157. Here, granting the declaratory relief sought by the Plaintiff best comports with respecting inter-related constitutional principles and the constitutional “framework and architecture”, precisely because the approach of the Deputies, validated by the Committee members, was to strike at that architecture by arrogating to the Deputies functions within the province of the judiciary. Far from the position adopted by the Defendants in this litigation being “most likely” to make the Constitution “an effective instrument for the ordering of society and the governing of the Nation” it would in fact be a recipe for a special form of anarchy because it would mean that carefully considered judgments of the Court could be unwound at the whim of rogue individual legislators for virtually whatever purpose they pleased. Harmonious interpretation and Practical concordance 56 158. Various judgments indicate that a harmonious approach to constitutional interpretation falls to be taken. In State (DPP) v Walsh [1981] O’Higgins C.J. stated at 425: “Article 38, s. 5, may not be so considered [i.e. in isolation]. It must be construed and considered as part of the Constitution and it should be given, if possible, a meaning and an application which does not lead to conflict with other Articles and which conforms with the Constitution's general scheme. In this regard a relevant Article to be considered is Article 34 under which, as already indicated, the judicial power of government is vested in the Courts and is, in accordance with Article 6, s. 2, exercisable only by, or on the authority of, the Courts which are the designated organ of State established for that purpose by the Constitution.” 159. Indeed, in reaching his (majority) conclusion on the issue of justiciability in Callely, Hardiman J. stated that he was influenced by the submission of the Oireachtas committee in that case which, he indicated (at para 111), was to the effect that there was: “…[a] need for a harmonious approach to constitutional interpretation … the courts should not ‘limit their vision [sic] to the words only of Article 15 when attempting to articulate the nature and scope of the legislative power’ …” 160. Robert Alexy, A Theory of Constitutional Rights (OUP, 2002) states at p.102: “The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.” 161. Employing Alexy’s formulation, there has been significant detriment to the court orders which the Plaintiff obtained, in terms of their being robbed of effect. Moreover, there is a serious risk of a future snowball effect in terms of such detriment as a result of the approach taken by the Committee, and the signal which its findings of “good faith” and 57 “responsibility” will send to other members contemplating breaking injunctions. On the other side of the ledger, that detriment is not matched or warranted by a particular importance attaching – in this type of situation – to free debate in the Oireachtas. As already noted, there can be full freedom of debate and discussion in the Oireachtas without any necessity to deprive court orders of effect. If a court attempted to order that Deputies could not debate certain subject matter, that might well be very different, but there is no suggestion that any such order would or could ever be made. 162. The approach which the Defences appear to adopt would entail sacrificing other constitutional values to Article 15.13, seemingly on account of the wording of the latter. It is questionable whether this is a proper approach. It is submitted that the interpretative approach of the German Constitutional Court, described by Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed., 1997) would not only be more sophisticated, but more apt to do justice and comport with the constitutional scheme as a whole. Kommers writes at pp.45-46: “In its first major decision – the Southwest State case (1951; no. 3.1) – the Federal Constitutional Court underscored the internal coherence and structural unity of the Basic Law as a whole. ‘No single constitutional provision may be taken out of its context and interpreted by itself’, declared the court. ‘Every constitutional provision must always be interpreted in such a way as to render it compatible with the fundamental principles of the Constitution and the intentions of its authors’. … Closely related to the concept of the constitution as a structural unity is the principle of practical concordance (praktische Konkordanz), according to which constitutionally protected legal values must be harmonized with one another when such values conflict. One constitutional value may not be realized at the expense of a competing 58 constitutional value. In short, constitutional interpretation is not a zero-sum game. The value of free speech, for example, rarely attains total victory over a competing constitutional value such as the right to the development of one’s personality. Both values must be preserved in creative unity. Professor Konrad Hesse wrote: ‘The principle of the Constitution’s unity requires the optimization of [values in conflict]: Both legal values need to be limited so that each can attain its optimal effect. In each concrete case, therefore, the limitations must satisfy the principle of proportionality; that is, they may not go any further than necessary to produce a concordance of both legal values’. … The [Constitutional] Court consistently invokes the principle of proportionality in determining whether legislation and other government acts conform to the values and principles of the Basic Law. In much of its work, the court seems less concerned with interpreting the Constitution – that is, defining the meaning of the documentary text – than in applying an ends-means test for determining whether a particular right has been overburdened in light of a particular set of facts. In fact, the German approach is not so different from the methodology often employed by the United States Supreme Court in fundamental rights cases.” (emphasis added) 163. It is submitted that a ‘practical concordance’ approach, seeking to maximize both the values of free debate in parliament and the administration of justice through the Courts favours the grant of the relatively minor, discrete and purely declaratory relief sought. To the extent that the declarations interfere with any legitimate interests of the House or of their members at all (which is not accepted) it is submitted that the restriction in question is proportionate. 164. The declarations sought, to quote Hesse, do not “go any further than necessary to produce a concordance of both legal values”. By contrast, the approach which appears to be urged by all defendants is entirely “zero 59 sum”. It would amount to an abrogation, not a limitation, of rights and values on the Plaintiff’s side of the ledger. 165. There are indications that the latter concept of abrogation, rather than limitation, of rights has been deprecated by the Irish courts. 166. In Re Article 26 and the Health (Amendment) (No.2) Bill 2004, the Supreme Court did not consider that the referred Bill could be considered to ‘regulate’ the exercise of property rights, noting, in the course of deeming the Bill unconstitutional that “What it proposes is the extinction of the rights in question.” Delivering the judgment of the Court, Murray C.J. continued (at para 134-135) that because the Bill’s provisions “constitute an abrogation of property rights” it was not even necessary to consider any arguments based on the principle of proportionality. 167. In CC v Ireland (No.2) [2006] 4 IR 1, delivering the judgment of the Supreme Court, Hardiman J. commented obiter at para 63: “To jail perfectly respectable people on the basis of an event over which they had no control (they are, after all, "blameless"), is so complete a negation of their rights to liberty, due process, equality and respect for their human dignity that it cannot be contemplated, no matter what the benefits. To put it another way, it is not a balancing of the blameless driver's rights against those of the rest of society: it is a negation of those rights in the interest of a concept of social good. ….” (emphasis added) 168. The European Court of Human Rights has also had occasion to caution against infringing the ‘very essence’ or ‘very substance’ of a right. For example, in Philis v Greece 13 EHRR 741 (1991) the applicant was a consultant engineer who complained that Greek law denied him the right to seek redress through the courts for non-payment of fees for design projects; only the Technical Chamber of Greece could do so. In the 60 course of finding a violation of Article 6(1) of the ECHR, the Court stated at para 59: “This right of access, however, is not absolute but may be subject to limitations since the right by its very nature calls for regulation by the State. Nonetheless the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.” 169. Here it is submitted that the approach contended for by both Defences would indeed impair or negate the “very essence” of the Plaintiff’s rights. Hierarchy of constitutional interests here as between individual members of the Houses and the judicial branch of government 170. If, contrary to the approach considered above, practical concordance or harmonization is not possible, and one constitutional value must be sacrificed to another, it is submitted that it is in fact Articles 15.10 to 15.13 which properly fall to be subordinated to Article 34.1 and the protection of the separation of powers through Article 6. 171. There has been recognition of the principle of some hierarchies as among constitutional interests. In Murray v Ireland [1991] Finlay C.J. stated: “Without setting parameters for it, this Court has recognised that there is a hierarchy constitutional norms. (See D.P.P. .v. Shaw - 1982 - I.R. 1 ) It was identified in the instant case by Costello J., who was the trial Judge in Shaw's case and by Hamilton P. in Attorney General (SPUC Limited) .v. Open-line Counselling Limited (1987 ILRM 477 ). It is not necessary and it is undesirable to identify in this case such a hierarchy of constitutional norms.” 61 172. Even if one were to accept that the language of the Constitution’s protection of parliamentary privilege is cast in more stark terms than certain other articles are, it is submitted that that is entirely irrelevant to whether it is a more important constitutional value, in the event of a direct clash of constitutional interests. 173. The importance of preventing interference with the administration of justice by the Courts is a high constitutional value, so important that it has been considered to warrant departing from a literal reading of other constitutional articles. Article 13.6 and the case of Brennan v Minister for Justice have already been considered above. In State (DPP) v Walsh [1981] IR 412 O’Higgins CJ (Parke J concurring) held that a literal interpretation of the right to trial by jury in Article 38.5 had to be eschewed because it would result in a situation where the administration of justice would be undermined, because the courts would not be able to punish criminal contempt. 174. In statements with some resonances for present purposes, O’Higgins C.J. in Walsh noted that Art. 34.1 is “imperative in its terms” and continued at 426: “… it is equally essential that the Courts' authority be effective and that it be both recognised and respected. If such proceedings are obstructed or interfered with, if witnesses are frightened, threatened or suborned, if a pending hearing is prejudiced by unfair comment or publicity, or if a court is held up to public ridicule and contempt by baseless allegations of impropriety and corruption, then in no such circumstances could justice be administered both fairly and effectively. But under the Constitution it is the solemn duty of judges to see that justice is administered in the Courts. Surely the imposition of this duty carries with it both the power and the corresponding duty to act in protection of justice, if its fair or effective administration is 62 endangered or threatened. In my view, the judicial power of government (which, in accordance with Article 6 of the Constitution, is exercisable only by or on the authority of the Courts as the organ of State established by the Constitution for that purpose) is sufficiently extensive to authorise the Courts to take any action that is necessary for the due administration of justice.” (emphasis added) 175. He noted that the protection of judicial independence in Article 35.2 “is a solemn recognition by the people in enacting the Constitution that the Judiciary, as the custodians of the rights of citizens, shall be free to act as justice requires …” (at 426) and posed the following rhetorical question, which it is submitted is also apposite here (at 427): “How could such independence be effective if … the judges who were endeavouring to administer justice in the proceedings attacked or threatened had to seek assistance from another authority?” 176. Another reason for casting the hierarchy between the two sets of values in a way that favours granting the Plaintiff the relief he seeks is on account of the difference between the modus operandi of the judicial branch and elected politicians. 177. Article 34.6.1 provides: 6 1° Every person appointed a judge under this Constitution shall make and subscribe the following declaration: "In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me." 63 178. Judges are sworn to act without “fear or favour, affection or ill-will” towards all persons including the Plaintiff, but the same is not the case with politicians, for whom considerations of electoral advantage or garnering publicity may indeed make them ill-disposed toward the Plaintiff. Various cases have underscored the importance of the constitutional oath taken by Judges, both in terms of the trust which it means that members of the public can have in judges (see e.g. Bula v Tara (No.6) [2000] 4 IR 412 at 449) and in other contexts (see e.g. Permanent TSB v Langan [2016] IECA 229 at para 50). 179. The position as regards elected politicians is, with respect, radically different – which is, in most cases, no bad thing and important to democracy, in particular when the separation of powers is properly respected. Public choice theory has taught, and experience has shown, that politicians can and are easily swayed by electoral and political considerations. This has been recognised by Supreme Court judges in respect of parliamentary committees. In Callely, Murray J. stated at para 13: “Furthermore, the reality that parliamentary committees can be ‘distracted by politics’ as it has been put, ought not to be ignored when considering the systemic importance of judicial review since this was a factor which was explicitly taken into account in the decision of this court in Maguire v. Ardagh [2002] 1 I.R. 385.” (emphasis added) 180. Here the Committee members had an obvious incentive to prefer the interests of two of their own over a non-member of the Oireachtas, in particular against the contemporaneous climate which was one of no little obloquy against the Plaintiff for seeking to protect his rights and the integrity of orders of the High Court. 64 181. In 2011 the People rejected a proposed constitutional amendment that would have given extra powers to Oireachtas Committees in respect of non-members with a reduced role for the Courts. It is respectfully submitted that this evidences at least some level of distrust of parliamentarians and their motivations (which is not necessarily a unhealthy thing), and a much greater degree of trust in the independent judicial branch, on the part of the People, who are of course the highest actors in the Constitutional discourse. Moreover, this is relevant to the present case given that the Constitution falls to be interpreted in light of inter alia “contemporary circumstances including prevailing ideas and mores” (see e.g. Murray J. in Sinnott v. Minister for Education [2001] 2 IR 545 at p. 680). THE COMMITTEE’S FINDINGS The complaints to the Committee 182. It is useful at this juncture, under the penultimate section of these submissions, to recount the following facts. 183. The letter of complaint dated 20 May 2015 to the Ceann Comhairle pointed out that the statements made by Deputy Murphy under parliamentary privilege in Dáil Éireann on 6 May 2015 were inaccurate and a clear abuse of privilege. It asked that steps be taken to ensure that parliamentary privilege would not be utilized to interfere in the justiciable controversy then pending before the Courts in the said proceedings. 184. The letter of complaint dated 28 May 2015 to the Ceann Comhairle of Dáil Éireann the Plaintiff pointed out that the statements made by Deputy Murphy under parliamentary privilege in Dáil Éireann on 27 and 28 May 2015 clearly and knowingly breached the terms of the injunction made by the High Court on 21 May 2015 and were accordingly a clear abuse of privilege designed to frustrate the said Order and usurp the function of the 65 Courts. The letter again asked that steps be taken to ensure that parliamentary privilege would not be utilised to interfere in the justiciable controversy then pending before the Courts in the said proceedings 185. On 11 June 2015, the Plaintiff learned from a report in the online edition of the Irish Times newspaper that the complaints in respect of the statements made by Deputy Murphy under parliamentary privilege in Dáil Éireann on 27 and 28 May 2015 had been rejected by the Committee on Procedure and Privileges. The Plaintiff received no official communication from the Committee on that date, either before or after the said news report. 186. By letter dated 15 June 2015 to the Ceann Comhairle, the Plaintiff complained that he had learned that his complaints in respect of the statements made by Deputy Murphy under parliamentary privilege in Dáil Éireann on 27 and 28 May 2015 had been rejected from the media. The letter reiterated his complaints in respect of Deputy Murphy and went on to complain about the statements made by Deputy Doherty in Dáil, Éireann on 9 June 2015. The letter asked that steps be taken to ensure that parliamentary privilege would not be utilised to interfere in the justiciable controversy then pending before the Courts in the said proceedings. 187. By letter dated 15 June 2015 to the Plaintiff, the Committee on Procedure and Privileges of Dáil Éireann informed him that it had considered his letter of 20 May 2015 at its meeting of 10 June 2015 and had concluded that Deputy Murphy had not abused parliamentary privilege on 6 May 2015. 188. By letters dated 15 June 2015 to the Plaintiff, the Committee on Procedure and Privileges of Dáil Éireann informed him that it had considered his letters of 28 and 29 May 2015 at its meeting of 10 June 2015 and had concluded that Deputy Murphy had not abused parliamentary privilege, that her comments were a justifiable expression 66 of free speech by a parliamentarian and that she did not breach the sub judice rule. The letter stated that it was not lawfully entitled to make any determination as to whether Deputy Murphy breached the terms of the High Court injunction, as any such finding was exclusively a matter for the Courts. 189. By letter dated 17 June 2015 to the Plaintiff, the Acting Clerk of the Dáil informed him that his complaint in respect of the utterances of Deputy Murphy on 27 and 28 May 2015 had been definitively determined by the Committee on Procedure and Privileges which had issued its findings to him by letter dated 15 June 2015. The letter also stated that the Plaintiff’s complaint regarding the actions of Deputy Doherty on 9 June 2015 had been referred to the Committee on Procedure and Privileges for its consideration. 190. The Committee on Procedure and Privileges did not invite any submission from Deputy Murphy. 191. By letter dated 3 July 2015 to the Plaintiff, the Committee on Procedure and Privileges informed him that it had considered his complaint in respect of Deputy Doherty at its meeting of 1 July 2015 and had concluded that Deputy Doherty had not abused parliamentary privilege, that his comments were the expression of free speech by a parliamentarian and that he did not breach the sub judice rule. 192. As with its treatment of Deputy Murphy, the Committee on Procedure and Privileges did not invite any submission from Deputy Doherty. The serious and manifest defects in the Committee’s findings 193. Order 57 of the Dáil Éireann Standing Orders relative to Public Business provided at the relevant time (it has since been amended to Order 59 in the 2016 Standing Orders): 67 “Subject always to the right of Dáil Éireann to legislate on any matter (and any guidelines which may be drawn up by the Committee on Procedure and Privileges from time to time), and unless otherwise precluded under Standing Orders, a member shall not be prevented from raising in the Dáil any matter of general public importance, even where court proceedings have been initiated: Provided that— (1) the matter raised shall be clearly related to public policy; (2) a matter may not be raised where it relates to a case where notice has been served and which is to be heard before a jury or is then being heard before a jury; (3) a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal; (4) members may only raise matters in a substantive manner (i.e. by way of Parliamentary Question, matter raised under Standing Order 21 4 , motion, etc.) where due notice is required; and (5) when permission to raise a matter has been granted, there will continue to be an onus on members to avoid, if at all 4 This refers to short statements/questions which are sometimes referred to as ‘Matters on the Adjournment’. What was then Standing Order 21(4) (now 23(4)) provides: “The Ceann Comhairle shall select four matters upon which the member concerned may make a five minute speech and shall advise the Dáil of the total number of matters received, the matters selected and, in the case of those selected, the member concerned after Questions each day. In each case a member of the Government or Minister of State shall be entitled to not more than five minutes for a speech in reply. The matters selected must relate to public affairs connected with a Department of State or to matters of administration for which a member of the Government or Minister of State is officially responsible (including bodies under the aegis of a Department of State in respect of Government policy).” 68 possible, comment which might in effect prejudice the outcome of proceedings.” 194. Given that an order of another branch of government had, on any view, been interfered with, respect for the separation of powers required that the Committee of its own motion investigate and ensure that the Standing Order had been complied with. Here, however, it only acted on foot of a complaint. The complaint was broad in its terms, and include an allegation that parliamentary privilege had been abused, including by undermining the Court order (see e.g. William Fry’s letter of 29 May 2015). 195. It is submitted that it is manifest from any reading of the utterances of Deputies Murphy and Doherty that the utterances were not, and could not have been, in compliance with Standing Order 57. 196. This is so for a very basic and clear reason. The relevant utterances were made in the course of debates on inter alia legislation. As such they were not raised by way of parliamentary question, under what was then Standing Order 21, or by way of motion as required by Order 57(4). Thus, they simply could not have satisfied the cumulative conditions pursuant to which Standing Order 57 permits Deputies to raise in the Dáil matters in respect of which “court proceedings have been initiated”. Notwithstanding this very clear breach of the Standing Order, the committee gave both Deputies a ‘clear pass’. 197. The requirement to only raise court proceedings in the Houses by way of motion, question or pre-submitted Order 21 application, is not some mere point of formalism; it is in fact fundamental. It is tied to another cumulative condition in Order 57(5) which was also breached here, namely a requirement that “permission to raise a matter … [be] granted”. However, if (as occurred here) the Deputies refer to matters which are sub judice in the course of a debate on legislation and/or seemingly without any “due notice”, not only has “permission” not been 69 granted, but they can take the Ceann Comhairle and everyone else by surprise and better secure themselves against any policing of the procedures of the House. 198. Here in respect of only one of Deputy Murphy’s speeches did the (Acting) Chair intervene, and only then to state that she must not mention names, a comment which was also made to the speaker who followed (Deputy Kelleher) who did not reveal any information covered by court order. The transcript reveals that, even then, Deputy Murphy entirely ignored the Chair’s (extremely minor) comments. 199. There are all sorts of ways in which respect for the orders of the Court could be properly protected if due notice was given – for example, by requesting an amendment or, if such were refused, by simply not calling upon the Deputy to ask their question or put their motion, and moving on to other business instead. 200. If, as occurred here, comment on matters sub judice was made without due notice and during the course of a debate, one would expect the Committee to intervene with appropriately dissuasive sanctions, or (at the very minimum) to clarify to the Deputies concerned and all Deputies, that it must not happen again. Instead, and bizarrely, the opposite has occurred here. The entirely inappropriate approach of Deputies Murphy and Doherty, which very clearly infringes Order 57 on its face, now appears to have been validated by the determinations of the Committee. A precedent has been set. As such, it is submitted that the instant scenario is entirely distinct and there is a necessity and importance for this Court to intervene by granting declaratory relief. 201. In addition, there can be no doubt but that the utterances infringed the second element of Standing Order 57(5) (i.e. in addition to the requirement of “permission”), namely to avoid “comment which might in effect prejudice the outcome of proceedings”. In fact, there was no scope for any “might” about it, as it must have been known and intended that 70 the interventions would have the effect of negating important aspects of the court’s order, thereby prejudicing proceedings. The Plaintiff does not accept the Committee’s consideration of the “good faith” and responsibility of the deputies is even a relevant consideration. However, there was in any event no evidence for the Committee’s determination that the Deputies acted “responsibly” and “in good faith”. 202. The position of the Committee on the Plaintiff’s application for discovery as set out in the Affidavit sworn on its behalf by Peter Finnegan, Clerk of Dáil Éireann on 22 January 2016 shows at paragraph 15 that the Committee did not invite or receive any submissions from Deputies Murphy and Doherty. 203. It is thus simply not apparent how the Committee could possibly have properly come to this determination. The Committee did not correspond with the members or seek their submissions. It is not apparent that the Committee gave any weight to the subject matter of the debates in the course of which interventions were made or properly had regard to the parameters of Standing Order 57 or do any of this. If a similar decision had been reached by an administrative body it is submitted that it would achieve the rare distinction of being unreasonable in the sense of O’Keeffe v An Bord Pleanála [1993] 1 IR 39 in which Finlay C.J. stated at 72: “…it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.” 204. It has already been submitted in these Submissions that case law clearly establishes that matters such as this are susceptible to review in the courts because they are acts of Oireachtas Committees affecting a non-member of the Oireachtas. 205. In addition, the Deputies’ utterances were not relevant to whether or not the Oireachtas should assent to any of the Bills or Orders which formed 71 the subject of the debates on which they purported to be speaking. Although this is particularly stark in the context of Deputy Murphy’s utterances during the debate on the sale of Aer Lingus shares, it is in fact true of each of the relevant utterances. Conclusion 206. For the reasons set out and the reasons to be offered, it is respectfully submitted that this Honourable Court should grant the relief sought by the Plaintiff. FRANCIS KIERAN BL DARREN LEHANE BL EILEEN BARRINGTON SC MICHAEL CUSH SC (22,286 words, inc chronology) 72 APPENDIX: CHRONOLOGY [This chronology was served on the Defendants in tandem with the Written Submissions and confirmation is awaited as to whether it can be agreed] 30 April 2015 - Plaintiff issued proceedings against RTE seeking injunctive relief and granted short service of Motion seeking inter alia injunction restraining RTÉ from publishing confidential information tending to identify or relating to his personal banking arrangements with IBRC. Motion adjourned to 12 May 2015. 6 May 2015 - Catherine Murphy TD published details of the Plaintiff’s confidential private and personal banking arrangements with IBRC during the course of Dáil debate on a Private Members Motion on the Sale of Siteserv. 12-15 May 2015 - Plaintiff’s Motion heard by Binchy J. 12 May 2015 - Order made on first day of the hearing restricting reporting of Plaintiff’s personal confidential banking arrangements (other than the matters that Deputy Murphy had already uttered on 6 May 2015). 20 May 2015 - Plaintiff wrote to Ceann Comhairle re 6 May 2015 comments of Deputy Murphy. 21 May 2015 - High Court granted Plaintiff the injunctive relief sought. 21 May 2015 - Deputy Murphy issued statement on her website and on Twitter. 25 May 2015 - Ceann Comhairle replied to the plaintiff's letter of 20 May advising that Standing Order 59 was relevant and that the matter was being referred to the Clerk of the Committee on Procedure and Privileges (CPP). 27 May 2015 - Deputy Murphy published further details of the Plaintiff’s confidential private and personal banking arrangements with IBRC during her contribution to a motion in Dáil Éireann on the disposal of shares in Aer Lingus. 28 May 2015 - Deputy Murphy published further details of the Plaintiff’s confidential private and personal banking arrangements with IBRC during the debate on the Comptroller and Auditor General (Amendment) Bill 2015 in Dáil Éireann (and on Twitter). 73 28 May 2015 - Plaintiff’s solicitors wrote to Ceann Comhairle complaining about Deputy Murphy’s breaches of the terms of the injunction on 27 and 28 May 2015. 29 May 2015 - Plaintiff’s solicitors wrote again to the Ceann Comhairle and the Leas-Cheann Comhairle. 2 June 2015 – High Court varied the terms of the Order of 21 May 2015 so as to exclude the content of the disclosures made by Deputy Murphy in the Dáil on 27 and 28 May 2015. 2 June 2015 - RTÉ issued a Notice of Motion seeking, inter alia, a determination as to whether it could publish certain information in respect of the Plaintiff’s personal banking arrangements and, in the alternative, an Order discharging the injunction made on 21 May 2015. 9 June 2015 - Deputy Pearse Doherty made certain utterances publishing details of the Plaintiff’s confidential private and personal banking arrangements with IBRC during a Dáil speech on the Draft Commission of Investigation (Certain Matters Concerning Transactions Entered into by IBRC) Order 2015. 10 June 2015 - Dáil CPP concluded that Deputy Murphy had not abused parliamentary privilege. 10 June 2015 – High Court further varied the terms of the Order of 21 May 2015 so as to exclude the content of the disclosures made by Deputy Doherty in the Dáil on 9 June 2015. 15 June 2015 - Plaintiff’s solicitors wrote to Ceann Comhairle. 15 June 2015 – Letter from Clerk to the CPP re Deputy Murphy determination. 16 June 2015 – Plenary Summons in the within proceedings issued. 17 June 2015 - High Court varied the Order of 21 May 2015 but refused RTÉ’s application for discharge of the interlocutory injunction. 74 17 June 2015 - Acting Clerk of Dáil Éireann wrote to the Plaintiff’s solicitors reiterating the findings outlined in the letter of 15 June 2015 and advised that the utterances of Deputy Doherty had been referred to the CPP for its consideration. 25 June 2015 – Statement of Claim delivered. 1 July 2015 - CPP met to consider the utterances of Deputy Doherty on 1 July 2015. 3 July 2015 - Clerk to the CPP wrote to the Plaintiff’s solicitors notifying them that the CPP had determined at its meeting on 1 July 2015 that the utterances of Deputy Doherty on 9 June 2015 in the Dáil did not contravene Standing Order 57. 14 July 2015 – Amended Plenary Summons and Amended Statement of Claim delivered. 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