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Howlin -v- Morris
Neutral Citation:
[2005] IESC 85
Supreme Court Record Number:
121 & 139/04
High Court Record Number:
2003 223 JR
Date of Delivery:
Supreme Court
Composition of Court:
Murray C.J., Denham J., Mc Guinness J., Hardiman J., Geoghegan J.
Judgment by:
Geoghegan J.
Allow Appeal and Set Aside High Court Order, Dismiss Cross Appeal
Judgments by
Link to Judgment
Geoghegan J.
Murray C.J., Denham J.
Hardiman J.
Mc Guinness J.

121 & 139/04
Murray C.J.
Denham J.
McGuinness J.
Hardiman J.
Geoghegan J.
Notice Parties

JUDGMENT of Mr. Justice Geoghegan delivered 20th December 2005

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

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

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

    “10. Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

    12. All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

    13. The members of each House of the Oireachtas shall, 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.”

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

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

6. This issue was argued again in the judicial review proceedings in the High Court before Kearns J. from whose order this appeal has been brought. Kearns J. took the same view as the Sole Member in relation to the argument based on Article 15.13. He made it quite clear that in his view that provision could not be invoked unless the information had first been uttered in the Dáil which it had not been. It is perhaps appropriate at this stage to state firmly that I am in complete agreement with the views on this matter expressed by the Sole Member and upheld by Kearns J. and there is nothing which I can usefully add except to make clear that in arriving at this view, I am fully taking into account the arguments put forward by counsel for Mr. Howlin that anomalous situations could be perceived to arise from such a view.

7. The Sole Member went on to deal with the much more difficult question of whether privilege could be claimed under Article 15.10.

8. On this issue a number of separate questions might have to be considered. In particular I would identify the following.

    “1. Does Article 15.10 create a self-executing privilege?

    2. If so, is it an absolute privilege and, if not, what are the limitations?

    3. In relation to so called ‘private papers’ is the privilege the privilege of the House or the privilege of the deputy or of both?

    4. If the said provision does not create a self-executing privilege does it permit the House to bring such a privilege into existence and if so what are the answers to the questions in relation to the nature of such a privilege as already set out above?.

    5. If any privilege in relation to private paper has to be established by the House what are the formalities required?

9. The Sole Member dealt with these matters in the following way. First of all he had no difficulty in holding that the documents sought including the telephone records were “private papers” of the deputy within the meaning of Article 15.10. This appeal has to be approached in my view on the assumption that that finding is correct and at any rate I would see no reason to dispute it. I mention this because an issue as to whether the telephone records should be included within the category of private papers was raised in written submissions on behalf of the tribunal notwithstanding that finding by the Sole Member. I do not propose to deal with the matter further. The approach of the Sole Member is best explained by quoting in full the relevant part of his finding which reads as follows:

    “As already indicated, I am satisfied that the material in question constitutes ‘private papers’ for the purposes of Article 15.10 because they directly relate to communications made by members of the public to members of Dáil Éireann in connection with their work as members of Dáil Éireann. A question may arise as to whether the power conferred on Dáil Éireann and Seanad Éireann and delegated to their respective committees merely extends to safeguarding the private papers of members within the confines of the Houses of the Oireachtas or alternatively is an enabling power whereby the committees may render the private papers of members immune from discovery and production by declaring them to be so (see Goodman v. Hamilton (No. 1) [1992] I.R. 542.

    Counsel for the committees submits that the enabling power to protect the private papers of its members conferred on Dáil Éireann and Seanad Éireann which has been delegated to their respective committees, may be exercised by them by an assertion of that power. He submits that by instructing him to attend before the tribunal and to make submissions to the tribunal, the committees have validly exercised that power and that each committee, and accordingly the Oireachtas, has to exercise the constitutional power given to it to extend privilege to the material sought to be discovered in this application.

    I am satisfied that the material in question, namely, the documentation which would be generated by the machinery of Eircom Limited, would disclose the number of the caller/recipient who were in contact with the respondents on the 25th June 2000 and subsequently, constitute ‘private papers’ for the purposes of Article 15 of the Constitution on the grounds that they directly relate to communications made by members of the public to members of Dáil Éireann in connection with their work as members of Dáil Éireann. Assuming that this material could by the proper exercise of a power conferred on the Oireachtas by Article 15.10 of the Constitution be designated privileged and rendered immune from an order for discovery, the issue remains, in my opinion whether the power has in fact been exercised.

    I am satisfied that there was a lawful delegation of this power by Dáil Éireann and Seanad Éireann to their respective committees on procedure and privileges by the resolution of the 6th July, 2001. However, in my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the committee to that express intent. No such motion was ever passed. The only relevant motion was that to which reference has already been made. This does not contain a purported exercise of the power and merely authorises counsel to seek representation and to ‘make submission’ to the tribunal concerning the powers and privileges.

    Accordingly, I am satisfied that while the power may be vested in the respective committees to extend privilege to the ‘private papers’ of members this power has not been exercised.

    Accordingly, I am of the view that no case has been made out that privilege has been extended to the documents which are the subject matter of this application.”

10. The Sole Member went on to hold that even if he was wrong in that determination there was a more compelling reason why even if such privilege did exist the exercise of it should not be permitted in this instance. That reason was based upon the principle of the so called “innocence at stake exception”. The Sole Member drew attention to DPP v. Special Criminal Court 1 I.R. 60 in which O’Flaherty J. delivering the judgment of The Supreme Court adopted the words of Esher M.R. in Marks v. Beyfus (1890) 25 Q.B.D. 494 at 498 when he said:

    “If upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to show the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.”

11. The Sole Member further pointed out that this important exception had been recognised in Breathnach v. Ireland (No. 3) [1993] 2 I.R. 458, The Director of Consumer Affairs and Fair Trade v. Sugar Distributors Limited [1991] 1 I.R. 225 and by The Supreme Court in Skeffington v. Rooney and Others [1997] 1 I.R. 22. He went on to point out that the confidential information given to Mr. Howlin included an allegation that a number of people had been convicted by “planting” evidence and “trumped up” evidence and that the evidence that was planted was “stolen property”. The Sole Member expressed the view that if innocent people had been prosecuted and convicted on the basis of unlawfully obtained evidence and perjury but served or were serving sentences of imprisonment as a result it was imperative that such information be made available to the tribunal on the principle of the “innocence at stake exception”.

12. Finally, the Sole Member went on to endorse a view I had taken as a judge in the High Court in Goodman International v. Hamilton (No. 3) [1993] 3 I.R. 320. In that case I had adopted the view of the House of Lords in D. v. NSPCC [1978] A.C. 171 and in particular the views expressed in the speech of Lord Edmund-Davies that where there was a clash between the undoubted public interest in the admissibility in court of all relevant and admissible evidence and the public interest in a particular instance in the non-disclosure of some particular piece of such evidence the court had to embark on a balancing exercise so as to consider whether the public interest was in the end best served by disclosure or non-disclosure. In doing so, I was adopting a common law principle rather than invoking any particular provision of the Constitution. It is not entirely clear from the determination of the Sole Member as to whether he was likewise as an alternative taking on board common law principles or whether he was in some way intending to incorporate the balancing principle into any privilege which might exist under Article 15.10. Nothing turns on this question however in my view. What is important to note is that the Sole Member went on to make a contingent exercise of the discretion referred to by me and in so doing he said that he had no doubt whatever that it was preferable that information which was available to two responsible members of the Oireachtas from individuals believed by them to be reliable and which indicated gross misconduct amounting to criminal misconduct on the part of two assistant commissioners of An Garda Síochána and one detective sergeant should be made available for scrutiny and examination by the tribunal rather than that Deputy Howlin and Senator Higgins be allowed to maintain the confidentiality of their informants. He again noted that the information or evidence made available to the informant(s) might prove or tend to prove the innocence of individuals who had been wrongly convicted. He then expressed the view in no uncertain terms that it would be “entirely wrong” if such information or evidence could be withheld from the tribunal and that its truth could not be inquired into by him in carrying out his duties under the terms of reference.

13. I have summarised the findings of the Sole Member. Before I move on to what happened in the High Court, I should explain briefly the references to Senator Higgins and to the Seanad. Originally, the same issue arose with Senator Higgins as arose with Mr. Howlin. Subsequently, Senator Higgins’s informant gave him permission to disclose his source and as a consequence he no longer became involved in these proceedings. The equivalent Seanad committee had passed an identical resolution and had given identical instructions to the same counsel.

14. Leave to seek judicial review of the discovery order made by the Sole Member was granted in the High Court by O’Neill J. on the 24th March 2003. The reliefs permitted to be sought included certiorari in respect of the discovery order and a large number of declaratory orders reflecting the issues which had been argued before the Sole Member. By way of permitted amendment to the statement of grounds one of the issues raised in the judicial review was whether the Sole Member erred in law in holding that the innocence at stake exception had any application to a tribunal of inquiry and that he had at any rate erred in law in holding that disclosure of sources was necessary to vindicate the rights of members of the Garda Síochána and erred on the facts in relying on speculation and/or hearsay to outweigh the proved or admitted fact of the benefit to the public interest in preserving confidentiality of such sources.

15. I have already made clear that when the judicial review proceeding came on for hearing before Kearns J. he rejected the arguments of Mr. Howlin based on Article 15.13 for the reasons which I have already indicated. The learned judge, however, took a very different view from that taken by the Sole Member when he came to consider Article 15.10. He disagreed with the Sole Member that the assertion of the privilege by counsel instructed by the committees did not constitute the exercise of the power of the respective Houses to protect the private papers of their members. Kearns J. referred to the alleged requirement to pass a formal motion as suggested by the Sole Member as merely a “mechanical requirement” and the learned judge later referred to “a minor technical infirmity” in the wording of the motion of the 6th February, 2002. That motion passed in each House had been in the following terms:

    “That the Committee on Procedure and Privileges of Dáil Éireann (Seanad Éireann):

    Noting Article 15 of the Constitution,

    Noting the privilege enjoyed by members of Dáil Éireann (Seanad Éireann) in respect of information received from members of the public,

    Noting the assertion of privilege made by Deputy Howlin (Senator Higgins) before the tribunal known as the Tribunal of Inquiry into Complaints concerning some gardaí of the Donegal Division,

    hereby authorises the Parliamentary Legal Adviser to instruct on behalf of Dáil Éireann (Seanad Éireann) counsel to apply for representation at the tribunal, and if granted representation, to make submissions to the tribunal concerning the powers and privileges of Dáil Éireann and its members.”

16. I will, in due course, be expressing my own views as to the formalities required for the exercise of the powers under Article 15.10 but for the present I will continue with the procedural narrative.

17. The learned High Court judge held accordingly that the committee was lawfully exercising the power of the Dáil to protect the private papers of its members through a focused exercise of that power in relation to particular private papers of Mr. Howlin. Kearns J., however, went on to make the following important observation:

    “Apart from his apparent assumption (at p. 13 of the ruling) that the valid exercise of the power contained in Article 15.10 of the Constitution would render the material immune from an order for discovery, the respondent did not further consider the nature or extent of the power created by Article 15.10. Instead he proceeded to justify the order for discovery by reference to principles of law covering privilege at common law…

    The gravamen of the respondent’s ruling appears to me therefore, to be that even if incorrect in determining that the power under Article 15.10 had not been validly exercised, he was nonetheless entitled to treat any privilege created by Article 15.10 as a form of qualified privilege to be determined and measured by reference to common law principles.”

18. If a privilege of the kind contended for in this case may be created by the committee under Article 15.10 and if such privilege would be a form of qualified privilege, the parameters of the qualification do not fall for consideration. I cannot imagine how any argument could be put forward that those parameters would be in any way different from those applied by the House of Lords and adopted by me as mentioned above on a common law basis. The learned High Court judge, however, went on to consider what undoubtedly would be an important issue if such a privilege could be created namely, whether in fact the privilege would be an absolute one. In this connection, the judge referred first to the Parliamentary Papers Act, 1840 which conferred absolute privilege on documents published by order of the House but, as he mentions, it contained no reference to private papers. The learned judge then referred to recent English case law from which it seemed to be recognised that Article 9 of the Bill of Rights, 1688 could be given a sufficiently broad interpretation so as to render a question to a minister from a member of parliament contained in a letter and a reply from the Minister by letter to be protected by the same absolute privilege as if there had been an oral question and answer session in parliament itself. In the same connection the judgment goes on to refer to Rost v. Edwards [1990] 2 All E.R. 641 where it was held by the English Court of Appeal that a letter written by a member of the opposition sent to a member of parliament complaining of his conduct and copy to the Speaker of the House was a “proceeding in parliament” within the meaning of Article 9 and, therefore, absolutely privileged for the purposes of defamation proceedings.

19. The American law was then considered by the learned High Court judge. He referred to the Speech or Debate Clause of the U.S. Constitution which provided that member of Congress should not be “questioned in any other place” for any “speech or debate” in either House. It was pointed out that in the case of Brown v. Williamson 62 S3d 408 (DC Cir 1995) where privileged documents belonging to a tobacco company were stolen from its lawyers offices and sent to two members of Congress who were members of a committee holding hearings relating to the tobacco industry. The sub poena was secured for the delivery to the company of the documents directed toward the two members of Congress but the Court of Appeals quashed the sub poena on the basis that enforcement would violate the Speech or Debate Clause. The learned trial judge quotes the following passage from the opinion of the U.S. Court of Appeals:

    “We do not accept the proposition that the testimonial immunity of the Speech or Debate Clause only applies when members or their aides are personally questioned. Documentary evidence can certainly be as revealing as oral communications – even if only indirectly when, as here, the documents in question … do not detail specific Congressional actions. But indications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do – and this is true whether or not the documents are sought for the purpose of inquiring into of conduct or to advance some other goals …”

20. The learned High Court judge correctly observed that this development in American jurisprudence post-dated the drafting of the 1922 Constitution and in that sense might not be of any relevant assistance in the interpretation of the constitutional provision in Article 15.10.

21. Kearns J. goes on then to refer to what he regarded as an intriguing submission and one which has been relied on in written and oral submissions in this court also. In his foreword to Kohn’s book “Constitution of the Irish Free State” 1932 the then Chief Justice of the Irish Free State, Chief Justice Hugh Kennedy referred to some sources resorted to in the drafting of the 1922 Constitution and that these sources included the Constitution of the Weimar Republic in Germany brought into being in 1919. The former Chief Justice described that Constitution as “a political tour de force framed to work in contemporary conditions”. The significance of this reference is that although Articles 15.12 and 15.13 have their antecedents in the Bill of Rights, 1688 and/or the Speech or Debate Clause of the U.S. 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 1922 Constitution. Clutching at straws to some extent it has been submitted that the real antecedent may be contained in Article 38 of the Weimar Constitution which was set out in the judgment of the High Court and which reads as follows:

    “The members of the Reichstag of the Land Diets are entitled to refuse to give evidence concerning persons who have entrusted them with information in their capacity as deputies or to whom they have given information in exercising their official functions, as well as concerning these facts themselves. In respect of the seizure of documents, they have the same status as persons who enjoy a legal right to refuse to give evidence.”

22. I will return to this submission in due course. Counsel for the committee in the High Court, Mr. Clarke, S.C. submitted in that court that Article 15.10 clearly had the effect of rendering papers of members of either House “private” and he referred to their exclusion from the ambit of the Freedom of Information Act, 1997. Since the learned High Court judge has referred to both of these submissions, I must assume that he was to some extent influenced by them. I cannot agree that they are of assistance in determining the issues and I will explain why later on in the judgment.

23. With no case law to assist in the interpretation of Article 15.10 and no evidence of how Article 20 of the 1922 Constitution came to be drafted in that way, it was reasonable that the trial judge should be influenced, as he apparently was, by the views of Professor Gwynn Morgan in his Constitutional Law of Ireland (1985) at pp. 166-167. Professor Gwynn Morgan did seem to consider that “private papers” of members within the meaning of the Article could be rendered constitutionally privileged as against third parties.

24. Decisions of the European Court of Human Rights were then considered by the trial judge. These included A v. United Kingdom (judgment of 17th December, 2002). In that case the Court of Human Rights held that the English rule of parliamentary immunity was not a disproportionate restriction on convention rights of access to court. The trial judge also referred to a decision of the European Commission on Human Rights in Young v. Ireland (17th January, 1996) but that case simply upheld the immunity attaching to utterances in parliament.

25. On foot of all these submissions the learned trial judge held that in relation to “private papers” of members the House and, therefore the committee by delegation had power to render them privileged without qualification and had done so in this case. After explaining why he arrived at that decision he summed it up as follows:

    “Accordingly while the wording of Article 20 of the 1922 Constitution may well have been the somewhat imprecise outcome of an attempt to frame an express immunity drawn from the Weimar Constitution but availing of the terminology of U.K. Parliamentary practice, I am satisfied that the intent of the draftsmen was to expressly acknowledge the special status of the private papers of members and how they may be absolutely protected from production outside the House. Any strict interpretation must also however lead one to conclude that the privilege is that of the House, and not the individual member.”

26. An order was, therefore, made in the High Court quashing the Discovery order.

27. The Sole Member has appealed the decision of the High Court to this court. The notice of appeal contains thirteen grounds. For all practical purposes they cover the issues debated in the High Court and referred to by me above.

28. A notice to vary has been served on behalf of Mr. Howlin. It is claimed in this notice to vary that contrary to the findings of the learned High Court judge:

    1. Mr. Howlin is entitled to rely on the protection of Article 15.13 of the Constitution to assert a privilege.

    2. That Mr. Howlin is entitled to assert privilege under Article 15.10 irrespective of any decision in that regard by Dáil Éireann or the Committee on Procedure and Privileges and/or is entitled to a privilege pursuant to Articles 15 and 16 of the Constitution by virtue of his status as a member of the National Parliament and/or a privilege at common law.

29. Having given a procedural history of this case and summaries of what was held at each stage and of what is not at issue before this court I intend now to address the issues of law on this appeal. I have already made it clear that I am satisfied that no privilege arises under Article 15.13. As far as alleged constitutional privilege is concerned I am of opinion that it could only arise under Article 15.10 and that is the issue which I am now considering. The absence of relevant case law is unfortunate. The fact that the wording is wholly different from the provision relied on in the Constitution of the Weimar Republic makes it very dubious and, indeed, in my opinion, speculative that any reliance should be placed on that provision. Nor does there appear to be much academic assistance apart from the notable exception of Professor Gwynn Morgan. Surprisingly, the recent report of the Constitution Review Group did not attempt any analysis of what Article 15.10 meant. It would seem probable that the committee decided to leave well alone, as no serious problems had arisen from the parliamentary privilege provisions, whatever they might mean and that interpretation was better left to the courts. Interestingly, however, Article 15.10 was interpreted by the earlier committee on the Constitution as reflected in their report of December 1967. I find myself impressed by what that report had to say in relation to this provision and I think it worthwhile citing the most relevant passages in full. Paragraph 35 sets out the text of Article 15.10. Paragraph 36 then reads as follows:

    “The wording of this provision presents some difficulties and it is not easy to determine from it the nature of the powers with which it was intended to endow the Oireachtas. It will be observed first of all, that it 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. It 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. It will be noted, furthermore, that the powers given by Article 15.10 to impose penalties extend only to the rules and standing orders of each House, and there seems to be no power to punish offenders for the other matters dealt with by the section, such as the protection of each House and its members against interference, molestation and attempts to corrupt. If the Houses of the Oireachtas were intended to have penalty powers in relation to these matters, it would have been a very simple matter to draft the section on a different basis…”

30. Paragraph 39 then reads as follows:

    “Our Parliament can operate only within the confines laid down in the present Constitution, which was intended to provide the charter for all aspects of public affairs in this country. That Constitution has been very careful to outline detailed provisions about the court system to be established, the procedure for the trial of offences and the fundamental rights of the citizens, including the right to personal liberty and to freedom of expression. If it had been the intention from the beginning that the powers enjoyed by the Oireachtas were not to be restricted by any safeguards of this kind, there would surely have been a great deal more comment about the nature and effect of Parliamentary Privilege than has heretofore been the case. As already indicated, the wording of Article 15.10 itself suggests that this was not the intention.”

31. The committee’s conclusions are then summed up in paragraph 40:

    “We have, therefore, come to the conclusion that Article 15.10 ought to be regarded as empowering the Houses of the Oireachtas to deal with internal matters of procedure and discipline only, and to punish its own members for breaches of its rules; it should, of course also be open to each House to withdraw any privileges from any such persons as transgress any regulations of the House. In addition each House should have power to deal effectively with persons who endeavour to disrupt its proceedings. All other offences against Parliament and its members should in our view be dealt with by a special Act of the Oireachtas on the same lines as the legislation passed by other countries. If so desired, the Chairman of each House could be empowered to make complaints to the Attorney General requesting that particular matters be investigated with a view to prosecutions. If any amendment of Article 15.10 is required to enable these matters to be dealt with in this way, then we recommend that the change should be made.”

32. This view of Article 15.10 does not sit easily with the views expressed by Professor Gwynn Morgan as referred to above. He took the view that the power conferred by Article 15.10 on the Houses of the Oireachtas would probably enable them to resist the normal police powers of search or a court order in respect of such documents and papers. As I will be explaining, I have come to the view that the Sole Member was correct in holding that whatever powers the committee may have been given to protect the “private papers” of members those powers had not in fact been validly exercised. I will not be agreeing, however, with the view of the Sole Member that some kind of formal motion would have put the matter right. Because I am of opinion that the power had not been exercised I believe it to be unnecessary and undesirable that I form any final view as to whether “protect” encompasses privilege as against third parties in court or tribunal proceedings. I will merely say that my inclination is in favour of the view expressed by the 1967 Constitutional Committee that since there were no words included in Article 15.10 equivalent to the words included in Article 15.12 and Article 15.13 clearly indicating absolute privilege or even any express words indicating a qualified privilege, there is not nor is there the potentiality to create any constitutional privilege under Article 15.10 that can be pleaded against a third party or stranger in ordinary court proceedings or against a tribunal in tribunal proceedings.

33. Still less of course is there anything in Article 15.10 to suggest a self-executing privilege, a point which now arises out of the notice to vary. The most that can be said is that Article 15.10 does seem to assume that independently of the terms of paragraph 10 itself the freedom of debate, the protection of official documents and the protection of private papers of members were all natural to the efficiency and efficacy of a house of parliament. The main purpose of Article 15.10 is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them. The members of Dáil Éireann might have a quite different idea about how to protect the “private papers” of members than would appeal to the members of Seanad Éireann and indeed there might be good objective reasons for a different approach. Effectively, paragraph 10 is allowing each House to make its own laws in this connection. Under the ordinary law of the land, of course, either House could protect itself against trespassers or against persons trying to corrupt its members. One could envisage situations however where one member of the House might attempt to corrupt another member or where one member of a House might steal the private papers of another member or where such activities could be carried out by staff of the House. It might be desirable and indeed almost certainly would be desirable to have special provisions relating to security. Each House would have the power to deal with these matters under Article 15.10 but I fail to see that it can be read into the terms of paragraph 10 that either House could plead documentary privilege in stranger proceedings in a court or as against a public tribunal. I would, therefore, reject the “self-executing” argument.

34. I turn now to the question of why I consider that the powers of the Dáil under Article 15.10 were not exercised in a relevant manner in this case. If the only defect was one of wording in the motion as seemed to be suggested by the Sole Member then I would be in agreement with the learned High Court judge that that could be overlooked as being merely a technical defect and that in substance and in reality privilege was being claimed on the authority of the Committee by the counsel appearing. But I do not take that view. As far as I can make out from the transcript it is the Sole Member himself who introduced the concept of the formal motion. That does not seem to have been suggested by the tribunal’s own counsel, Mr. McDermott, when opening the matter before the tribunal. Mr. McDermott at p. 31 of the internal pagination of the transcript for the proceedings before the tribunal on Tuesday, February 18th 2003 is quoted as saying the following.

    “Now, there would appear, Sir, not to be any provision made by the Houses of the Oireachtas in respect of the protection of the private papers of their members. There is no legal precedent apart less to say legal authority submitted in relation to the claim made by Deputy Howlin in this matter. In respect of the powers of the Houses of the Oireachtas to protect papers, one could look into the history and perhaps examine the historical origins of Article 15(10) and go back to the Bill of Rights in which the proceedings of Parliament were to be protected back in 1689, if memory serves me correctly. In essence, what were confined … is necessary to consider here are the simple provisions in respect of an enabling power which the people have conferred on the Houses of the Oireachtas. The Houses of the Oireachtas are given the authority to enact whether through standing orders or they could do it by legislative provisions in respect of the private papers of their members. They have not done so.”

35. Then, after rejecting any idea of a self-executing privilege Mr. McDermott went on to say the following:

    “The protection to be afforded it is envisaged is one which would be protection conferred by law to be dealt with, in my respectful submission, by the Houses of the Oireachtas, by statute or standing orders. This has not been done. Simply to state or claim that private papers of members of the Dáil or Seanad must have an absolute privilege would lead to somewhat peculiar circumstances…”

36. The point I particularly want to emphasise is that Mr. McDermott, counsel for the tribunal, made no reference whatsoever to any idea of the power being exercised by a formal motion still less to any idea that it could be done by a formal ad hoc motion during the currency of the tribunal simply claiming privilege in respect of particular documents. I believe that Mr. McDermott’s opening submission to the tribunal was correct and that Article 15.10 does not envisage some kind of ad hoc exercise of a power to impose a privilege whether by a formal motion (as unfortunately ultimately suggested by the Sole Member) or otherwise. In my view, it is a misreading of Article 15.10 to suggest that it is divided into two quite separate sections, one involving the House making its own rules and standing orders and the other conferring various powers on the House. As I see it, what was envisaged was that the nature and scope of these powers would be formally enacted in rules or standing orders and they would then automatically apply in particular situations. Neither House in this instance had made any rules or standing orders relating to the private papers of its members. Accordingly, there was no entitlement for the Committee to instruct its counsel to plead any kind of privilege before the tribunal. Having regard to the view which I have taken, the issue of whether any alleged privilege is that of the House or the member does not arise. I would add this comment however. If I am wrong in the view which I have taken and if there is a privilege attaching to the “private papers” of the member within the meaning of the Article then, I would reserve my position as to whether that individual member would be entitled to raise the privilege before a court or tribunal. I am by no means convinced that he could not do so. There is a difference between the power to create the privilege in the first instance which can, of course, only be done by the House and the subsequent availing of it before a court or tribunal. I am by no means satisfied that in such a situation a member could not assert the privilege.

37. Given the overall view which I have taken on the meaning of Article 15.10 it does not seem necessary for me to review the English, American and European Court of Rights case law referred to in the High Court and this court and the nature of which I have already outlined. Even if I am wrong in the approach which I have adopted it would seem to me to be self-evident from the respective sets of facts involved in all of those cases that none of them are really of any assistance in determining the issues in this case.

38. It is appropriate that at this stage I explain why I reject as relevant the two specific submissions made by Mr. Clarke on behalf of the Committee which I refer to in the judgment of the learned High Court judge. I cannot agree that Article 15.10 had the effect of rendering papers of members of either House “private”. In my opinion, the wording of the Article simply assumes that it would be accepted that there was such a thing as “private papers of members” and that there would be a general understanding of what that meant and what it encompassed. On the general interpretation of the Article the serious question of what exactly is meant by “private papers of members” may have to be considered in a future case but in this particular case it was accepted by the tribunal that the papers including the telephone records fell within that category and I do not think that attempts to reopen that issue in the High Court or in this court are legitimate. At any rate the view that the Sole Member took on this matter could not, in my view, be impeached as being in any way irrational.

39. Mr. Clarke also referred to the exclusion of the private papers from the ambit of the Freedom of Information Act, 1997. The terms of an Act passed sixty years after Bunreacht na hÉireann and seventy-five years after the enactment of the Constitution of the Irish Free State could not possibly be availed of to assist interpretation of Article 13.10.

40. It follows from the views which I have expressed that the only kind of privilege which could conceivably have been pleaded by Mr. Howlin was the so called common law privilege. This, of course, is a misnomer because it is not “privilege” in the strict sense. Rather it is a question of public interest immunity. I have had the benefit of reading in draft the judgment of Hardiman J. and I am in complete agreement with him that the Sole Member has in fact already carried out the balancing exercise which would be involved in relation to public interest immunity and that the view which the Sole Member took on it is unassailable. I am also very much in agreement with Hardiman J. that the “innocence at stake” principle does in fact apply for the reasons which he has given.

41. The learned High Court judge did not deal with the common law issue but there does not seem to me to be any necessity whatsoever to refer the case back to the High Court so that the common law issue be dealt with there. It is always a matter of discretion for this court as to whether that course is taken or not. Obviously, if there were some facts which had to be found it would be essential. I am satisfied that the issues have been sufficiently aired in this court to entitle us to consider and determine the common law issue.

42. I would, therefore, allow the appeal and restore the order for discovery made by the tribunal. I would also dismiss the cross-appeals contained in the notice to vary.

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