The privilege afforded to speech in the Oireachtas is not conditional upon good motives or reasonable behaviour, Dáil Éireann’s lawyers have told the Supreme Court.
Paul Gallagher SC said the protection afforded to parliamentary utterances is “absolute” and “critical to the protection of democracy”.
Dáil documents cannot be discovered in court actions if their intended use is to make parliamentarians amenable for their utterances in the Houses of the Oireachtas, he added.
Mr Gallagher, representing the Dáil, was making submissions to a seven-judge Supreme Court on the second and final day of former Rehab chief executive Angela Kerins’s appeal over the High Court’s refusal to grant discovery of documents.
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She believes the records, including minutes of private and public committee meetings, will assist her in her protracted pursuit of damages over her 2014 appearance before a Public Accounts Committee (PAC) comprising Oireachtas members.
Mr Justice Alexander Owens held last July that the private documents she wants were “intimately connected” with protected speech, and Ms Kerins’s claim for damages was “not maintainable” as it calls for judgment on speech and debate by members of the Dáil.
Ms Kerins claims she was subjected to a “witch hunt” style of questioning during her seven-hour appearance before the committee in February 2014 amid controversy over her €240,000 salary. This and surrounding events caused her to become so unwell that she attempted to take her own life and resigned from her position that April, she alleges.
Her claims relating to the PAC are denied.
The Supreme Court in 2019 found that the PAC acted unlawfully as a whole by straying significantly outside its terms of reference and the terms of an invitation to Ms Kerins, which permitted questioning about her salary and the operation by Rehab of three State-funded schemes.
In ruling on the first module of her case, which did not consider the question of damages, the Supreme Court refrained from making any finding that trenched on the protected speech of the committee’s members. The second module of her claim relates to any entitlement she has to damages for alleged misfeasance in public office and an alleged breach of her rights.
Also representing the Dáil, Brian Kennedy SC told the court on Wednesday that the Oireachtas has put in place processes, since the court’s 2019 ruling in this case, enabling citizens to seek remedies for alleged wrongs caused to them by parliamentary utterances.
Mr Justice Gerard Hogan asked what remedies have been carried out by the Oireachtas specifically to provide a remedy for Ms Kerins. Mr Kennedy said nothing has occurred other than a personal apology from Ceann Comhairle Seán Ó Fearghaíl.
Eileen Barrington SC, for Ms Kerins, emphasised to the court that Mr Ó Fearghaíl specifically said he apologised in a personal capacity and not on behalf of the Dáil.
Opposing the appeal on behalf of State parties Ireland and the Attorney General, Conor Power SC said it is difficult to see how it can be proved that the PAC’s acting without jurisdiction bears upon the losses Ms Kerins alleges she suffered. Her case, he said, relies on the members’ utterances and the documents she seeks will be used to “impugn the utterances”.
Chief Justice Donal O’Donnell said the court would give its judgment at a later date.
