The Morris tribunal has appealed to the Supreme Court against a High Court decision, which quashed an order of the tribunal directing Labour Party deputy Brendan Howlin to hand over documents that he had received relating to allegations of Garda impropriety.
The tribunal was established in March 2002 with terms of reference directing it to inquire into certain matters, including allegations contained in information received by Mr Howlin on June 25th, 2000, that two senior gardaí may have acted with impropriety.
In February 2003, the tribunal made an order for the production of the information in Mr Howlin's possession. It claimed its work had been "gravely hampered" because of its inability to establish the nature and source of the information.
Later in 2003, however, the High Court quashed the order directing Mr Howlin to hand over documents. A legal challenge to a similar tribunal order requiring Fine Gael senator Jim Higgins to hand over certain phone records did not proceed. The records were sought by the tribunal to try to establish the source of confidential material faxed on June 25th, 2000, to Mr Higgins, which contained allegations suggesting the Carty Garda inquiry into alleged corrupt activities by some gardaí in Co Donegal had been compromised.
After counsel for the tribunal told the High Court that Frank McBrearty had told the tribunal he was the source of some information faxed to Mr Higgins, the senator's application did not proceed. Presenting the tribunal's Supreme Court appeal yesterday, Maurice Collins SC said the High Court had accepted that Article 15.10 of the Constitution was applicable in Mr Howlin's case and that the effect of this provision was to confer an absolute privilege on the information in Mr Howlin's possession.
At the heart of the tribunal's appeal was the reference in Article 15.10 to the "power" of Houses of the Oireachtas "to protect . . . the private papers of its members", counsel said. The issue was whether the High Court was correct in holding Article 15.10 applied in relation to the documents sought by the tribunal and gave the documents absolute privilege from production.
Mr Collins argued the power to protect private papers as conferred by Article 15.10 did not extend to conferring absolute privilege. At most, he submitted, it extended to creating "qualified privilege".
The Supreme Court had, on many occasions, emphasised the public importance of and the public interest in the effective function of tribunals of inquiry.
The tribunal believed it was wrong to characterise the matters at issue as internal matters concerning Oireachtas members.
Article 15.10 was in the nature of qualified privilege only. Such privilege protected the position of members while also permitting the accommodation of other compelling interests, such as the administration of justice or the due discharge by the tribunal of its statutory functions. Private papers of members might be the subject of an order for discovery where the disclosure of such papers would be in the public interest, he submitted.
The hearing before the five- judge Supreme Court, presided over by the Chief Justice, Mr Justice John Murray, continues today.