Sometimes constitutional law has an ironic effect and one that perhaps goes against the intuitions of lawyers. It prevents one arm of government from doing justice in order to allow another arm of government to do its job well.
In the High Court ruling in Angela Kerins's case handed down earlier this week, we see this effect in practice.
Denis O'Brien's lawyers will no doubt have noticed the judgment rejecting Kerins's application for damages against the Oireachtas for comments made about her in the Public Accounts Committee (PAC), and they won't have been too enamoured.
The main constitutional principle that prompted the outcome in Kerins’s case concerns parliamentary privilege: that TDs are not amenable to any court for any “utterances” they make in parliament (article 15.13).
The principle was not thoughtlessly adopted by those who framed the Constitution, nor is it in any sense arbitrary.
In fact, it is concerned with promoting the goal of non-arbitrary government.
The Oireachtas has two distinctly important roles: 1) to make those who wield public power answerable for how they exercise it and 2) to make laws for the State.
And the constitutional norm at issue is concerned with ensuring that parliamentarians are not constrained in how they go about these tasks by fear of court sanction.
Kerins was chief executive of the Rehab Group, a registered charity that receives a great deal of taxpayers' money.
Following all kinds of public disquiet about the charity sector, she was invited to attend the PAC in early 2014.
For various reasons, she was not under an obligation to attend – and the Oireachtas did not compel her to do so.
But she did attend, and she was subjected to what she deemed to have been unfair treatment: members of the PAC asked her questions about her pension arrangements despite not having given her advance notice that they would do so; it was suggested to her that she was “grossly overpaid”, that she ran Rehab “like a personal fiefdom”, and so on.
So the Kerins case was an application for declarations including that the PAC’s activities had been unlawful and tainted by bias.
Critical distinction
She was unsuccessful in large part because of what the judges deemed a critical distinction between her case and that of the several gardaí who brought an action against the so-called Abbeylara Oireachtas inquiry – concerning the shooting dead of John Carthy at Abbeylara in 2000, and leading to the infamous Abbeylara judgment.
In that instance, those whose reputations were on the line had been compelled to attend.
This tended to render that inquiry "adjudicative" as far as the then Supreme Court judges were concerned: it took on powers associated with courts.
It also brought the question of jurisdiction into play: did the Abbeylara Oireachtas inquiry have the power in law to compel the witnesses?
Kerins’s case was different insofar as she could have refused to show up to the PAC without any fear of legal sanction.
Or she could have simply upped and left the Committee as it proceeded.
Thus, since the parliamentarians had not exercised any of their computability powers, the judges could hardly subsequently rule that they had breached those powers.
In addition, the Abbeylara inquiry purported to make findings against individuals, potentially including a finding of unlawful killing.
Kerins’s case did not involve an inquiry set up to investigate her conduct and it did not purport to make any “finding” against her, or so the High Court concluded.
Wielding power
But aside from this, and perhaps more fundamentally, the Kerins case concerned that broader constitutional principle concerning parliamentary privilege.
In referencing article 9 of the English Bill of Rights 1689 in his High Court judgment as "one of the forbears of article 15", Justice Peter Kelly invoked the notion that the constitutional norms that were at stake are part of a range of mechanisms aimed at promoting parliamentary autonomy so as to rein in arbitrary power.
They ensure that any individual or group that wields great power – perhaps financial power (combined with a litigious inclination perhaps) – can less easily lord it over parliamentarians, eyeballing them so as to not ask questions they might not want asked.
It is, of course, no less damaging to an individual to be defamed in the Oireachtas than in any other forum, but, such is that critical constitutional norm, judges cannot even consider whether defamation has occurred there.
This is not an arbitrary concession to injustice rather it is premised on the notion that the right of one citizen against defamation cannot trump the value of non-dominated parliamentary debate for all citizens.
Tom Hickey lectures at the School of Law and Government, Dublin City University