The Executive

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Cases

McCrystal v The Minister for Children and Youth Affairs,

The Government of Ireland, Ireland and the Attorney General [2012] IESC 53 (08 November 2012)

Judgment delivered on the 11th day of December, 2012 by Denham C.J.
This Appeal
1. This is an appeal by Mark McCrystal, the plaintiff/appellant, referred to as “the appellant”, from the judgment and order of the High Court (Kearns P.) given on the 1st November, 2012.

2. The Minister for Children and Youth Affairs, the first named defendant/respondent, is referred to as “the Minister”, and the defendants/respondents, the Minister, the Government of Ireland, Ireland and the Attorney General, are referred to collectively as “the respondents”.

3. This matter was dealt with as a matter of urgency by the High Court, as it was by this Court, because the appellant sought injunctions relevant to the referendum taking place on the 10th November, 2012.
Ruling
4. On the 8th November, 2012, this Court delivered a Ruling on this appeal. The Court concluded that it was clear that there were significant passages in the Children’s Referendum information booklet and on the website, www.childrensreferendum.ie, that did not conform to the principles enunciated in the judgment of this Court in McKenna v. An Taoiseach (No. 2 ) [1995] 2 IR 10, referred to as “the McKenna principles”. Further, that while not all of the website or the booklet were in breach of the McKenna principles, it was not appropriate for the Court to redact either because of the overall structure of the booklet and website. Accordingly, the Court granted a declaration that the respondents had acted wrongfully in expending or arranging to expend public monies on the website, booklet, and advertisements, for the purpose of promoting a particular result in the Referendum of the Thirty-First Amendment of the Constitution (Children) Bill, 2012. The Court did not consider it either appropriate or necessary to grant an injunction, as it was assumed, correctly, that the respondents would cease distributing the material. It was stated that detailed judgments would be delivered on the 11th December, 2012. This judgment gives my reasons for that ruling.
Referendum
5. On the 19th September, 2012, the Minister for the Environment, Community and Local Government established a Referendum Commission under the Referendum Act, 1998, as amended.

6. The Thirty-First Amendment of the Constitution (Children) Bill, 2012 was passed by both Houses of the Oireachtas on the 3rd October, 2012.

7. Arrangements were made for the holding of the referendum and the 10th November, 2012, was appointed polling day.

8. On the 16th October, 2012, the Referendum Commission launched its public information campaign, by establishing a website and commencing distribution of an information guide on the referendum to all homes in the State.

9. The appellant made no complaint as to the impartiality or objectivity of the efforts of the Referendum Commission to provide neutral information to the public in accordance with the statutes.

10. Separately from the Referendum Commission, the Minister also commenced an information campaign. This included a website, and, on the 19th October, 2012, the commencement of delivery of an information booklet to all homes.

11. The appellant claimed that the information campaign run by the Minister, wrongfully and in breach of the Constitution, was not confined to the neutral transmission of information, but was designed and/or intended and/or likely to promote a particular result. It was claimed that, wrongfully and in breach of the Constitution, the respondents and each of them had engaged in expending or arranging to expend public monies on promoting a particular result.
Reliefs Sought
12. The appellant sought an injunction:

(a) restraining the respondents from expending public monies on websites, booklets and/or otherwise for the purpose of promoting a particular result in the referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012.
(b) restraining the respondents from representing as information material which is of a nature designed to promote a particular result.

(d) restraining the distribution of the proposed government booklet until the determination of these proceedings and/or this motion.

13. The appellant did not seek an order restraining the holding of the referendum itself.
The High Court
14. By consent, in the High Court, it was ordered that the hearing of the motion would be the hearing of the action.

15. The High Court refused the relief sought, and ordered that the appellant pay to the respondents the costs of the proceedings when taxed and ascertained.

16.(i) The High Court (Kearns P.) delivered an ex tempore judgment on the 1st November, 2012.

(ii) The learned President considered the respondents’ website, booklet and advertisements.

(iii) The High Court noted that funds voted by the Oireachtas to the Department of Children and Youth Affairs for 2012 included €3 million in respect of expenditure on the referendum. Of this €3 million, the Minister allocated to the Referendum Commission for its statutory functions €1.9 million. The balance of €1.1 million was used by the Minister, inter alia , to design and operate a website, to design and print a booklet, to take opinion polls, and to print media advertisements.

(iv) The High Court was asked to consider whether or not the principles outlined in McKenna v. An Taoiseach (No. 2 ) [1995] 2 IR 10, referred to as ” McKenna “, had been observed by the respondents.

(v) The High Court considered the test to be applied by the Court and whether the principles established in McKenna had been breached.

(vi) Having quoted Hamilton C.J. in McKenna at p. 32, and said that that was the yardstick against which the material disseminated by the respondents in this case must be measured, the learned President stated:-

Thus, the President appeared to be adopting a test that the breach must be “something blatant and egregious”, and that “it must be something which is to be seen or found in the presentation of the proposal …”
(vii) The High Court then considered the website, booklet and advertisements. Affidavits that had been filed were referred to, and it was held:-

“While this must of course be my own personal view and others might take a different view, I do not believe on the basis of the evidence that it could ever be said that there is here what might be characterised as a clear constitutional abuse or a manifest solicitation to vote in a particular way.
I regard the [respondents’] television, radio and print media advertisements as particularly inoffensive. These ads could not be interpreted as swaying voters in any way other than encouraging voters to vote. All three advertisements contain the words ‘The Children’s Referendum on Saturday November 10th will give the people of Ireland the opportunity to decide about the place of Children in our Constitution’ and ‘It’s all about them … but it’s up to you!’. There is no objective construction of these sound bites to interpret them as advocating a Yes vote.

Having considered all of the evidence and legal arguments put before me, I am satisfied that the campaign run by the [respondents] contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum. I do not find that the [respondents’] campaign can be said to plainly favour a particular outcome so that it is unconstitutional or wrongful. I therefore refuse the various reliefs as sought by the [appellant].”

Grounds of Appeal
17. The appellant appealed to this Court on a number of grounds, including the following:-

“(i) The learned President erred in holding in effect that the need to show a ‘clear disregard’ of the Constitution meant something more than that the breach was established on the balance of probabilities; and erred in particular in holding that the breach must be ‘blatant and egregious’ and ‘not a matter which … mires the Court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government’.
(ii) The learned President erred in the use of images of children, child’s writing and so forth were permissible on the basis of describing the referendum as a ‘referendum on children’s rights’. Only Article 42A.1 refers expressly to children’s rights and sections 2 and 3 directly involve the rights of a number of other parties. The learned President erred in failing, to hold that by promoting a child’s point of view on the amendment the Government material favoured looking at the amendment from one of the many potential standpoints available, as opposed for example to a parent’s standpoint.

(iii) The learned President erred in holding that the smiling face in the O of ‘Vote’ would be taken as an encouragement to vote rather than as a subliminal message as to how voters should cast their vote.

(iv) The learned President erred in holding that images of children are neutral, simply pertaining to the subject matter of the referendum.

(v) The learned President erred in holding that the removal of the facebook ‘like’ option and the paragraph providing that the amendment underpins family support services was not significant and that the removed material was not advocacy.

(vi) The learned President erred in holding that the inaccurate inclusion of the word ‘continue’ on page 9 of the booklet is something on which ‘nothing turns’.

(vii) The learned President erred in holding that the material did not advocate a particular outcome and was ‘neutral, balanced and has the primary aim of informing the public’.

(viii) The learned President erred in holding that the advertising was inoffensive and did not sway voters.

(ix) The learned President erred in failing to hold that the respondentshad not held the scales equally between the two sides in the referendum.

(x) The learned President erred insofar as he failed to make any specific finding on a number of the complaints of the appellant including the claim of structural bias and the claim in relation to the Department’s main website dcya.gov.ie.

[…]

(xii) The learned President misdirected himself in law and upon the evidence and/or the weight and/or balance of the evidence in deciding that the appellant’s application herein should be refused.

[…]”

Decision

Issues
18. There are two primary issues in this appeal. First, a consideration of the test to be applied to trigger court intervention. Secondly, an application of the test and the McKenna principles to the material published by the Minister.
The Constitution
19. The Irish people affirmed its sovereign right to choose its own form of Government and adopted the Constitution of Ireland in 1937. The Constitution belongs to the people and may be amended only by the people. In taking part in the process to determine whether to amend the Constitution or not, the people are taking a direct role in government. The decision whether to amend the Constitution, or not, is the decision of the people alone.

20. As O’Flaherty J. noted in McKenna , at p. 43, referendums are as old as democracy itself. The referendum process was introduced in the Constitution of 1922, and was described by Dr. Leo Kohn in ” The Constitution of the Irish Free State “, at p., 238 as:-

“The introduction of the machinery of direct legislation into the structure of the Irish Constitution reflects the democratic radicalism of its framers. The records of the Constituent Assembly, indeed, throw little light on the motives underlying the innovation. The desirability, especially under Irish conditions, of an active association of the people with the function of law-making was the only argument adduced in its support; yet its place in the general design of the Constitution leaves little doubt as to its inspiration and purpose. Its model is to be found less in the older American, Australian and Swiss precedents than in the post-War Constitutions of the new Continental Republics. In the latter democratic zeal, political doctrinarism and distrust of the mechanism of parties and Parliaments had combined to produce a highly involved design of direct legislation interwoven with the fabric of representative institutions. On that elaborate pattern the Irish system was framed.”

21. The Constitution of Ireland, 1937 provides that Ireland is a democratic state. Democracy was described by Pringle J. in de Burca v. Attorney General [1976] I.R. 38 at p. 47:-
“A democracy, as I understand it, is a form of government in which the sovereign power resides in the people as a whole and is exercised by the people either directly or through their elected representatives”.
22. Pursuant to Article 6.1 of the Constitution, all powers of government, legislative, executive and judicial derive from the people. It remains the right of the people in final appeal to decide all questions of national policy, according to the requirements of the common good.
23. This case arises on the holding of a referendum. Article 46 of the Constitution provides that any provision of the Constitution may be amended in the manner provided in that Article. Article 46.2 states that every proposal for an amendment to the Constitution shall be initiated in Dáil Éireann as a Bill, and, having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the people in accordance with the law. Such a proposal, which is submitted by referendum to the decision of the people, shall be held to have been approved by the people if, having been so submitted, a majority of the votes cast at such referendum are cast in favour of its enactment.

24. Thus, the organs of government are involved in initiating a referendum. In practice, the Executive commences the process by a cabinet decision to hold a referendum. The legislature then plays a role in the process by initiating the proposal as a Bill in Dáil Éireann. The Bill is then passed, or deemed to have been passed, by both Houses of the Oireachtas. Once passed by the Oireachtas, the matter is submitted by referendum to the decision of the people. Thus, both the legislative and executive organs of State have a role in initiating the process of a referendum.

25. However, once the Amendment Bill leaves the Houses of the Oireachtas, the situation changes: the two organs of government, the executive and the legislature, have completed their role in this part of the referendum process. The situation changes from a process with the exercise of power by elected representatives in our democracy to an exercise of power directly by the people.

26. The referendum process, once the Bill has left the Houses of the Oireachtas, is not an executive or legislative function of government. It moves from a process where democracy is exercised by elected representatives to a process of direct democracy exercised by the people.

27. The judicial branch of government has a role also in the process. All powers of government are subject to the provisions of the Constitution. As Walsh J. stated in Crotty v. An Taoiseach [1987] IR 713 at p. 778:-

“It is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.”

28. In this case the appellant has brought a case before the Court submitting that there has been a breach of constitutional restraints by the respondents. Thus, it is necessary to consider the issues raised by the appellant.
Test for Intervention
29. The first issue to be determined is the identification of the correct test to be applied by the Court in determining whether or not it should intervene. In McKenna at p. 32, Hamilton C.J. stated:-

“(i) The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.
(ii) If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

(iii) The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”

[emphasis added]
30. While the High Court quoted the above statement by Hamilton C.J. in McKenna , it then diverted from that test. As quoted previously, the High Court stated that the breach must be “something blatant and egregious”. It was also stated that it must be something seen or found in the presentation. Whilst the latter is a correct analysis of the relevant principles, the test “something blatant and egregious” is not. Nor is there an analogy to be found in the test established in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, as formulated in this jurisdiction in The State (Keegan) v. Stardust Victims Compensation Tribunal [ 1986] 1 I.R. 642 and in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39. Nor is the intent of the respondents relevant. The test to be applied is as established in McKenna and is whether “… the circumstances are such as to amount to a clear disregard by the Government” of the principles stated. This is an objective test. Consequently, the High Court erred in the test it applied. I would allow the appellant’s appeal on this ground.

31. I will proceed to apply the established test, i.e . to determine whether the respondents acted in clear disregard of the McKenna principles. Therefore, the facts require to be analysed to determine whether it has been established that there was a clear disregard by the respondents of the McKenna principles.
Burden of Proof
32. The burden of proof lies on the appellant to establish, on the balance of probabilities, that, on the facts of the case, there has been a clear disregard by the respondents of the McKenna principles.

33. On the first day of legal argument on this appeal, Richard Humphries S.C., counsel for the appellant, submitted that a publicly funded government publication about the referendum must be “fair, equal and impartial”. David Hardiman S.C., for the respondents agreed that these words were appropriate. Later, it was also agreed that any such publication should be neutral, when viewed broadly. This is an appropriate statement of the McKenna principles and so these matters fall to be determined in accordance with the constitutional jurisprudence.
The McKenna Principles
34. The constitutional jurisprudence was stated in McKenna . In that case a majority of the Court (Hamilton C.J., O’Flaherty, Blayney and Denham J.J., Egan J. dissenting) held that the Government, in expending public monies in promotion of a particular result in a referendum process, was acting in breach of the Constitution. As Hamilton C.J. stated, at p. 42:-

“The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a ‘Yes’ vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State”.

35. An election process, whether it be a local election, a general election or a referendum, is not an exercise of executive power by the Government.
36. In McKenna , the majority of the Court, (Hamilton C.J., O’Flaherty J, Blayney J, Denham J.J.) wrote judgments setting out their reasons for the jurisprudence. A majority found a breach of the constitutional right to equality. There were references also to the democratic process and fair procedures.

37. From these judgments I have extracted the following principles:-

(i) The Government is entitled to campaign for a yes vote by any methods it chooses, other than by the expenditure of public funds. Such methods include writing, speaking, broadcasting, canvassing, leafleting and advertising. Some of these methods, such as writing, speaking, broadcasting on ordinarily scheduled current affairs programmes, and canvassing, are cost free. Others, such as the creation of a dedicated website, leafleting and advertising, involve expenditure. Partisan advertising, that is advertising in one way or another urging a particular result, may be carried out by any person or by an organised group or political party, including parties composing the Government of the day, but it must be done at their own expense. Any ‘information’ disseminated by the Government at public expense must be equal, fair, impartial and neutral.
(ii) The Government is entitled to campaign for the change, and the members of the Government are entitled in their personal, party or Ministerial capacity to advocate the proposed change. Government Ministers may use their State transport in relation to the referendum and may avail of the radio, television and other media to put forward their point of view. However, the Government and its members must not spend public monies in favour of one side.

The Right to Equality

(iii) The right to equality applies in the referendum process. Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens.
(iv) Spending public monies in favour of one side of a referendum puts the voting rights of one class of citizen (those in favour of change) above those of another class of citizen (those against).

(v) The public purse must not be expended to espouse a point of view which may be anathema to certain citizens, who, of necessity, have contributed to it.

The Right to a Democratic Process
(vi) There is a right to a democratic process in the holding of a referendum. It is an interference in the democratic process for the Government to spend public monies in a referendum campaign to benefit one side rather than another. The democratic process is protected by the McKenna principles.

Right to Fair Procedures
(vii) In submitting the proposed amendment to the decision of the people, the Government should observe fair procedures. The scales must be held equally between those who support and those who oppose an amendment to the Constitution.

Right to Freedom of Expression
(viii) The freedom to express opinions incorporates the corollary right that in the democratic process of free elections, public funds should not be used to fund one side of an electoral process, whether it be a referendum or a general election, to the detriment of the other side.
(ix) The Government has a right to give information, to clarify situations, to give explanations and to deal with unforeseen matters and emergencies, but in doing so, public funds should not be used to favour one side in a referendum.

38. The McKenna principles require that a publicly funded publication about a referendum must be fair, equal, impartial and neutral.
Principles Considered Elsewhere
39. The use of public funds in a referendum process has been the subject of careful consideration at international level, in other nations, and in statutory law. While the Irish jurisprudence may be found in McKenna , it is a useful exercise to consider the principles and law which have been established elsewhere.
Code of Good Practice on Referendums
40. A ” Code of Good Practice on Referendums “, referred to as “the Code”, has been adopted by the Venice Commission.

41. The European Commission for Democracy through Law, better known as “the Venice Commission”, is the Council of Europe’s advisory body on constitutional matters. The Commission was established in 1990 and it played a leading role in the adoption of constitutions which conform to the standards of Europe’s constitutional heritage. Initially conceived as a tool for emergency constitutional engineering, the Commission has become an internationally recognised independent legal think-tank. Today it contributes to the dissemination of the European constitutional heritage, based on the continent’s fundamental legal values, while continuing to provide “constitutional first-aid” to individual states. Ireland was one of 18 founding member states of the organisation when it was set up on 10th May 1990. Ireland was also one of the ten founding members of the Council of Europe, which was established on 5th May, 1949.

42. The reasons for, and the achievement of, the Code are set out in the Introduction to the European Commission for Democracy through Law (Venice Commission), Code of Good Practice on Referendums, adopted by the Council for Democratic Elections on 16th December, 2006, and the Venice Commission on the 16th and 17th March, 2007.

43. The Code includes the following:-

” 2.2. Equality of opportunity
a. Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to:

i. the referendum campaign;

ii. coverage by the media, in particular by the publicly owned media;

iii. public funding of campaign and its actors;

iv. billposting and advertising;

v. the right to demonstrate on public thoroughfares.”

44. On the issue of funding, the Code states as follows:-

” 3.4 Funding
a. The general rules on the funding of political parties and electoral campaigns must be applied to both public and private funding.

b. The use of public funds by the authorities for campaigning purposes must be prohibited .”

[Emphasis added]

45. On the matter of funding, the explanatory memorandum, which is appended to the Code, states:-

“25. There must be no use of public funds by the authorities for campaigning purposes, in order to guarantee equality of opportunity and the freedom of voters to form an opinion.”

46. Thus, it is clear that the McKenna principles are in concordance with the Code.
Other States
47. It is useful to note the approach taken in other States. There is no single way to achieve a fair and equal referendum process. States in Europe approach referendums and the requirement for equality and fairness by different routes. An example may be seen in the United Kingdom, in the Political Parties, Elections and Referendums Act, 2000, referred to as “the Act of 2000”. Under this Act there is provision for the establishment of an Electoral Commission, which, inter alia , makes provision for election and referendum campaigns and the conduct of referendums. On the issue of funding, provision is made for the payment of not more than Â£600,000 to designated organisations, on each side in a referendum process.

48. Part VII of the Act of 2000 makes provision for referendums. Section 108 provides that the Commission may designate permitted participants as organisations to which assistance is available in accordance with s. 110. Section 108(2) states that where there are only two possible outcomes in the case of a referendum the Commission may designate one permitted participant as representing those campaigning for the outcome in question, but otherwise shall not make any designation in respect of the referendum. If there are more than two possible outcomes, provision is made for designated organisations. Where the Commission has made designations then assistance is available according to s. 110. Section s. 110(2) provides that the Commission shall make to each designated organisation a grant of the same amount, which shall not exceed Â£600,000.

49. The Electoral Commission in the United Kingdom is an independent body established by Parliament to work to support a healthy democracy, where elections and referendums are based on principles of trust, participation and no undue influence. The Electoral Commission is currently considering and making proposals for the Scottish Referendum in 2014. In relation to their timetable, for example, the Commission states that it should be able to publish its views on the intelligibility of a proposed referendum question around ten weeks after receiving notice of the wording of the question. In this time it carries out public opinion research.

50. Looking further afield to Australia, s.11(4) of the Referendum (Machinery Provisions) Act, 1984 provides that the Commonwealth shall not expend money in respect of the presentation of the argument in favour of, or the argument against, a proposed law except in relation to the preparation, printing and posting of pamphlets by the Electoral Commissioner. The pamphlets set out the arguments for and the arguments against the proposal to amend the Constitution. The arguments are submitted by a majority of the members of the Parliament in favour of the proposal and a majority of the members of the Parliament against the proposal. The Electoral Commission also prepares a statement outlining the textual alterations and additions proposed to be made to the Constitution of Australia. Thus, the federal government cannot spend public monies in favour or against a proposal to amend the Constitution, save for the printing and distribution of information which presents the official yes or no sides of the argument, and the functioning of the Electoral Commission.

51. In the State of Victoria, Australia, s. 177C of the Electoral Act, 2002 is concerned with the “distribution of arguments for and against Bill to electors” regarding the amendment of the State’s Constitution Act, 1975. It mirrors the provisions of s. 11(4) of the Referendum (Machinery Provisions) Act, 1984. The public monies of the State cannot be spent in favour or against a proposal to amend the Constitution Act, 1975.
The Facts
52. Having identified the relevant law in Ireland in the McKenna principles, it is now necessary to identify the relevant facts of the case.

53. At issue in this case is the use of public funds in the publication of a booklet, website, and advertisements, by the Minister in the time between the publication of the Bill as passed by the Oireachtas and the 10th November, 2012, when the people were asked to vote on a proposed change to the Constitution.

54. The booklet, website and advertisements, on their face failed the test of being fair, equal and impartial, failed to be neutral, and failed to hold the scales equally between both sides, as may be seen by looking at the materials.

55. There was language in the materials which, on its face, favoured one side over the other. Thus, for example, on the front page of the booklet and on the home page of the website there were slogans. One of the slogans was “Protecting children”. As counsel for the appellant argued, for some who opposed the referendum, the referendum was not about protecting children, but would involve more State intervention with children, which they opposed.

56. Yet the phrase “Protecting Children” was on both the booklet and the website as follows:

Booklet

The phrase “Protecting children” could be found in the Children’s Referendum information booklet published by the Minister on the following pages:-

(i) Cover page of the booklet.
(ii) Page 1 of the booklet.

(iii) Page 6 of the booklet.

(iv) Page 14 of the booklet.

Website
The phrase “Protecting children” could be found on the Children’s Referendum website published by the Minister on the following web-pages:-

(i) In the centre of the home page of the website under the heading “What will change if the Referendum is passed?”
(ii) As the first link on the left-hand side of the home page of the website. This link continued to be visible when other web-pages were accessed by someone browsing the website.

(iii) When the second link “Protecting children” was accessed, this phrase appeared at the beginning of the web-page.

(iv) In the text written under the “Supporting Families” web-page where it stated that “[p]rotecting children and supporting families are simply two sides of the one coin”.

(v) In the text written under the “What will change if the referendum is passed?” web-page.

57. Variations of the phrase “Protecting children” could be found as follows:-

(i) A variation of the phrase appeared on the web-page “Protecting Children” by use of the phrase “Protect the child’s safety and welfare in the home”.
(ii) A variation of the phrase appeared on the web-page “Why do we need this referendum” by use of the phrase “protection of all our children”.

(iii) Another variation in the form of “[t]o protect children from abuse and neglect” appeared in the text written under the “What will change if the referendum is passed?” web-page.

(iv) There was also a similar variation under the “FAQs” web-page where the question was posed “Why is this proposed Referendum needed?”. In the text written under this, reference was made to “ensuring the protection of all of our children”.

(v) In the text written under “Don’t children already have rights under the Constitution?” reference was made to “the protection and equality of children”.

(vi) In the section which referred to “Minister Fitzgerald launches information website for Children’s Referendum” a comment on the wording of the proposed amendment was attributed to the Minister whereby she stated that “[i]t’s about protecting children from abuse and neglect”.

58. Another slogan used by the Minister in the booklet and website was “Supporting Families”. This was not impartial, fair, nor did it pass the equality test.
59. As counsel for the appellant argued, for some who opposed the referendum, the amendment did not support families, indeed, to the contrary, it was argued that the referendum was detrimental to families, as it may give rise to more State intervention in families.

60. Yet the phrase “Supporting Families” was on both the booklet and website, as follows:-

Booklet

The phrase “Supporting families” could be found in the Children’s Referendum information booklet on the following pages:

(i) Cover page of the booklet.
(ii) Page 1 of the booklet.

(iii) Page 6 of the booklet.

(iv) Page 14 of the booklet.

Website
The phrase “Supporting families” could be found on the Children’s Referendum website on the following web-pages:

(iii) When second the link “Supporting families” was accessed, this phrase appeared at the beginning of the web-page. In the text written under this it stated that “[p]rotecting children and supporting families are simply two sides of the one coin”.

(iv) In the text written under the “What will change if the referendum is passed?” web-page.

61. Variations of the phrase “Supporting families” could also be found in the section which refers to “Minister Fitzgerald launches information website for Children’s Referendum”, whereby a comment on the wording of the proposed amendment is attributed to the Minister and she stated that “[i] t’s about supporting families”.
Need
62. Another aspect of the material is also relevant. On both the booklet and website there is a question posed: “Why do we need a Referendum”? This infers a need. But, as counsel for the appellant argued, for those who opposed the amendment there was no need. The posing of this question was in effect campaigning and would not have looked out of place in information provided by a partial advocate seeking a Yes vote.

63. Yet the query “Why do we need a Referendum?” was on both the booklet and the website, as follows:-

The phrase “Why do we need a Referendum” could be found on page 2 of the Children’s Referendum information booklet. The phrase “Why do we need a Referendum” could be found on the Children’s Referendum website on the following pages:-

(i) On the home page of the website.
(ii) This was alongside a link to the word “More” which brought the reader to a web-page with the heading “Why do we need this Referendum”.

(iii) In the “FAQs” web-page the question was posed “Why is this proposed Referendum needed?”.

Children Silhouette and the word “Vote”
64. The title “Children’s Referendum” represented on both the website and the information booklet is juxtaposed with a silhouette of what appears to be three children linking hands. The “smiley face” which is represented in the letter “O” in the word “Vote” on the homepage of the website has a childish quality to it as if it were drawn by a child. The website had photographs of children, including one with the Minister.
Certainly the referendum was concerned, inter alia , with children and the respondents have submitted that these visual representations were intended simply to depict the issue with which the referendum was concerned. The appellants argued that these visual representations were designed to induce an emotional response in the reader and actually advocated for a yes vote, in a subliminal fashion rather than being neutral and objective visual representations. The images were positive of children and involved a sense of their youth and vulnerability, which, combined with, for example, the phrase, “protecting children”, was partial.

In this regard, it is noteworthy that the Referendum Commission restrained itself from depicting images of children. Its written information guide and television advertisements simply depicted a cross section of men and women of varying ages. This conveyed a clear message of Irish citizens considering the proposed amendment and how important it was to vote on polling day.
“Like” link
65. Another feature of the website was the “like” link associated with the social media website “Facebook”. This appeared on the children’s referendum website and it was removed because there was no option but to click the “like” link. This illustrated the campaigning tone of the website in favour of a yes vote and indeed it was removed by the respondents when objections were made by the appellant.
The admitted error
66. In addition, there was an admitted error. In both the High Court and in this Court, the appellant highlighted an error on page 9 of the Children’s Referendum information booklet, produced by the Minister, which was also available on the website “www.childrensreferendum.ie”.

67. In the third paragraph of page 9 of the booklet, a statement is made as to the effect the proposed amendment to the Constitution will have, and how “[k]ey requirements will continue to be as follows:” [Emphasis added]. This statement was then followed by five bullet points which provide that:-

• the State can only make use of the power ” in exceptional cases “;
• a failure of parental duty towards the child must exist – ” where the parents, regardless of their marital status, fail in their duty towards their children”;

• any failure must involve harm or risk to the child’s safety or welfare – ” to such an extent that the safety or welfare of any of their children is likely to be prejudicially affected “:

• the actions of the State must be in balance with the harm or risk to the child that needs to be addressed – ” by proportionate means “; and

• the actions the State can take must be set out in law – ” as provided by law “.

68. The appellants submitted that it was incorrect to state that these matters were a continuation of the requirements under the Constitution, rather that the second, third, fourth and fifth bullet points were new elements provided for in the amendment. It was further submitted that this was a crucial inaccuracy as a citizen who read it would be more likely to be lulled into complacency and acceptance of the proposed amendment, as compared with a citizen who was correctly informed that significant change to the language of constitutional provisions was being proposed in the amendment.
69. Counsel for the appellant submitted that this error was drawn to the attention of the respondents in the second affidavit of the appellant dated 23rd October 2012. On 1st November 2012, which was Day 2 of the High Court hearing, the respondents acknowledged that page 9 of the booklet was in error because of the use of the word “continue”. By this time, 66 per cent of all government information booklets were distributed to homes throughout the State. The learned President of the High Court gave his ex tempore decision on 1st November 2012 and in relation to page 9 of the booklet was satisfied that “…there was no deliberate attempt to distort the facts and that in reality, nothing turns on this”.

70. Notwithstanding the acceptance of the error by the respondents, by the time the appeal was heard in this Court on the 6th November, 2012, no attempt had been made by the respondents to remedy the error contained in the booklet, either in its hardcopy form or on the website. The respondents continued to distribute the booklet to homes in the State. It was not until the morning of Day 2 of the hearing of the appeal, on the 7th November, 2012, that counsel for the respondents informed the Court that the error in using the word “continue” was removed from the website. This occurred sometime between 10.30am and 11.30am.

71. In supplemental written legal submissions, which were in reply to the respondents’ oral submissions before this Court, counsel for the appellant noted that this correction was not brought to the attention of the public by way of an information notice stating that the correction had been made.

72. This was a significant error made by the respondents.
Television, radio and newspaper advertisements
73. The Minister funded the production of television, radio and newspaper advertisements.

The television advertisement in both Irish and English contained two images of a child and a group of children; two images of a male and female teenager; an image of a child with an older woman, and an image of a child with an older couple. A voiceover states that “The children’s referendum will give the people of Ireland the opportunity to decide about the place of children in our Constitution. It’s all about them. But it’s up to you”. This latter sentence appeared written on screen during the advertisement. A voiceover then gave details regarding polling day and stated that “Your vote counts”. Towards the end of the advertisement, the word “Vote” is depicted with the letter “O” characterised as a “smiley face”. Underneath this there was text stating that viewers could visit the children’s referendum website and see the information booklet delivered to their door.

The radio advertisements included voiceovers of three children, two female and one male stating their name and ages as being fourteen, nine, and three and one quarter. This was alongside the voice of an adult stating that “It’s all about them. But it’s up to you” who proceeded to give details about polling day stating that “Your vote counts”. Similarly, listeners were informed that they could visit the children’s referendum website or see the information booklet delivered to their home.

74. The appellants argued that the advertisements effectively advocated for a yes vote due to use of children’s images, the use of “smiley faces”, the use of children’s voices; and also that no image represented a family to include a parent or parents, apart from what appears to be two images of older people, perhaps depicting grandparents. The respondents replied that the advertisements were simply an encouragement to vote on an important issue.

The advertisements were clearly produced with the benefit of expert advice in the area of media communications. The breakdown of the €1.1 million spent by the Minister on various consultants is plain to see in the High Court judgment. In an event as important and solemn as a referendum, there is a need for restraint in the promotion of views paid for by public funds. This restraint was exemplified by the Referendum Commission’s advertisements. In the Minister’s advertisements when taken as a whole, they promoted a Yes vote, and were not impartial.

75. The newspaper advertisements were headed “It’s all about them…but it’s up to you!” alongside the silhouette of three children holding hands. It gave the date of polling day, included the word “Vote” wherein the letter “O” was represented by a “smiley face”, together with the statement “Your vote counts”. A statement was made to the effect that the referendum gives the people of Ireland the opportunity to decide about the place of children in our Constitution. Readers were directed to find more information on the children’s referendum website and to “Read the Department of Children and Youth Affairs booklet, which is being delivered to your home”. An image of the front page of the booklet took approximately one quarter of the space of the advertisement. The front page of the booklet carried the slogans “Protecting children” and “Supporting families”. I have already addressed the issue of those slogans.

76. While not everything in the Minister’s advertisements or indeed the information booklet and website was objectionable under the McKenna principles, it is not necessary to conduct a punctilious examination of the minutiae of each one of them. It is not the task of this Court to nit pick through every last detail of the material. We live in an age of constant marketing, public relations exercises and intense forms of modern communications, designed to induce a response in the recipient of material. In many ways it is a completely different time to that of the decision in McKenna seventeen years ago. However, one aspect remains constant. An event as important and solemn as a referendum to amend our Constitution requires that publicly funded information is fair, equal, impartial and neutral. This requirement remains as firm as ever. The cumulative effect of the matters identified in the above materials amounts to a clear disregard of the McKenna principles.
Application of the McKenna Principles
77. It is clear from the facts set out previously that the material published by the Minister, funded from public monies, breached the McKenna principles. The respondents, in expending public monies in promotion of a particular result in the referendum process were acting in breach of the Constitution. Applying the McKenna principles, as stated earlier in the judgment, from 1995, the respondents breached the principles as follows:-

(i) The Government is entitled to provide information and to campaign for a “Yes” vote, by methods other than the use of public funds. However, the booklet, website and advertisements the subject of this appeal were funded by public funds.
(ii) The Government must stop short of spending public monies in favour of one side. In this case the booklet, website and advertisements favoured one side and were funded from public monies.

(iii) Spending public monies in favour of one side of a referendum breaches the equality rights of the citizens. In this case the material published by the respondents favoured one side in the referendum.

(iv) Thus, the voting rights of one class of citizen (those in favour of change) were placed above those of another class (those against).

(v) The public purse was used to espouse a point of view anathema to some citizens, who, of necessity, had contributed to it.

(vi) There was an interference in the democratic process by the respondents spending public monies in a referendum campaign to benefit one side.

(vii) There was a breach of fair procedures, as the scales must be held equally between those who support and those who oppose an amendment to the Constitution.

(viii) The respondents used public funds to fund one side of the electoral process contrary to a fair democratic process.

(ix) The information, clarification and explanation given in the booklet, website and advertisements favoured one side in the referendum.

These principles were synthesised in legal argument before the Court, into a principle that a publicly funded publication about the referendum must be fair, equal, impartial and neutral. On the facts of the case, I am satisfied that the booklet, website and advertisements published by the Minister with the use of public funds were not fair, equal, impartial or neutral. Thus, I would allow the appeal on this second issue.
Bona fides of the Respondents
78. In written submissions to this Court, counsel for the respondents stated that the respondents believed that they complied with the decision of this Court in McKenna . It was submitted that the respondents were conscious of their obligations when drafting the disputed information, which is now the subject of this appeal.

79. In written submissions to this Court, counsel for the appellant submitted that for the purposes of the appeal there was no challenge to the proposition that the respondents endeavoured to comply with the decision of this Court in McKenna, as they understood it. Thus, the appellant did not controvert the bona fides of the respondents.

80. This appeal arises because of €1.1 million of public monies given to the Minister for the provision of information to the public in the referendum campaign.

81. The Minister was spearheading the Government campaign in the referendum process. In the circumstances, it is manifestly clear that the Minister believed that a “Yes” vote in the Referendum would be a good thing.

82. It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the Referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a “Yes” vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.

83. In all the circumstances of this case, as have appeared before the Court, I am satisfied that the respondents acted in a bona fide manner.
Public funding of information
84. In the referendum in issue in this case, the Referendum Commission was given €1.9 million for the provision of information to the public. The Referendum Commission provided neutral information in a guide, on a website, and in advertisements during the Referendum campaign. No complaint was made by the appellant as to any of the publications of the Referendum Commission.

85. The role of the Referendum Commission has been addressed in reports from recent Commissions. The Lisbon Treaty 2009 Report recommended that the Minister should consider establishing an independent body, such as the proposed Electoral Commission, which would consolidate various electoral functions, including those of the Referendum Commission. As was noted also in a previous Report, such a body would have the additional advantage of being a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.
Conclusion
86. Thus, in conclusion, I find that the appellant’s appeal should be allowed on the two issues before the Court. First, the High Court erred in the test it applied to trigger court intervention, and I would allow the appeal on that ground. Secondly, on applying the correct test to the material published by the Minister, I conclude that there was a clear disregard by the respondents of the McKenna principles. The material published by the Minister was not fair, equal, impartial or neutral. Consequently, I would allow the appeal on the second issue also.

JUDGMENT of Murray, J. delivered the 11th day of December, 2012

1. “We , the people …

“Do hereby adopt, enact and give to ourselves this Constitution”.

This is the concluding phrase of the preamble to the Constitution, which expresses the truth that the existence of our constitutional democracy, including the constitutional framework within which it functions, owes its legitimacy exclusively to the consent of the people. That constitutional framework can only be altered with the consent of the people obtained in a manner prescribed by the Constitution itself, namely, by consultation of the people in a democratic referendum.

2. Government by consent of the people has been considered as an essential tenet of democratic states since it was first fully embraced in the Constitution of the United States – a form of democracy which was then portrayed by its supporters as ‘the great experiment’ and by a sceptical elite, particularly in Europe, as a recipe for chaos. The tenet was echoed in its most rhetorical and famous form by Lincoln in his Gettysburg address when he referred to “government of the people, by the people, for the people”.

3. That tenet in our Constitution was the sub-stratum of the decision of this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, when it declared that the use of public funds to promote in a one-sided manner a particular outcome to a referendum was constitutionally impermissible.

4. Hamilton, C.J. in his judgment in that case stated:

“Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty … ‘it is the people themselves who are the guardians of the Constitution’.”

The Ruling of the Court
5. On 8th November, 2012 the Court ruled in this case that the above named respondents had “… acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial.”
6. The Court so ruled by applying the principles pronounced in the McKenna case. The website, booklet and advertisements referred to are those which were published and promoted by the Minister for Children and Youth Affairs in connection with that proposed amendment, since adopted. They were funded and paid for out of an allocation to the Minister by the Oireachtas of a sum of €1.1 million of public funds for the purposes of the referendum campaign. The appellant, who is the plaintiff in these proceedings, sought to restrain the respondents from continuing to use the material referred to on the grounds that they were in breach of the principles set out in the McKenna case. His claim was dismissed in the High Court and on appeal to this Court he obtained a ruling in his favour. Since an urgent decision of the Court was required its ruling was given on the 8th November, 2012 and it was stated that the reasons for the ruling would be given at a later date. The history and pleadings in these proceedings are amply set out in the judgment of the Chief Justice. This judgment sets out the reasons why I agreed with the ruling of the Court on that date.
The McKenna Principles
7. The McKenna principles derive from the judgments of the majority in the McKenna case. The decision in that case was taken in the context of the devolution and separation of governmental powers. Hamilton, C.J..cited the dictum of McCarthy, J. in Slattery v. An Taoiseach [1993] 1 I.R. 286 at 303:

“Article 6 proclaims that all powers of Government, legislative, executive and judicial, are derived under God from the People. In having a referendum the People are taking a direct role in Government either by amending the Constitution or refusing to amend it. Such an amendment can only be initiated by the legislature, where the relevant legislation may be promoted by any member of the legislature. When the relevant legislation has been passed by both Houses the constitutional process must continue.”
8. In Article 6.1 the people delegated the exercise of the powers of government and paragraph 2 of that article specifies:
“These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
9. The organs of State referred to are the legislative executive and judicial organs. Thus, the Government exercises executive powers conferred on it by the Constitution. Article 28.2 of the Constitution provides that:
“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”
10. In his judgment in the McKenna case Hamilton, C.J. recalls the dictum of Walsh, J. in the Crotty case where it was stated:
“It is not within the competence of the Government, or indeed the Oireachtas to free themselves from the constraints of the Constitution. … They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution. To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.”
11. Hamilton, C.J. also pointed out that the power of the courts to supervise or interfere with the exercise of executive power by the government is limited, citing FitzGerald, C.J. in Boland v. An Taoiseach [1974] I.R. 338 who stated:
‘… 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 on it by the Constitution.’
12. Having reviewed these and other dicta in previous judgments of this Court Hamilton, C.J. concluded:
“These dicta clearly establish that
1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.

2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.” (emphasis added)

13. Hamilton, C.J. went on to consider whether there had been, in the McKenna case, a clear disregard by the government of its constitutional duties in expending public funds for the purpose of promoting a campaign for a “yes” vote in the proposed referendum.
14. Hamilton, C.J. explained in the course of his judgment that ” neither the Constitution nor the Referendum Act, 1994, envisaged any role for the Government in the submission of the Bill by referendum to the decision of the People. ” He went on to conclude:

“The action of the Government in expending public funds on the promotion of such a campaign was not an action in pursuance of the executive power of the State.
Even if it were, it would still be subject to examination and review by the Court in accordance with the dicta quoted in the course of this judgment.

…

The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone.”

15. The Chief Justice concluded:
“Once the Bill has been submitted for the decision of the People, the People were and are entitled to reach their decision in a free and democratic manner.
The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a “Yes” vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.”

16. In his judgment O’Flaherty, J. pointed out that the government is entitled to spend money in providing information to the public on the implications of a constitutional amendment and indeed entitled to campaign, as are individual members of the government, for a change in the Constitution. He added that it would be ” unrealistic to expect a Government to remain neutral on a topic which it has, through its initiative, brought to the People.”
17. He added however:

“…the Government must stop short of spending public money in favour of one side which has the consequence of being to the detriment of those opposed to the constitutional amendment.
To spend money in this way breaches the equality rights of the citizen enshrined in the Constitution as well as having the effect of putting the voting rights of one class of citizen (those in favour of the change) above those of another class of citizen (those against). The public purse must not be expended to espouse a point of view which may be anathema to certain citizens who, of necessity, have contributed to it.”

18. He went on to add:
“I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy; it has elements of a plebiciary democracy) it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather than the other.”
19. Blayney, J. in his judgment noted:
“Neither the Constitution nor the Act gives any other role to the Government. And even in the matter of giving information to the electorate about the proposed amendment, the task of doing this, as appears from the terms of s.23 of the Act … is given to the two Houses of the Oireachtas and not to the Government. It is reasonable, accordingly, to infer that neither the Constitution nor the Referendum Act, 1994, envisaged that the Government, once a Bill for the amendment of the Constitution had been passed, would have any further role to play other than to submit the Bill by referendum to the decision of the People.”
20. He concluded that the government were constitutionally bound to act fairly in discharging its executive functions without ” favouring any section of the People at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally.”
21. Denham, J. agreed “…with the judgment of the Chief Justice that in expending public monies to campaign for a specific outcome to a referendum the Government are not acting within their powers under the Constitution and the law.”

22. In the course of her judgment she stated:

“The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a democracy free from governmental intercession with the process, no matter how well intentioned. No branch of the government is entitled to use taxpayers monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote.”
23. She pointed out that ” Power derives from the People, and is exercised under the Constitution through their organs of government (legislative, executive, judicial). Power and decision-making in referenda is with the People.”
Conclusion on the McKenna Principles
24. Having regard to the provisions of the Constitution and the dicta in the judgments of the majority in the McKenna case, I think it can be properly said that a referendum, by its very nature and essence, involves the people directly in the governance of the country. This is their right and it is a right enjoyed exclusively by them. It was after all, in the words of the Preamble, the people who enacted and gave unto themselves the Constitution. All sections of the community have an equal right to participate in the constitutional and political process that is engaged when a referendum is being held. Once a referendum process has been launched with the passing of the appropriate Bill, the Constitution does not envisage or confer any special role, let alone power, on any of the organs of State in that process. The spending of public funds to advocate one side to the detriment of others would distort that democratic process.

25. To place matters in context it might be well to bear in mind that both the government and members of the Oireachtas will invariably have had a major role to play in the political process leading to the passing of a Bill containing a proposal to amend the Constitution. Every such Bill is invariably preceded by an extended public and political debate, both within the Oireachtas and outside it, on whether a particular issue or question should be the subject of an amendment to the Constitution. The government and members of the Oireachtas have a public constitutional role to play in the formulation of any proposal to amend the Constitution, including the text of any such proposal. There is the legislative process that follows the initiation of any Bill containing such a proposal. Both the government and members of the Oireachtas have the opportunity to express in both Houses the views on the merits or otherwise of any such proposal and to advocate reasons why it should or should not be adopted. Extensive debates within the Houses of the Oireachtas can serve to inform the public on the issues which arise and to persuade them as to how they should vote in the event of the Bill being adopted.

26. In a subsequent political campaign neither is the Government nor members of the Oireachtas restricted in their capacity, nor should they be, to advocate one view or another concerning the merits of the proposed amendment to the Constitution. The inhibition that derives from the McKenna principles relates to the use of funds from the public purse to advocate one side of the argument to the detriment of others once the matter goes before the People for their decision.

27. Such a constitutional restriction does not mean that members of the government or of the Oireachtas are restrained from participating in a referendum campaign in their capacity as office holders, including the incidental use of facilities (such as offices and incidental services) which are available to them as office holders or elected representatives.

28. From the foregoing I would conclude that:

(a) The right to a fair and democratic referendum process is a right vested in the People as the ultimate guardians of the Constitution. Once the constitutional process of consulting the people by way of referendum has been initiated on the passing of an appropriate Bill that right must be respected.
(b) Such a right means that the use of funds from the public purse to promote one side of the referendum campaign to the detriment of the others would be in breach of that constitutional right.

29. In the course of his submissions counsel for the appellant submitted that the principles pronounced in McKenna required that any expenditure of public funds by the government for the purposes of a referendum campaign must be expended in a manner which is ‘fair, equal and impartial’. This approach was not disputed by counsel for the respondents.
30. This is the formulation agreed and applied by the Court when it concluded that the monies expended by the government on the website, booklets and advertisements in relation to the recent campaign were ” not fair, equal or impartial “.

31. That is the formulation to be applied for the purposes of examining whether any such expenditure complies with constitutional requirements.
The Onus of Proof
32. It is not in issue that the onus of establishing that the respondents acted in breach of their constitutional duties lies on the appellant, the plaintiff in this case. This in turn gives rise to the test to be applied by the Court in deciding whether grounds have been established which require the Court to intervene to protect a party from a breach of constitutional duty on the part of one of the organs of state in a case such as the present. The dissemination of information in a referendum process with use of public funds is, in itself, lawful provided it does not give rise to an unfair, impartial or unequal interference with that process. The State may use various means, including statutory mechanisms, to disseminate information concerning the matters arising in relation to a proposed amendment. The Referendum Commission is one such example. No complaint has been made concerning the manner in which the Referendum Commission exercised its functions and disseminated information in the course of the referendum in question.

33. In the High Court the learned President also dealt with this case as a matter of urgency, and delivered an ex tempore judgment. In the course of his judgment he alluded to the ” clear disregard ” test referred to by Hamilton, C.J. in McKenna . However, in assessing whether the material in this case was in breach of the government’s constitutional obligations he added:

“The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, “mires” the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government.”
34. I sympathise with the concerns of the learned President in the latter part of the passage quoted. It is not for this Court to be concerned with the merits, as such, of statements made by information officially disseminated in the course of a referendum campaign. Words and phrases are often imprecise tools however carefully crafted. Ambiguities may be unavoidable, and it may often be valid to say that something could have been better phrased. In a judicial review of the dissemination of such information the Court must take an overall view of the broad thrust and effect of the material complained of. It is not simply a question of trawling through the material so as to pick up on questionable nuances or slippages in presentation. On the other hand, objective judicial scrutiny of such material in order to determine whether, taken as a whole, it offends against the principles of fairness, impartiality and equality does not necessitate the Court in becoming enmeshed in the merits as such of the material or its minutia. Moreover, the intention of the disseminator of the information is not determinative of the outcome of such scrutiny. In the present case there is no allegation that there was any mala fides behind the dissemination of the material. On the contrary, all the evidence is that a great deal of care was exercised with a view to avoid a breach of the McKenna principles, as perceived by the compilers of the material. The issue of mala fides may only be relevant to an issue as to whether the Court should issue a mandatory order against a government (see TD v. Minister for Education & Others [2001] 4 I.R. 260).
35. However, it was submitted on behalf of the appellant that the learned President erred in adopting ” blatant and egregious ” as the test to be applied in any judicial scrutiny of the material in this case.

36. In the McKenna case Hamilton, C.J. referred to the decision of this Court in Boland v. An Taoiseach (cited above), and in particular the judgment of FitzGerald, C.J. in which he expressed the view that the courts should not 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.” He then went on to apply in that case a test of ” clear disregard “. That test is clearly consistent with the approach adopted by the other members of the majority in the McKenna case.

37. It is axiomatic to state that the Government of the day must conduct its affairs in accordance with its obligations under the Constitution. If it clearly disregards those duties then the courts are bound to intervene where this is necessary to protect the rights of others. I do not consider that the test of ” blatant and egregious ” was the correct one to be applied.

38. Accordingly, the onus in this case is on the appellant to establish that the material in question was in ” clear disregard ” of the constitutional principles referred to in the McKenna case. That is the objective test to be applied
Other Countries
39. It may be appropriate to note in passing that the principles deriving from the Constitution which ensure that the referendum process should be fair are not unique to this country. Many countries apply comparative principles, whether derived from the constitution or statute law, which prohibit, regulate or control the use of public funds in referendum campaigns with a view to guaranteeing the fairness of the referendum process within their constitutional framework. These include Australia, Austria, Spain, Portugal, Finland, Sweden, the United Kingdom and certain states in the United States, to refer to some of them. In 2006 the European Commission for Democracy through Law, otherwise known as the Venice Commission, and the Council for Democratic Elections adopted a Code of Good Practice on Referendums which included the statement that ” Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to: … public funding of campaign and its actors “. In the explanatory memorandum accompanying the code it states: ” There must be no use of public funds by the authorities for campaigning purposes, in order to guarantee equality of opportunity and the freedom of voters to form an opinion .”
The Material
40. In support of his claim the plaintiff relied upon affidavits of three witnesses. These were Mr. John Waters, the well known journalist, Miss Lyn Sheridan, an expert in public relations, and Doctor Colm Kenny, professor of communications at Dublin City University.

41. Affidavits were also filed on behalf of the respondents. These included Mr. Gerald Angley, First Secretary of the Department of Foreign Affairs & Trade, who had been temporarily assigned to the Department of Children & Youth Affairs; Miss Elizabeth Canavan, Assistant General Secretary of the Department of Children & Youth Affairs, and Doctor Eoin O’Malley, lecturer in Political Science at the School of Law and Government, Dublin City University. The respondents also relied on an affidavit from Dr. Richard Sinnott, Emeritus Professor of Political Science, University College Dublin, and Dr. Kevin Rafter, a lecturer in political communication and journalism at Dublin City University. All of these opponents provided interesting and thoughtfully expressed opinions on the material in issue. They were expressed from different perspectives and different in their analysis as to the nature and effect of the material, particularly in terms of whether it could be considered to advocate a yes vote in the referendum.

42. In certain circumstances evidence of this nature could be of vital importance, but in the circumstances of this case they constitute opinions based almost entirely an analysis of written material contained in the publications the subject of the proceedings. In this case the intended meaning of the textual material is patent. In the end the Court has to make up its own mind on the nature and import of the material itself applying the objective test referred to above.

43. In the circumstances of this case, I consider that the best evidence lies with the text of the material itself, namely, as contained in the website, the booklet and the advertisements. For the most part the material which they contain was set out in plain language. It was addressed to the public at large. In the final analysis I do not think that the opinions, interesting as they are, tendered by the various witnesses on both sides of the argument materially affect or take away from the interpretation or opinion which the Court itself is required to form on the basis of the actual text and narrative contained in those materials when objectively examined by it.

44. As substantive elements of the text of the materials in issue are extensively referred to in the judgment of the Chief Justice, and in those of my colleagues Fennelly, J. and O’Donnell, J., I do not propose to engage in further extensive recitations from the material. It may be said, however, that the material as a whole is characterised by four statements or slogans:

? Protecting children
? Supporting families

? Removing inequalities in adoption

? Recognising children in their own right

45. These slogans lead the presentation of the material both in the booklet published by the respondent and on the website established and maintained by her department. For example, they are to be found on the cover of the booklet and highlighted in response to a question posed therein ” What is proposed in this referendum?”
46. There is a considerable amount of the narrative in the texts devoted to explaining why these statements or slogans characterise the nature and purpose of the amendment. They are presented in a way that clearly conveys that if one wishes to protect children or support families, and so on, one should support the referendum proposal, and, implicitly, that to vote against it would amount to a failure to support such objectives. Again, both the booklet and the website highlight at the outset the question ” Why do we need a referendum?” conveying that there is no question but that a referendum to change the Constitution, with a positive outcome, is needed.

47. What seems clear to me from any objective examination of the published material is that it contains just one narrative. That is the narrative in support of a ‘yes’ vote without expressly calling for a ‘yes’ vote. The published material is replete with value judgments and references, both explicitly and implicitly, to desirable policy objectives which can only be properly achieved if the proposal to amend the Constitution is adopted.

48. As previously stated, it is not for the Court to pass judgment on the merits of any of the arguments or propositions contained in the material, but to determine whether it can be considered fair, equal and impartial.

49. No account is taken or expression given to the narrative of those who opposed the referendum such as those who claimed that a referendum was unnecessary, that it might compromise the protection of the family as enshrined in existing provisions of the Constitution, or disturbed the mutual rights of parents and children in a negative way.

50. None of this narrative is to be found in the material which has been called in question in these proceedings.

51. I agree with the analysis and the conclusions of my colleagues in relation to this material. As regards the images of children which have been used as a sort of logo throughout the material in question, I do not find it necessary to come to a separate or distinct conclusion. Images alone can undoubtedly be used to send a powerful message. Whether the attractive images of young children or the use of young children in advertisements conveys a clear message in favour of a yes vote is perhaps the one area in which the expert evidence, filed by way of affidavit, would be most useful. I would consider it necessary to address this question if the logo of the children was an isolated issue. But the use of representations and pictures of children cannot be separated from the textual material. Since that material itself is so clearly one-sided in its narrative of the matters which should be taken into account when deciding how to vote in the referendum, I do not consider it necessary to pronounce separately on the use of such images in that context.

52. It may be said the material is couched in restrained and measured language avoiding colourful or rhetorical exhortations. And, of course, nowhere does it expressly advocate a ‘yes’ vote. Undoubtedly, as was argued, any reasoned explanation of the reasons for proposing an amendment to the Constitution will involve reference to the subject matter of the referendum, childrens rights, and how these will be enhanced. But the criticism is not so much with the presentation of the narrative, but that it is one-sided. As O’Flaherty, J. observed in the McKenna case ” It is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government’s part to put all matters before the people; … nor, finally, is it any answer to say that it is either the entitlement or the “duty” of a Government so to educate the public. If the Government regards itself as having that right or duty, it must exercise it without resort to public funds .” Alternatively it must do so by ensuring that the ” information ” provided with public funds is not done so as to promote one side of the referendum campaign to the detriment of another.
Conclusion
53. It is manifest in my view that the website and booklet were drafted with a view to explaining why the proposed wording of the amendment was ” designed to help with policy objectives “. For example, on page 14 of booklet it is pointed out that the new wording is aimed at helping to ” achieve the following objectives ” which are identified as being:

(1) Dedicated Constitutional provisions for children;
(2) Protecting children and supporting families;

(3) Removing inequalities;

(4) Adoption: A second chance for children;

(5) Recognising children in their own right.

54. Objectively, presentations in the material of this nature can only be viewed as advocating support for the referendum proposal. Undoubtedly, these considerations were the basis on which it was decided that the particular proposal to amend the Constitution should be put to the people. It would seem that information explaining the underlying policy objectives was perceived as necessary if the electorate were to be fairly informed. If that were so, there was a misconception as to what was required by the McKenna case, namely, that fairness required impartiality and equal treatment when public funds are being used for this purpose.
55. Taking the material as a whole one is driven to the ineluctable conclusion that it advocated the case for a yes vote without explicitly calling for a yes vote. This was done, with the aid of public funds, to the disadvantage and detriment of those making the case for a ‘no’ vote.

56. For the foregoing reasons, I agree with the decision of the Court handed down on the 8th November, 2012 that the material in question was not fair, equal or impartial.
JUDGMENT of Mr. Justice Fennelly delivered the 11th day of December 2012.

1. The appeal of the appellant in this matter came before the Court on 6th November 2012, a mere four days before the date of voting on the Children Referendum. It was essential for the Court to rule on the matter as a matter of great urgency. There was no time for considered judgments. This Court, therefore, in its ruling of 8th November 2012 granted a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial.

2. On 3rd October 2012, both Houses of the Oireachtas passed the Thirty First Amendment of the Constitution (Children) Bill, 2012. On 8th October, the Minister for Environment, Community and Local Government made an order under the Referendum Act 1994 appointing 10th November as the date for voting on the Children Referendum. On 19th September 2012, the same Minister established a Referendum Commission under the Referendum Act 1998. On 16th October 2012, the Referendum Commission launched its public information campaign and established its own website.

3. The relief granted by the Court on 8th November was in substance what was claimed by the appellant in his Plenary Summons issued on 19th October 2012.

4. In the statement of claim delivered on his behalf on 19th October 2012, the appellant gave the following particulars of what he claimed were the unconstitutional aspects of the contents of the website established by the first-named respondent, the Minister for Children and Youth Affairs (hereinafter “the Minister”) as part of his information campaign for the referendum :

[Particulars in par. 14 of statement of claim]

5. The appellant caused a letter to be written to the Minister seeking information regarding the expenditure of public money. The Chief State Solicitor’s Office replied on 19th October, 2012, stating that: the “material on the website is designed to be factual in nature and put the issues to public.” The letter said: “There is no advocacy for a yes vote.” The letter also informed the plaintiff that funds voted by the Oireachtas to the Department of Children and Youth Affairs for 2012 included €3 million in respect of expenditure of the children’s rights referendum. Of this sum, the Minister had allocated €1.9 million to the Referendum Commission for the performance of its statutory functions. The balance of €1.1 million was being used by the Department of Children and Youth Affairs, as it was said, “to provide information on the referendum and encourage members of the public to vote.” That letter sets the stage. The Minister was authorised to spend public money for the purpose of providing information, but not for advocacy.

6. On 22nd October 2012, the appellant issued a notice of motion returnable in the High Court for 23rd October in which he sought an interlocutory injunction restraining the respondents from expending public monies on websites or booklets promoting a particular result in the Children Referendum.

7. In his grounding affidavit, the appellant made complaints both about the website and the booklet said to constitute the “major information campaign” of the government in connection with the Children Referendum. He complained that the campaign was not confined to the neutral transmission of information but that it was designed and/or intended and/or likely to promote a particular outcome.

8. The appellant has never questioned the impartiality or objectivity of the public information campaign of the Referendum Commission. Nor does he make any objection to the respondents arguing for a Yes vote by means which did not involve the expenditure of public monies. He alleged that the government campaign, particularly the website and booklet, went well beyond merely insignificant or incidental expenditure.

9. When the application came on before the President on 30th October, it was agreed to treat the hearing of the motion as the trial of the action.

10. The learned President delivered his judgment ex tempore on 1st November. He noted the appellant’s complaint that the government’s information campaign was unconstitutional having regard to the status of a referendum under Article 46 of the Constitution and the views expressed by this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10.

11. The learned President summarised the appellant’s complaint about the website as being that that in its totality it leaned heavily towards supporting the referendum, and was designed and intended to influence voters by favouring a particular result. He noted the complaint that it placed an emotionalised emphasis on children with numerous child pictures and child handwriting: a large caption with the title ‘Vote’ set out in child’s handwriting, with an image of a smiling face depicted in the letter ‘O.’ There was also a repeated slogan: “It’s all about them… but its up to you”; and the logo design for the website shows an image of three children holding hands in a further emotional appeal.

12. He also noted a number of complaints concerning the booklet. For example, the appellant claimed that the booklet used ‘campaigning’ type language on page 14, saying that: “the proposed new Article puts the safety and welfare of children at the centre of decision making in relation to child protection,” which was said to be value-laden and imbued with a sense of the desirability of the amendment and not to communicate any specific factual information.

13. The learned President also referred to the evidence given on affidavit of a number of witnesses. The appellant had submitted affidavits from Mr John Waters, the well-known journalist, Ms Lyn Sheridan, a public relations consultant and Professor Colum Kenny, of Dublin City University.

14. The learned President observed that, since 1998, the Referendum Commission, had “discharged effectively and well its statutory function of promoting public awareness of the referendum, of encouraging the electorate to vote at the poll and of publishing statements containing a general explanation of the subject matter of the proposal.” He added: “It operates with complete impartiality and enjoys high levels of public confidence…….”

15. The learned President next summarised the decision of Costello J., pronounced in 1992, but reported as McKenna (No. 1) [1995] 2 I.R. 1, and referred to the judgments of Keane J in the High Court and of this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10. It is particularly important to record that he took note of the care the Court took “to emphasise that before the courts will intervene in a political process, it must be “clearly established” that the Government has shown a “clear disregard” for constitutional rights.” He proceeded to interpret his own role in the instant case in the light of those and a number of other judgments as follows:

“That is the yardstick against which the material put out by the defendants in this case must be assessed. The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not be a matter which to quote counsel for the defendants, “mires” the court in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government. Such an approach would place the courts in a situation where, having entered into this particular domain, they could be called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government. I cannot believe the Supreme Court in McKenna (No.2) intended any such consequence.”
16. The learned President expressed himself “satisfied that scrupulous care has been taken to at least try to avoid falling foul of McKenna (No. 2) judgment in the information contained in the Government booklet and on its website.” He took note of the consultation process embarked upon by the Minister and the advices sought from the office of the Attorney General to ensure that the Government could impart information in compliance with the McKenna principles. He refused the reliefs sought by the appellant. His conclusion on the matter was as follows:
“Having considered all of the evidence and legal arguments put before me, I am satisfied that the campaign run by the defendants contains material which is neutral, balanced and has the primary aim of informing the public about the forthcoming referendum. I do not find that the defendant’s campaign can be said to plainly favour a particular outcome so that it is unconstitutional or wrongful.”
17. The appellant, in his appeal claims in substance that the learned President erred:
1. in his application of the test of “clear disregard” of the Constitution by substituting a test higher than the balance of probabilities, in particular in holding that the breach must be “blatant and egregious;”
2. in finding, on the evidence before the High Court, that the material did not advocate a particular outcome in the Children Referendum but that it was “neutral, balanced and has the primary aim of informing the public;”

3. in failing to find that the respondents had not held the scales equally between the two sides in the Children Referendum;

4. in failing to make findings on a number of the appellant’s specific complaints.

The McKenna principles
18. It is of the first importance to emphasise from the outset that this Court has not been invited, by either party to the appeal, to reconsider, to set aside to any extent, to re-interpret, distinguish or to qualify the decision of the Court in McKenna v. An Taoiseach (No. 2), already cited. That decision must be taken to be a fully binding part of our law regarding the conduct of referendums pursuant to the Constitution.

19. Hamilton C.J., at page 41 explained the process for amendment of the Constitution as follows:

“The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone.
“Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty v. An Taoiseach [1987] “it is the people themselves who are the guardians of the Constitution”.

“As the guardians of the Constitution and in taking a direct role in government either by amending the Constitution or by refusing to amend, the People, by virtue of the democratic nature of the State enshrined in the Constitution, are entitled to be permitted to reach their decision free from unauthorised interference by any of the organs of State that they, the People, have created by the enactment of the Constitution.

“The constitutional process to be followed in the amendment of the Constitution involves not only compliance with the provisions of Articles 46 and 47 of the Constitution and the terms of the Referendum Act, 1994, but also that regard be had for the constitutional rights of the citizens and the adoption of fair procedures.

“The use by the Government of public funds to fund a campaign designed to influence the voters in favour of a “Yes” vote is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State.”

20. O’Flaherty J said at page 43:
“I should think it bordering on the self-evident that in a democracy such as is enshrined in our Constitution (which is not exclusively a parliamentary democracy; it has elements of a plebiciary democracy) it is impermissible for the Government to spend public money in the course of a referendum campaign to benefit one side rather that the other.”
21. Blayney stated at page 49:
“……neither the provisions of the Constitution nor the provisions of the [Referendum] Act of 1994 envisage that the executive would have any role other than to submit the amendment to the decision of the People. No guidance is given as to how this role is to be carried out, but since it is a role imposed on the executive by the Constitution in connection with the very important constitutional right of the People, that is voting at a referendum, I am satisfied that constitutional justice requires that the executive should act fairly in discharging it, not favouring any section of the People at the expense of any other section. This would seem to be a minimum requirement for the discharge of any constitutional obligation. The people are entitled to be treated equally.”
22. Denham J. (as she then was) said at page 53:
“The spirit and concept of equality applies to the process of a referendum. There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum.”
At a later point she said:
“Ireland is a democratic state. The citizen is entitled under the Constitution to a democratic process. The citizen is entitled to a democracy free from governmental intercession with the process, no matter how well intentioned. No branch of the government is entitled to use taxpayers’ monies from the Central Fund to intercede with the democratic process either as to the voting process or as to the campaign prior to the vote.”
23. The basic principle underlying these dicta is that of equal treatment. The government may not use public funds in a referendum campaign to “benefit one side rather than the other,” (O’Flaherty J p. 43), “favouring any section of the People at the expense of any other section “(Blayney J, p. 49) “to advocate a specific result” (Denham J, p. 53.)
24. On the burden or level of proof required to establish that a particular government-funded campaign breached these principles, the Hamilton. C.J. referred to authority, including the judgment of Fitzgerald C.J. in Boland v An Taoiseach [1974] I.R. 338, referring to “clear disregard by the Government of the powers and duties conferred on it by the Constitution.” He described the relationship between the courts and the executive as follows at page 32:

“1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.
2. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

3. The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.

Having regard to the respect which each of the organs of government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established.”
25. The appellant must, therefore, discharge the burden which is on him by clearly establishing, as a matter of fact, that the Minister has acted in clear disregard of the restraints laid down in McKenna. While the Government or a particular Minister is perfectly entitled to advocate a particular outcome in a referendum, insofar as any campaign is paid for out of public funds, it is not permissible for the Government to favour a particular outcome.
26. It is accepted by the appellant that the Government is entitled to use public funds to provide necessary information to the People—and the respondents maintain that it’s use of the voted funds was intended to do no more than that—but it is not permissible, under the guise of an information campaign to depart from the path of strict neutrality.

The website

27. The website, opened and operated on behalf of the Minister, at the address www.childrensreferendum.ie, had a home page entitled “Children’s Referendum,” headed by the statement: “Voting Day: Saturday, 10th November 2012.” On the home page, there were some ten pages that could be opened. The headings or names of these pages were:

• Why do we need this referendum?
• What will change if the referendum is passed?

• Thirty First amendment to the Constitution (linking to the text of the amendment);

• Protecting Children;

• Supporting Families;

• Removing inequalities in adoption;

• Recognising children in their own right;

• Programme of Change for Children;

• FAQs: Frequently asked questions on the Children’s Referendum.

• Fact Sheets.

30. The following are representative passages. They are a sufficient to demonstrate the general thrust and direction of the content of the website. I quote some of the text under each of the above headings.
Why do we need this referendum?

“Our Constitution is the foundation for all the State’s laws and policies. However it does not provide an express statement of rights for children.
“The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children. The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State’s obligation , as far as practicable, to protect those rights.

………………………………………………………………….

“Passing this Referendum will put children’s needs at the centre of decision-making and will facilitate changes to adoption legislation.”

What will change if the referendum is passed?
“This Referendum proposes to place a dedicated Article in the Constitution which has children as its central focus.
“This Referendum is about strengthening the Constitution:

• To provide that the rights and protections set out in this new Article should apply equally to all children, regardless of the marital status of their parents;

• To protect children from abuse and neglect;

• To recognise children in their own right.

………………………………………….
Protecting Children

“For children at risk, this Referendum seeks to ensure that they are protected from harm.
“It sets out when and how intervention should occur, with the focus on the child, and referring to the impact of parental failure on the child’s safety and welfare, rather than solely on such failure and the reasons for it.

“Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family.”
Supporting Families
“The amendment will require State intervention in the family to be proportionate.”
……………………………………………………………..

Removing inequalities in adoption
” On the passing of this Referendum a clear standard will apply across areas of law relating to child welfare and protection and family law that the rights and protections set out are to be enjoyed by all children, irrespective of the marital status of their parents.”
Recognising children in their own right
“It will mean that provision is made by law, that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child, the best interests of the child shall be the paramount consideration.
“This Referendum proposes to change our Constitution to include a standalone article (Article 42A) on ‘ Children,’ is thus providing a strong affirmation of each individual child is inherent rights, while continuing to respect and preserve the rights of the family, as set out in the existing Article 41.

“This Referendum also proposes, for the first time to give Constitutional recognition to the best interests and views of the child in court cases affecting their life.

“This Referendum, if passed, will mean that provision May be made by law to ensure that in the resolution of all proceedings concerning the protection and welfare, adoption, guardianship, custody, and access in respect of any child that:

• the paramount consideration is the best interests of the child.

• the views and wishes of the child should be taken into account, as long as the child is sufficiently mature to make this appropriate.”

31. Under the FAQs heading, the website offers answers to a number of general questions and repeats much of the material already quoted. I will refer to only two of these.
32. The website poses the question: “What will it change?” It proposes the following answer:

“The changes that would be brought about by the proposed Constitutional Amendment include the following:
• the provision of express rights for all children;

• strengthening of protections for children where parents are failing in their duties towards them;

• the removal of inequalities in adoption between children on the basis of the marital status of their parents

• strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings.”

33. The website also poses the question: “Don’t children already have rights under the Constitution?” It provides the following answer:

“While all citizens have rights, that Constitution does not currently provide an express statement of rights for children. The proposed amendment provides a strong affirmation of each individual child is in here and rights and a clear statement that children’s rights need to be protected and vindicated; while continuing to respect and preserve the rights of the family as set out in the existing article 41.”
The booklet
34. The booklet was circulated shortly after the opening of the website. The letter of 19th October 2012 from the Chief State Solicitor said it would be circulated either on that day on the following Monday.

35. The booklet largely repeats the material on the website, if sometimes, in different language. It will suffice to refer to the answer to the question: “Why this particular Referendum?” It is as follows:

“Our Constitution is the foundation for all the State’s laws and policies.
However, it does not provide a separate statement of rights for children.
The Government is bringing forward this Referendum to give the Irish people the opportunity to make a decision on this matter. The proposed amendment is intended to give recognition to the rights of children under the Constitution and to affirm the States obligation, as far as practicable to protect those rights.

The Referendum is intended to put children’s needs at the centre of decision-making and to facilitate changes to adoption legislation.”

The booklet contained a clear significant error amounting to a misstatement of the effect of the referendum proposal. The Chief Justice and O’Donnell J. have explained this matter and its significance.

Other evidence

36. The plaintiff’s own grounding affidavits were supported by the affidavits of three independent witnesses. Mr John Waters, the well-known journalist swore that the website was “designed to put in a particular point of view in relation to the amendment, which is to say that it impliedly endorses a Yes vote and offers no sense or a hint that there may be significant or weighty contrary arguments are objections to the amendment or its wording.” His opinion was that both the website and the booklet were “riddled with value judgements, emotional and irrelevant material, one-sided presentation, omission of important balancing context, minimising or omission of difficulties and real problems of interpretation.” Ms Lyn Sheridan, an expert in Public Relations, expressed, as her professional opinion, the broad view that both the referendum and the booklet were “partial, unbalanced and persuasive of a ‘Yes’ vote.” Dr. Colum Kenny, Professor of Communications at Dublin City University, was of the opinion that the documents “not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in a referendum…….”

37. Mr Gerald Angley, First Secretary of the Department of Foreign Affairs and Trade said that he had been temporarily assigned to the Department of Children and Youth Affairs to assist with referendum arrangements. He had experience with the Stability Treaty Referendum in May 2012, which he described. He found that the Department was “conscious of the legal environment including McKenna.” While Mr Angley did not consider that the information disseminated by the Department was biased or that it advocated a particular outcome, he thought it necessary for the government to “ensure full information is available to the public on not just the constitutional amendment itself but the policy issue around it.” He added: “The government is uniquely positioned to explain the wider policy context and in my opinion has a duty to do so as I see it off the referendum in the first place.”

38. Ms Elizabeth Canavan, Assistant Secretary General of the Department Children and Youth Affairs swore an affidavit in which she provided a comprehensive and detailed account of the management of the referendum process from the point of view of her Department. She traces the background to the referendum by reference to many reports by eminent public persons and bodies going back as far as the year 1993. She describes research into behaviour and attitudes conducted at the behest of the Department and the engagement of a public relations firm to assist in the work. She identified “the need for information to be made available to the public to ensure that decisions regarding the proposed amendment would be as informed as possible and to deal with some of the issues identified as most clear to the general public and of most concern to them.”

39. Ms Canavan said that the Department had been “attentive to, and at all times mindful of the provisions of law and the Constitution and specifically the jurisprudence relating to the non-use of public resources to advocate a particular outcome in the context of a Referendum.”

40. She said that the Department had worked closely with the Office of the Attorney General. She made several references to involvement of that office: a full briefing by the Attorney General’s office was provided to senior staff, the public relations firm and the Minister’s advisers on 1st August 2012. On 3rd of October 2012 the Department sent a circular letter to all departments concerning the “implications of the McKenna case.” It referred to the previous legal advice from the Office of the Attorney General which it outlined as follows:

41. Ms Canavan described the preparation of materials for the website and for the booklet and referred to observance of a “Public Communications Protocol.” That document lays down procedures for the circulation of a wide range of publicity material, namely “press queries, articles, broadcast, twitter, events, etc” and to press releases and speeches. It does not refer either to the website or to the booklet which were, apparently, yet to be prepared. The AGO (presumably, the Attorney General’s Office) was to be included in the clearance “if required.”

42. Ms Canavan says, in her affidavit, that this protocol was followed, “always completing the cycle with sign off from the Department’s legal adviser and The Office of the Attorney General having regard to accuracy and the McKenna Judgement and by the Assistant Secretary.” In the case of the booklet she says that a “final version was prepared for consideration of legal advisors.” She adds: “Following detailed feedback from the legal side (including the Office of the Attorney General) a final draft was agreed as appropriate. This was signed off at Assistant Secretary level and provided to printers for layout and print.”

43. It is notable that this account, at no point, alleges that the website or the booklet was actually reviewed and approved by the Office of the Attorney General. The advice of that office, as very briefly summarised in the form of two brief sentences, seems correct and in accordance with the McKenna judgment. The first sentence refers to the right of the Government to give information, to clarify situations or to give explanations. The second emphasises that the government is not entitled to expend public monies for the purpose of promoting a particular outcome.

44. The respondents provided two affidavits sworn by eminent experts in political science with specialties in the area of the effects of political campaigns on the outcome of elections or referendums. Each had been asked to evaluate the website and the booklet for political neutrality. Each was fully aware of the principles of the McKenna case.

45. Dr Eoin O’Malley, lecturer in Political Science at the School of Law and Government, Dublin City University has written extensively on the electoral effects of political campaigns. In a wide-ranging consideration of the issues he made the following comments:

• in giving information about the wide-ranging legislative proposal with complex social effects one must necessarily base it upon the stated rationale for that proposal;
• if one cannot articulate the rationale of legislation then one can only restate the content;

• it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of the legislation;

• it is not reasonable to expect the sponsor to actively sterilise the subject;

• in the present instance, it is difficult and in some respects impossible to present the proposed amendment free of its inherent attractions;

46. He thus reached the conclusion that:
“In my opinion the predominant and overall impression created by the website and leaflet is that of explanation of context and the project of the amendment. If one is attracted to this, it is because of the substantive factual merits disclosed and the fact that children are the recipients. I do not see that the presentation is responsible for such an attraction or materially influences the reader.
47. Dr. Richard Sinnott, Emeritus Professor of Political Science, of the School of Politics and International Relations, University College Dublin, a renowned writer and commentator on the subject also provided an affidavit. His general comments included the following:
• “It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference… the only real and practical test is one of broad fairness : has the publication in general followed a reasonably informative line, bearing in mind the nature of the subject;
• “The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote, then the less neutral it is. This is a fallacy. The test of neutrality must I believe be primarily based on what a publication expressly professes taking into account a commonsense view of the context.”

48. Dr. Sinnott’s conclusion was:
“I do not believe that either the Department’s booklet or website show signs of being intended or having the effect of guiding or swinging voter response as a result of substance or presentation, or to the extent that this conclusion might be debated, certainly not to any extent that could be reasonably avoided in the creation of the materials in question or could be confidently said to be likely to arise.”
49. Dr Kevin Rafter, lecturer in Political Communication and journalism at Dublin City University, a former journalist of wide experience reviewed the website and booklet and made a number of criticisms, many of them on grounds of quality. The nearest he came to expressing an opinion on the issue of neutrality of content was a statement that:
“I find it hard to believe that a serious argument could be made that this design and tone was agreed with the intention of persuading people to vote “yes” in the referendum campaign.”
He thought the text of the booklet to be “an honest attempt at information provision in the context of a complicated referendum campaign.”
The appeal

50. The appellant’s case is founded on the proposition that the Constitution, as interpreted by this Court in the McKenna judgment, prevents the State from spending public money voted by the Oireachtas so as to favour one side over the other in a referendum campaign.

51. The issue before the Court on the present appeal arises in a context different from McKenna. In that case, of course, public money had been voted by Dáil Eireann, as the headnote to the report records, explicitly for the purpose of use in a publicity campaign to encourage a “Yes” vote in the referendum proposing the removal of the constitutional prohibition on divorce. The Court did not need to consider whether the actual material was designed to favour a particular result and did not do so. McKenna does not lay down any criteria for judgment as to whether a particular government campaign infringes the limits laid down in the judgments.

52. The sum of €1.1 million allocated for use by the Department of Children and Youth Affairs in the present case was intended to be used “to provide information on the referendum and encourage members of the public to vote.” This money was not provided for the declared purpose of favouring one side. The question is whether information campaign so funded does in fact advocate a particular result in the referendum.

53. Since the Department’s information campaign is funded from public monies, the only question is whether it does in fact favour one side in the campaign. Counsel for the appellant submitted that the campaign, if it was to qualify as an information campaign, had to be fair, equal and impartial. I did not understand counsel for the Minister to demur from that proposed test.

54. Counsel for the appellant next submitted that the onus of proof, which the appellant had to discharge, was in accordance with the balance of probabilities. He referred to the judgment of Barrington J in Hanafin v Minister for the Environment [1996] 2 IR 321 at page 457. What the appellant had to show was “clear disregard” by the State of the limits imposed by the Constitution. While this was the test cited by the learned President by reference to McKenna, he had fallen into error by restating “the yardstick against which the material put out by the defendants in this case must be assessed,” as requiring the appellant to show that the “breach complained of [had to] be something blatant and egregious.”

55. Counsel submitted that the Court should look at and evaluate the material itself and that it did not require the assistance of the expert witnesses. He argued that the website and the booklet was full of value judgments and slogans and that it used language amounting to open advocacy of a “yes” vote.

56. Counsel for the respondents did not dispute the authority of McKenna. He said that the burden of proof was to show on the balance of probabilities that the State had acted in clear disregard of the Constitution. As to whether the material was, in fact, fair, equal and impartial, must be tested by a reasonable and fair assessment. Children and their protection are the subject of the referendum. The government was entitled provide a public information service which amounted to an objectively fair presentation of the principal issues. The core of McKenna, counsel maintained, is that it prohibits a declared or unequivocal exhortation to vote in a particular way.

57. Counsel also invoked the inescapable normative values of the subject-matter of the referendum. Nothing can be exactly balanced. The test should be by analogy with the Wednesbury criterion, having regard to the subject-matter and to the need for the Court to avoid becoming involved in matters of political judgment. Certain subjects carry with them an inherent element of value judgement.

Conclusion

58. There is no difficulty in discerning the test which the courts apply in considering whether the State has exceeded the limits laid upon it if it is to respect the principle of neutrality in the referendum process. In common with the Chief Justice and O’Donnell J in the judgments they are delivering today, I am satisfied that the plaintiff must be able to demonstrate that the State has acted in clear disregard of its obligations. As the Chief Justice says, it is an objective test. The intention of the relevant State authority is not relevant. The test of clear disregard has been adopted by the Court in a number of cases as a guide to the circumstances in which the courts may intervene to restrain acts of the governmental organ of the State: see, for example, T.D. & Ors v The Minister for Education & Ors [2001] 4 I.R. 260, especially per Murray J at pages 336 to 337; Curtin v. Dáil Eireann [2006] 2 IR 556. More pertinently, it was adopted in the judgment of Hamilton C.J. in McKenna(No. 2), already cited:

“The courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.”
59. Proof is to be on the balance of probabilities. The learned President, however, held that the “breach complained of must be something blatant and egregious.”
60. The President was legitimately concerned at the possibility that the courts could become involved “in assessing the merits of the substantive issues or in excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government.” However, a test requiring that a breach must be shown to be something “blatant and egregious” would set a new and higher standard than that of clear disregard. It is not the standard set by Hamilton C.J. in McKenna and in a line of cases, such as Boland v An Taoiseach [1974] 1 I.R. 338. In that case, Fitzgerald C.J. said at page 362:

“…the Courts have no power, express or implied, to supervise or intervene 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.”
61. The court can, by proper application of that test, avoid the traps feared by the learned President of involving itself in the judgment of political arguments or engaging in excessive scrutiny of every scrap of government information. I share the concerns expressed by the learned President. It would be most undesirable that the courts should be “called upon in virtually every referendum to perform some exercise of hyper-zealous vigilance of every piece of information disseminated by Government.” As the Chief Justice says in her judgment, it is not necessary for the Court to conduct a punctilious examination of minutiae or to nit pick through every last detail. Such a judicial practice could equally pose a danger in future for the effective working of the Referendum Commission, which must be permitted to perform its task of assisting the people in making their voting choices, free of the threat of impending and costly litigation. Contentious litigation would not be conducive to the fair conduct of the referendum campaign and would risk distracting voters from objective consideration of the issues.
62. The question on this appeal is whether the website and/or the booklet are in their general tenor fair, equal and impartial or whether they tend to favour a “Yes” vote.

63. The website commences by asking the question: “Why do we need this referendum?” From the very outset, the material tends in one direction. It proposes to offer justification for holding the referendum. It does not ask the more neutral question: do we need this referendum? Thus, the stage is set for points to be made only in favour of the need for the referendum. The answering material suggests that the Constitution is somehow deficient in failing to contain “an express statement of rights for children” and that the referendum proposal will “give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children” and that it will “give firmer recognition to the rights of children…” This answer ends with the statement:

“Passing this Referendum will put children’s needs at the centre of decision-making and will facilitate changes to adoption legislation.”
64. These statements all point unequivocally in the direction of a “yes” vote. They are not mere information. They suggest that the Constitution will be improved by the provision of an express article designed to protect children. They do not make the point that children are already, like everyone else, protected by the Constitution.
65. Under the next heading concerning “what will change if the referendum is passed,” the reader is told of the proposal to “place a dedicated Article in the Constitution which has children as its central focus” and that the “referendum is about strengthening the Constitution.

66. Under the heading, “protecting children,” the website says that, so far as children at risk are concerned, the referendum “seeks to ensure that they are protected from harm.” It ends with the unmistakeably positive statement that:

“Overall, Article 42A focuses on the protection afforded to children under the Constitution, while respecting and preserving the rights of parents and the family.”
67. Under the FAQ which poses the question about what the referendum will change, the following very general answer is given:
“The changes that would be brought about by the proposed Constitutional Amendment include the following:
• the provision of express rights for all children;

• strengthening of protections for children where parents are failing in their duties towards them;

• the removal of inequalities in adoption between children on the basis of the marital status of their parents

• strengthening of the principles of best interests and consideration of the views of children in child care, adoption and family law proceedings.”

68. These again are all unequivocally positive points in favour of the referendum proposal. The Constitution is to be “strengthened.” So also are the protections for children. The referendum is concerned to put the best interests of children at the heart of all decision-making.
69. It is patent, in my view, that the website and booklet were written with a view to providing support for the objectives of the referendum proposal. The material is not fair, equal or impartial. It is advocacy. It is compounded by the presence of a serious misstatement in the booklet of the effect of the referendum proposal. As explained by the Chief Justice and by O’Donnell J., this part of the booklet wrongly stated or implied that certain aspects of the referendum proposal consisted in a continuation of existing provisions. I have no doubt that this was all done bona fide and with consciousness that the decision in McKenna had to be respected. However, the work was carried out on a mistaken understanding of the need to be neutral. This is exemplified in the views of the two independent experts who gave evidence on affidavit for the State. Neither of them swore that the material was actually neutral. Dr O’Malley thought that the intrinsic subject-matter of the referendum proposal meant that mere “explanation of context and the project of the amendment” was such that a reader of the material would be attracted to it “because of the substantive factual merits disclosed and the fact that children are the recipients” and that the presentation was not responsible for that attraction..

70. Professor Sinnott was of the view that it was an “unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference.” He did not find evidence of an intention to influence voters, adding the rider: “certainly not to any extent that could be reasonably avoided in the creation of the materials in question.”

28. In my view the campaign for the referendum conducted by the Minister under the guise of an information campaign was not fair neutral and impartial and its conduct amounted to clear disregard of the limits on the acts the State may perform during a campaign concerning a proposal to amend the Constitution. It is not equal or impartial. It is imbued throughout with value judgments, with positive statements about the several aspects of the referendum proposals. I share the reluctance of the learned President to pass judgment on statements made by responsible actors in the political domain; this should not be the business of the courts. I reach this conclusion with reluctance. I would not pass judgment based on an occasional or stray partisan twist or refined analysis of individual statements. The striking feature in the present case is the one-sided tendency of the campaign when viewed as a whole. Since it was funded from public monies and was not permitted in accordance with the principles laid down by this Court in McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10. These are my reasons for agreeing with the decision of the Court to grant the declaration already made.
Judgment of Mr. Justice O’Donnell delivered the 11th day of December 2012

1 Although this case occupied these courts over a period of just over a week in November of 2012 during the campaign on the 31st amendment to the Constitution (“The Children’s Referendum”) its roots go back almost 17 years to an earlier and more controversial referendum. The 24th of November 1995 was the date set for the Referendum on the proposal to remove the constitutional ban on divorce from the Constitution. The Government of the day had decided to do two things: first, to provide factual information in a balanced way in relation to the proposal; and second, and controversially, to spend what was then IRÂ£500,000 promoting a positive result in the Referendum. Thus at the very outset a distinction was made (and was capable of being made by the Government) between neutral information impartially presented, and partisan advocacy. On the 27th of October 1995, the High Court (Keane J. as he then was) had commenced hearing an application for an injunction, brought by Patricia McKenna then an MEP, to restrain the use of public funds in the Referendum for the purposes of promoting a positive result. As is common in urgent matters the trial of the injunction application was, by consent, treated as the trial of the action. On the 31st of October Keane J. delivered an ex tempore judgment dismissing the claim. The plaintiff immediately appealed by a notice of appeal filed on the 2nd of November 1995. The appeal was heard on the 8th and 9th of November. A further eight days later, the Supreme Court delivered five separate judgments upholding the plaintiff’s claim by a majority of four (Hamilton C.J., O’Flaherty, Blayney, and Denham JJ.) to one (Egan J.): McKenna v. An Taoiseach (No.2) [1995] 2 I.R.10 (” McKenna No.2 “). The fact that the case had to be heard and the decision required to be rendered during the process of a hotly contested referendum campaign was undoubtedly dramatic and led indeed to an unsuccessful attempt to overturn the outcome of the Referendum ( Hanafin v. The Minister for the Environment and others [1996] 2 IR 321) and a challenge to the broadcasting policy employed during that campaign ( Coughlan v. The Broadcasting Complaints Commission and others [2000] 3 I.R.1).

2 A necessary part of the presentation of most cases involves time for preparation, the obtaining of discovery, consideration of documentation, the marshalling of evidence both factual and expert in the light of that evidence, the exchange of reports, the oral presentation of that evidence, and cross-examination which has the benefit of rigorous preparation. There are of course cases where events will simply not permit even a compressed timescale for preparation because justice demands that a decision be rendered almost immediately, and in such cases the courts are obliged to make the best they can of the limited materials that are available. Often the best a court can do is to seek to resolve the major issues in dispute which have given rise to the litigation, as best it can.

3 The decision of the Supreme Court in the McKenna No.2 case is well known. It is one of those few decisions which are recognisable by name and referred to in public discussion. It would be idle to pretend that it has not attracted some critical comment, although much of the commentary (such as it is) seems to emanate from the fields of politics, and general commentary, rather than from legal analysis, and seems to address the question whether the outcome of the McKenna No.2 case is a desirable one from an administrative perspective, rather than whether it follows from the Constitution. The first question is not a matter for this or any other court: the second question simply did not arise in this case. In this regard I gratefully adopt the observations of Fennelly J. at paragraph 18 of his judgment: “It is of the first importance to emphasise from the outset that this Court has not been invited, by either party to the appeal to reconsider, to set aside to any extent, to re-interpret, distinguish or to qualify the decision of the Court in McKenna v. An Taoiseach .”

4 In the aftermath of the McKenna No.2 decision the opportunity was taken, wisely, of formalising the information provision function through the mechanism of the Referendum Commission established in 1998. Initially the Commission was charged with providing a statement of the case on both sides of the argument, in the same fashion as the uncontroversial and balanced information campaign conducted by the Government in The Divorce Referendum. In 2001 that requirement was removed. In every subsequent referendum, a Referendum Commission has provided neutral information and statement of the issues the subject matter of the Referendum. The Commission is chaired by a judge or a retired judge. Its composition is defined by statute. It normally proceeds by retaining advice, publishing a comprehensive booklet, engaging in an advertising campaign, and conducting information sessions. In carrying out its functions the Commission is of course subject to the McKenna No.2 decision. No complaint has been made about the performance of the Referendum Commission in respect of the Children’s Referendum.

5 In the run up to the campaign on the Children’s Referendum, it appears that the Government decided to conduct an information delivery campaign in parallel to the Referendum Commission’s performance of its functions. This had been a step taken to some degree and without challenge in the immediately preceding Referendum concerning the adoption of the fiscal treaty, but was undertaken here on a more substantial scale. Thus, of the €3.0 million fund for the purpose of the Referendum, €1.9 million was provided to the Referendum Commission, and €1.1 million allocated to the Government’s information campaign. It appears that the bulk of this latter sum was spent on obtaining public relations advice, and devising a campaign which involved the establishment of a website, the publication and delivery of a booklet, and the purchase of advertisements.

6 On the 8th of October 2012 the Minister for the Environment fixed the 10th of November 2012 as the polling date for the Children’s Referendum. The Referendum Commission, which had only recently been established, published an information booklet on the 16th of October 2012. The Government, also through the agency of the first named respondent, embarked upon its own information campaign. The plaintiff, Mr. Mark McCrystal, became concerned about the information campaign having called upon the first named respondents to cease the campaign without success and he commenced proceedings, almost immediately, on the 18th of October 2012. Those proceedings were dealt with in the High Court with considerable speed. Once again the trial of the injunction application was treated as the trial of the action. On the 1st of November the President of the High Court rejected the plaintiff’s claim and delivered a judgment prepared overnight, for the purposes of facilitating an appeal. This appeal was heard on the 6th of November, and the following day. In view of the imminence of the Referendum, the Court announced its decision to allow the plaintiff’s appeal. I now set out my reasons for concurring in that decision.
The Information Campaign
7 In general, the information campaign conducted on behalf of the Department of Children and Youth Affairs, consisted of three elements: a website, a booklet to be distributed to all households, and some television and radio adverts. They were, and were intended to be, linked both in theme and content. The website was established first. The booklet was completed after these proceedings were threatened and it was noticeably less forthright than the website. It is to be inferred perhaps that the material in the booklet was toned down in light of the possible challenge. The advertisements had less content again and did little more than use affecting voices of children of varying ages to repeat the message that “It’s All About Them But It’s Up To You”. For present purposes the website material is undoubtedly the most important. If, as the defendants contended, this material was consistent with the McKenna No.2 judgment, then it was unlikely that the booklet or the advertisements whether separately or collectively, could tip the balance.
The Website and its Content
8 The website home page was entitled “childrensreferendum.ie”. It is true that on the bottom right hand side of the page there was a stylised harp logo and the words “Department of Children and Youth Affairs”. Nevertheless it is, I think, fair to say that the website material did not by any means emphasise its source as the promoting Government department, nor was there any cross reference or link to the Referendum Commission, or indeed any mention of the existence or function of that body. The heading on the home page of “Children’s Referendum” included an image in silhouette of three young children holding hands. The page also contained a picture of the Minister for Children and Youth Affairs with young children. At the top centre of the page there was a box headed “Why do we need this referendum?” and below it another box headed “What will change if the referendum is passed?”. The text in the box under the heading “Why do we need this referendum?” was as follows:

“The Referendum forms an essential part of the Government’s child protection reforms as well as seeking to address existing inequalities in adoption.”
The text under the heading “What will change if the referendum is passed?” was:
“This referendum is about protecting children, supporting families, reducing inequalities in adoption and recognising children in their own right.”
This latter formulation was reproduced in boxes running down the left hand side of the page with the separate headings of “Protecting Children”, “Supporting Families”, “Removing inequalities in adoption” and “Recognising children in their own right”. Each of these individual boxes, and the boxes “Why do we need this referendum?” and “What will change if the referendum is passed?” permitted the viewer to click through and obtain more material on that topic. The home page also contained a link to a “FAQs” section, and also fact sheets which could be accessed on adoption, foster care and the history of the Children’s Referendum.
9 For reasons for which I hope will become apparent, I believe it is unnecessary to analyse the information contained on the website, in the booklet and in the advertisements in exhaustive detail. In particular in relation the website, I consider that two things would become readily apparent to anyone who scrutinised the material. First, it was clearly presented in a fashion which favoured passage of the Referendum. Second, it could not readily be described as factual information. I do not think that any fair-minded reader would consider the content either neutral or impartial on the question of the Referendum. Nor indeed did the defendants strenuously contend that it was: the main thrust of the defence was to argue that strict impartiality was neither required nor possible, and that the material was not so tendentious as to infringe the test in McKenna No.2 as interpreted by them.

10 The question “Why do we need this referendum?” might prompt a pedantic but correct reply, that it is the only method of changing the Constitution to include the proposed provisions. But the answer given by the website was, as previously cited;

“This referendum forms an essential part of the government’s child protection reform as well as seeking to address inequalities in adoption.”
Apart from the fact that this response more naturally answers a rather different question: why do we need to pass this referendum?, the text certainly suggests that without passage of the Referendum desirable child protection measures cannot be taken. The answer to the question “What will change if the referendum is passed?” is clearly to set out broad themes and to link to the boxes on the left hand side of the page, all of which clearly painted the proposal in a positive light. The protection of children, the support of families, the removal of inequalities and the recognition of children in their own right, are all matters that would normally be recognised as desirable objectives. It is hard to see how anyone who accepted that the Referendum achieved these objectives would consider voting against it. An advocate of a yes vote might well use language such as this, but I doubt very much that he or she would consider it was factual information rather than a statement of reasons to support the Referendum.
11 The box “Protecting Children” contained a link to further detailed text including the following:

“Responding to abuse must be rooted in a simple premise, which the Referendum supports, that when there is clear evidence of abuse, or serious risk to the safety or welfare of children, child protection services must be able to act quickly and effectively.”
This is powerfully suggestive that the passing of the Referendum would promote speedy and effective action for the protection of children in clear cases of abuse and serious risk, and seems to assume that the existing constitutional provision would inhibit such action. The text concluded with the following paragraph:
“Passing this Referendum will become the fundamental backdrop for the Programme of Change for Children. As part of this ongoing programme, Government is bringing in new laws on the reporting of child abuse as well as reforming Ireland’s child protection services, including separating them from the HSE, and establishing a dedicated new Child and Family Support Agency.”
Not only does this suggest that passing the Referendum is desirable, indeed fundamental, but it appears to relate the passage of that Referendum to a series of matters which, while self-evidently desirable, were not clearly (or at all) connected to the Referendum proposal.
12 The section on “Supporting Families” related to what was obviously a contentious issue during the Referendum debate. Persons opposed to the amendment argued that it undermined the position of families. Some of those supporting the amendment contended that the protection afforded by the existing Constitutional provisions to families inhibited effective child protection in cases where, it might be said, the families did not deserve or merit such protection or support. However, it was suggested by the website that the Referendum was about “Supporting Families”. That text contained the following passage:

“In many cases where families are in trouble, early intervention of family support services could play a role in preventing more serious problems arising, and avoid the need for children to be taken into care at a later stage.
Protecting children and supporting families are simply two sides of the one coin. This is a concept recognised right throughout our Programme for Change for Children and ties much of it together.”

This passage clearly favours passage of the Referendum and in a manner which could not be described as imparting factual information. Instead it seeks to neutralise, if not positively appropriate for the Yes side, an argument marshalled against the proposal. A related heading is “Standing Up For Parents”. This stated:
“In response to concerns from parents, the Minster for Children and Youth Affairs approached Retail Ireland and invited them to draft responsible retailing guidelines on the sale of childrenswear. The Minister published these voluntary guidelines this summer. They address increasing concerns over the sexualisation of children and childhoods, and will play an important and constructive role in informing future decision-making by retailers.”
While this might properly be considered information, it is hard to see how it relates to the amendment although clearly the implications of the heading and the context is to place it together with other desirable objectives such as “Strengthening Our Child Protection Laws” and “Implementing Long Needed Reform”.
13 One of the frequently asked questions was “Why do we need this referendum?”. The text then set out the response:

“Our Constitution is the foundation for all the State’s laws and policies. However, it does not provide an express statement of rights for children.
The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children.”

The very formulation of the question is revealing. It simply assumes that the proposed change is necessary. It is something which “we” – the People of Ireland – need. The only question is why that is so. The response suggests that the existing text of the Constitution is out of date and does not reflect the shared value of the People in relation to ensuring the protection of all our children. This is a powerful statement in favour of the passage of the Referendum. Indeed, during the course of argument, counsel for the State parties was asked by a member of the Court whether, if the heading was recast to “Why do we need to vote yes?”, it would be necessary to make any consequential change to the subsequent text. That is a useful, and revealing test. The entire text is as follows:
“Our Constitution is the foundation for al the State’s laws and policies. However, it does not provide an express statement of rights for children.
The Government is bringing forward this Referendum to give the Irish People the opportunity to change this. This Referendum will give people the option of updating the Constitution to reflect our shared value in relation to ensuring the protection of all our children. The proposed Amendment is intended to give firmer recognition to the rights of children under the Constitution and to affirm the State’s obligation, so far as practicable, to protect those rights.

There have been seventeen major reports on child protection failings in Ireland since 1970. The Government now has a Programme for Change for Children and is bringing on new laws in the reporting of child abuse and safer practices for organisations, where children spend time, and is also reforming Ireland’s child protection services by transferring them from the HSE and establishing a dedicated new Child and Family Support Agency. These reforms focus on intervention to ensure the safety and welfare of children is protected and to ensure that child protection services can respond appropriately to all child protection concerns.

Passing this Referendum will put children’s needs at the centre of decision-making and will facilitate changes to adoption legislation.”

It seems clear that no change to the text would be necessary if the title were changed to “Why do we need to vote yes?”.
14 The website concluded with a reference to the sponsoring minister, the Minister for Children and Youth Affairs, and her speech launching the website which recorded that the launch took place after the 31st Amendment of the Constitution (Children) Bill 2012 completed all stages of debate in the Oireachtas “with the full support of TDs and Senators.” The Minister commented on the “wording agreed by the Oireachtas” as follows:

“I would encourage everyone to read the wording on the information website www.childrensreferendum.ie. If you do, you will see that it is very clear in its objective. It’s about treating all children equally, in particular by removing inequalities in adoption. It’s about protecting children from abuse and neglect. It’s about supporting families; and it’s about recognising children in their own right”.
These statements by the Minister leading the campaign for the adoption of the proposal clearly relate back to the themes established on the first page of the website. In my view, it is self-evident that these slogans are intended to present the Referendum in a positive light, and to encourage support for it. If there were any doubts about that however, then it is useful to consider the text of the Fine Gael website which of course, unambiguously called for a yes vote, as indeed it was fully entitled to do. It contained a speech by the same Minister on an occasion described as “the launch of Fine Gael’s campaign for a Yes vote in the Children’s Referendum” and therefore on an occasion of unequivocal support for passage of the Referendum. It is revealing how that speech, which was clearly and properly a forceful advocacy of a Yes vote, made repeated use of the same themes and slogans focussed upon in the website campaign:
“Child protection concerns haven’t suddenly gone away. The sad reality is they never probably will.
But that doesn’t mean we shouldn’t do all we possibly can to protect children. That’s why we should vote Yes on Saturday November 10th when, after 19 years of talk, the Children’s Referendum is finally held.

A Referendum which is about protecting children from abuse and neglect.

It’s about supporting families by re-affirming and underpinning early intervention in family support services, to protect children in their homes.

It’s about treating all children equally in particular by removing inequalities in adoption .

It’s about recognising children in their own right .” (Emphases added|)

The only difference between the message of this speech and that of the website is that this speech contains an explicit exhortation to vote yes, something the defendants regard as critical, and to which I will return. The Minister then returned to the theme:
“But this Referendum matters.
Because Every Child Matters.

But they don’t get to decide. We do. It is about them, but it’s up to us .”

(Emphasis added|)

That was a message repeated more than once during the speech, and is of course the theme of the advertising campaign. The speech therefore illustrates not only how compatible the website material was with the yes campaign, but also a significant blurring of the distinction between the Government’s information campaign and the Yes campaign of the Government parties. Not only is this demonstrably not neutral, it is not in any real sense information, at least in the sense of factual information as discussed in McKenna No.2 . It is noteworthy that the Referendum Commission, seeking to perform the same task by the same constitutional standard, did not use language or presentation which was in any way similar in tone.
15 It was agreed by all parties that the booklet was similar in style and presentation to the website, but more neutral in its tone. It was finalised and issued after these proceedings were commenced. It did however contain one significant matter. In what was described as an “article by article guide ” to the proposed amendment the booklet dealt with the replacement of Article 42.5 and said:

“It will continue to be the case that the power given by the Constitution in this area can only be used by the State in very well-defined circumstances. Key requirements will continue to be as follows:

• the State can only make use of the power “in exceptional cases” ;
• a failure of parental duty towards the child must exist – “where the parents, regardless of their marital status, fail in their duty towards their children” ;

• any failure must involve harm or risk to the child’s safety or welfare – “to such extent that the safety or welfare of any of their children is likely to be prejudicially effected” ;

• the actions of the State must be in balance with the harm or risk to the child that needs to be addressed- “by proportionate means” ; and

• the actions the State can take must be set out in law – “as provided by law” .” (Emphasis added)

In fact there was a clear error in this statement. The bullet points set out components of the proposed new amendment. It was accordingly wrong to suggest that these were merely the maintenance or continuation of existing requirements. The error was pointed out by Mr. McCrystal in his affidavit of the 23rd of October. It was acknowledged as an error by the State on the first day of the hearing in the High Court but no steps were taken until the second day of the hearing in this Court to correct it. In the meantime booklets continued to be distributed to houses around the State. While the impact of any such mistake might well be debated, the attitude to it is revealing. If the booklet had been prepared on behalf of an independent body concerned with neutral delivery of factual information and with maintaining its reputation as an impartial provider of accurate information, it seems likely that the discovery of an error like this and its correction would have been a matter of much greater concern.
The Evidence
16 The plaintiff swore three affidavits on his own behalf. He also obtained affidavits from three witnesses with a significant range of expertise and views. The well known writer John Waters swore two affidavits. He freely admitted that he was opposed to the amendment and campaigned against it. However he also explained that he had 30 years experience of the media and in the field of communications and was familiar with many techniques of persuasion that are employed in public communications and the manner in which Government’s use language in an attempt to persuade, as opposed to inform. While acknowledging his opposition to the amendment he said he was approaching his examination of analysis of the material not in terms of the merits of the amendment but solely in terms of the net issue of “whether the material represents a neutral and dispassionate conveying of the information or whether it is designed or likely to favour one side rather than other.” He conducted a careful, detailed, and in my view illuminating, analysis of the passages in the website including those identified above. He considered the booklet more neutral but still favouring a yes vote, and considered that the advertisements involved the delivery of subliminal messages which were at least favourable. Of the advert he said the following:

“The use of voices of children in the radio advertisement – in particular of Sara, who is “twee and a quatah” – certainly does not amount to “information”, but more than that cannot but be seen as an attempt to manipulate the emotions of the public. The use of children’s voices accompanied by the slogan “It’s all about them, but it’s up to you”, suggests that the children of Ireland are imploring voters to help them, if not indeed to rescue them from some unspecified situation, implicitly a difficult one. The advert makes no attempt to deal with any of the issues relating to the amendment, but relies entirely on the emotive use of the children whose voices are heard.”
17 An affidavit was sworn by Lyn Sheridan, a director of Aiken Public Relations Company in Belfast, Northern Ireland who has more than 20 years experience working on behalf of public and private sector clients. She emphasised that she had no role or involvement in the amendment and no particular position on it and no prior dealings with any of the parties to the proceedings. Having studied the Government’s communication she said that she found the tone to be “partial unbalanced and persuasive of a “Yes” vote.” In relation to the website she said that the links on the left hand side of the screen of the website; “Protecting Children”, “Supporting Families”, “Removing Inequalities from Adoption”, were “all propositions supportive of the amendment rather than impartial factual information.” She concluded that “The Government communication regarding the Referendum had the hallmarks of an integrated marketing campaign for which a brand had been carefully, deliberately and, I would expect, professionally devised and managed” and that had she as a PR practitioner been asked to prepare materials for a campaign in favour of a yes vote she would have prepared materials similar in content to those of the Government campaign.
18 Finally, Mr. McCrystal submitted an affidavit from Colm Kenny, a Professor of Communications in Dublin City University. For his part, he explained that he was personally in support of the amendment. Again he analysed the information in a careful and detailed way and concluded that “these information sources that were prepared by or for the Department of Children and Youth Affairs and that relate to the proposed Article 42A not only provide certain objective information to the public about that proposed amendment to the Constitution of Ireland but also support the case in favour of people voting YES in the Referendum on 10 November 2012.” Collectively, these affidavits formed an impressive body of testimony. The conclusion which they all reach, that the style and tone of the material is that of persuasion rather than impartial dissemination of information, provides significant support for the plaintiff’s case.
The Defendants’ Evidence
19 The defendants relied on evidence from a number of different sources. Whether from the accident of the exchange of affidavits within a compressed time scale in an urgent application, or from design, or both, there was little direct engagement in these affidavits with the affidavits sworn on behalf of the plaintiff. There was no cross-examination of any of the deponents, and therefore the case was conducted at the level of rival assertions. In my view it is a striking feature of the defendants’ affidavits that they did not engage with the detail of the materials of which complaint was made and instead made observations at a level of some generality and abstraction.

20 An affidavit was provided by Mr. Gerard Angley, a first secretary in the Department of Foreign Affairs, on secondment to the Department of Finance. He explained that the information campaign adopted in relation to the Children’s Referendum had followed from the experience of the Stability Treaty Referendum. He observed that market research conducted in the aftermath of the two referenda held in October 2011 had indicated a public desire for more information from a variety of sources. That much is true, but the report itself did not suggest any demand for additional governmental information. On the contrary it reported that “voters were especially keen to hear from voices outside the political environment…”. This witness had only been involved in the information campaign after the setting up of the website and during the preparation of the booklet. He expressed his general conclusion that he did not consider “the information disseminated by the Department to be biased or to advocate a particular outcome…”.

21 The principal affidavit opposing the application was that of a Ms. Canavan, an assistant general secretary in the Department of Children and Youth Affairs with responsibility for the Referendum campaign. This affidavit set out in considerable detail the background to the decision to propose an amendment to the Constitution. She explained that particular attention was paid to the decision in McKenna No.2 , and exhibited a protocol which showed the route for initial approval of documentation which included an optional step of reference to the Office of the Attorney General “if required”. She also exhibited a memorandum of instructions on the implication of the McKenna No.2 judgment that stated:

“During the referendum campaign period, the Government has a right and duty to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies. However, the Government is not entitled to expend public monies for the purpose of promoting a campaign for a particular outcome.”
This appears to be an attempted synthesis of the judgments in McKenna No.2 . Furthermore, the memorandum also offered advice as to use of the Government website. It advised that speeches and statements by Government ministers could be carried on the website “However, any passages in statements that advocate a Yes vote should be redacted.” This memorandum illustrates the approach of the defendants to the implications of McKenna No.2 . Even though the importance of McKenna No.2 is what it precludes, primary emphasis in the memo is placed on what is considered permissible: a Government information campaign. What is prohibited is described as “promoting a campaign for a particular outcome” which is illustrated by the advice that statements which may otherwise strongly support the campaign for passage of the Referendum may be used on the Government website as long as the passage which specifically advocates a yes vote is redacted.
22 This is an interpretation of the McKenna No.2 judgment which is generous in its approach to the powers of Government during the Referendum and narrow in its reading of what is prohibited. In paragraph 72 of her affidavit, Ms. Canavan stated:

“The phraseology of the information is a reflection of the context in which the need for the referendum arises and the express contents of the wording thereof. To the extent that the Plaintiff herein feels that the content and/or context of the referendum is in itself a positive affirmation thereof, that is to attack the wording and core factual purpose of the Referendum”.
This passage illustrates the abstract and generalised way in which the defendants sought to account for the claims made by the plaintiff. It seems to be argued that the statements on the website and in the booklet and advertisements cannot be said to favour the governmental side. The proposal is a good thing and it cannot therefore be wrong to say so. This also reflects a line of thought found in other affidavits: because something can be said about the proposal and not be positively inaccurate, it cannot be impermissible. But this is surely to risk confusing accuracy with impartiality.
23 Ms. Canavan expressed her conclusion at paragraph 97 as follows:

“It is believed to be a fundamental public duty and the entitlement of a Government department associated with the subject of any legislative change to publicise and explain the content, purpose and broader legal or social context of the change. In the context of the constitutional change proposed, I believe that the Department has undertaken this duty with conscientious attention to the prohibition against the funding of promotional material and, with the intention of informing the public of the subject in a way that satisfies the needs of clarity, simplicity and with an emphasis appropriate to the gravity of the issue. I believe that the complaints made by the plaintiff belong either to his private views or the debate on the substantive issue. His criticisms arise from such a subjective and intricate impression as to be unpredictable at the stage of composition of the Department’s publications and are argumentative on review at this stage.”
It should be said that the plaintiff made it clear that he was prepared to accept the Department had acted in good faith in preparing the campaign and did not challenge it on that ground.
24 In addition to these affidavits the defendants also relied upon an affidavit of Dr. Kevin Rafter, a lecturer in Dublin City University in political communications and journalism. Although from the same faculty as Professor Colm Kenny, and although his affidavit appears to have been sworn after that of Professor Kenny, it does not engage with that evidence or indeed mention its existence. Again, Dr. Rafter’s evidence operates at a level of some generality. Dr. Rafter considered the tone of the website “low key” and thought the campaign subheadings “unimaginative” but considered that they did “align” with the Referendum wording and showed no significant or identifiable added value commentary beyond the line which is the proposal of the amendment itself. I interpret this to mean that if any statement can be related to an aspect of the proposal it is permissible. On this view since it can be said that the Referendum was about protecting children and supporting families, then it was not wrong for the Government to spend public funds saying so. Again, Dr Rafter sought to defend the material by a form of negative argument. He pointed out what the material did not do, and thereby illustrated what it appears he considered was prohibited. At paragraph 15 of his affidavit he stated:

“There are no graphic images that could be described as being of a campaigning nature in terms of advocating one side of the referendum debate over another.”
25 Finally, the defendants relied on affidavits from the discipline of political science. The first affidavit was that of the well known expert, Professor Richard Sinnott, Professor Emeritus of Political Science of the School of Politics and International Relations in University College Dublin. He stated that he had been retained by the Department to advise in the course of the Referendum. He explained that in his deliberations with the Department, adherence to the McKenna No.2 judgment was a key consideration and was very consciously to the fore in discussions with representatives of the Department. He offered the view that:-
“…any discussion of human rights, in this case children’s rights, has an inherently normative dimension. This dimension will almost certainly manifest itself in the course of the provision of information in this context even when the intention of the drafters of a document is confined to describing and explaining what the proposal is about. It is an unreasonable if not impossible requirement that the preparation of a publication in the present context would attempt to render the document entirely devoid of any normative reference.”
Instead he suggested that the “only real and practical test is one of broad fairness: has the publication generally followed a reasonably informative line, bearing in mind the nature of the subject.” He then compared the website with the websites of parties campaigning explicitly for a yes or no campaign and observed: “The Plaintiff appears to argue that the closer an ostensibly neutral publication resembles one side of the vote then the less neutral it is. This is a fallacy.” At the level of theory this may be correct at least where the debate is self evidently all one way (although in such circumstances a €1.1 million public relations campaign might seem unnecessary) or one side of the debate has plainly misconceived the nature of the proposal, but at a more practical level where there exists a genuine dispute, and therefore a real need for neutral information, then the more a publication resembles one side of the debate the more it certainly risks being seen as not impartial. This rather theoretical argument does perhaps implicitly recognise that the Departmental publications did indeed resemble one side of the debate. Taking into account therefore, in his view, the difficulties of providing information while avoiding advocacy, and taking “a common sense view of the context” he concluded that while there were “four debatable points for objection” in the booklet, he did not believe either the booklet or website “shows signs of being intended or having the effect of guiding or swaying voter responses as a result of substance or presentation, or to the extent that this conclusion might be debated, certainly not to any extent that could be reasonably avoided in the creation of the materials in question or could be confidently said to be likely to arise.” Again, it is noteworthy that Professor Sinnott does not engage directly with the criticisms made of the specific portions of the website referred to above and seeks to defend the departmental material by asserting the impossibility of avoiding normative statements and suggests that if a relaxed view is taken of the test, that the material is, in general, unobjectionable.
26 Dr Eoin O’Malley, a lecturer in political science in DCU took a somewhat different line. He seemed to suggest that it was impossible to provide truly neutral information, or at least for the proposer of any amendment to do so. He said; “If one is to give information about a proposal, and is restricted to just giving information then one almost inevitably must base it primarily on the rationale for the proposal.” He then stated that “I believe it is important to recognise that it is not possible for the sponsor of legislation to remove the natural and intrinsic features of the subject of legislation.” This sentence, which was referred to by the learned President of the High Court as candid and generous is, to me, somewhat puzzling. The words “for the sponsor of legislation” appears to imply some important qualification, but if it is possible for anyone to remove the “natural and intrinsic features” of the subject of legislation, it is not clear why that should be beyond the capacity of the sponsor. Self-evidently it is not beyond the capacity of the Referendum Commission. This passage seems to suggest that it is simply not possible to expect the sponsor of legislation, in this case the Department, to be neutral about it. This seems a dubious proposition not least because of the example given in McKenna No.2 , where in addition to the frank advocacy involved in the Government’s campaign, the Government also provided funds for a factual information campaign which was balanced, and of which no complaint was made. But it is apparent that Dr. O’Malley like the other experts and opponents on behalf of the defendants, must adopt some significant qualification of the nature of the test, before seeking to assert with any plausibility that this information is or can be considered impartial. Thus, he continued;

“It is not reasonable to expect the sponsor to actively sterilise the subject. One must determine whether the sponsor has either explicitly promoted support or so interfered as to render an unattractive subject attractive. Any less a distinction makes its impossible to distinguish between the subject itself and the presentation.”
This sets out a theme emphasised by counsel for the defendants. An objective test was required and that was provided by prohibiting a positive exhortation to vote in a particular way. Whatever the merit of this as a generalised test, it does not appear to be derived in any way from the judgments in McKenna No.2 . He concludes that the booklet does not “advocate a particular outcome.” This he says is a notable absence and is a clear distinction from a “campaigning type booklet which would make such a bias manifest.” Finally, at paragraph 25 of his affidavit he said “Where propaganda is alleged, I believe it is important that it is manifestly propaganda. If propaganda is forbidden, it must be identifiable as such or else an author faces an invisible standard.” For the sake of completeness I should say that on the hearing of this appeal the plaintiff submitted further evidence and exhibited a statement from a discussion on thejournal.ie website in which Dr. O’Malley expressed views on the nature of the campaign. In particular, in relation the Fianna Fáil slogan adopted “Protect Children”, which as the plaintiff observed, is a direct parallel of the key message “Protecting Children” on the Government website and leaflet, Dr. O’Malley stated “The phrase “Protect Children” is again an attempt to frame the referendum, which those on the no side might take issue with. The phrase is pretty anodyne, but that doesn’t really matter.” The plaintiff relied on this because, of course, his case was that the website material was precisely that: an attempt to frame the Referendum in a fashion favourable to the Yes side.
27 I have set out the evidence submitted at some length. I think it is possible to make the following observations on the approach which the evidence adduced on behalf of the defendant reveals. There is no direct reference to or quotation from the judgments of this Court in McKenna No. 2 , or a coherent or consistent explanation of what the defendant considers that case decided. Where such reference is made indirectly, it is apparent that the defendant’s approach is to emphasise the fact that a factual information campaign did not contravene the principles in McKenna No.2 , to adopt a broad understanding of what constitutes such factual information together with a narrow reading of what was prohibited in that case (as “advocacy”, “campaigning”, “propaganda” or “direct exhortation”). The case made asserts the impossibility of a truly neutral standard either in general, or at least on the part of the Government proposing the amendment, and suggests that the question of whether Government material complied with the McKenna No.2 principles should be assessed by a particularly generous standard which recognises the inherent nature of the topic and asserts the inevitability of partiality, and imposes an objective standard, namely a prohibition on direct exhortation to vote Yes. The evidence only engaged with the specific evidence on behalf of the plaintiff, at a level of abstraction and generalisation. Indeed it did not address the evidence of either Professor Kenny or Ms. Sheridan at all. Although the campaign was itself an exercise in public relations, no evidence from that field was proffered to explain the message the material was designed to convey, or otherwise to counter Ms. Sheridan’s evidence.
The High Court Judgment
28 In the High Court the learned President of the High Court dismissed the plaintiff’s claim. It is significant however that in doing so, the President adopted an approach which showed that he considered it was necessary to produce something exceptionally partial before the standard set in McKenna No.2 would be breached. Observing that the defendants had not sought to challenge the question or otherwise seek to refine the principles enunciated in McKenna No.2 he set out his view that the bringing forward of a referendum proposal by the Government is a political act or initiative in respect of which the Court should be extremely slow to intervene. Accordingly he considered at paragraph 37 that the yardstick against which the material should be assessed was that:

“The breach complained of must be something blatant and egregious. It must be something which is to be seen or found in the presentation of the proposal and not to be a matter which to quote counsel for the defendants, “mires” the court in assessing the merits of the substantive issue or an excessive scrutiny of each and every scrap of information disseminated by or on behalf of Government.”
It is in my view instructive, that it was by setting the hurdle at the height marked “blatant and egregious” that it was possible to conclude that the material in this case did not offend the McKenna No.2 principles.
The Defendants’ Submissions
29 As a matter of logic it might be said that the material in this case could be justified in a number of ways: first by contending that it was truly impartial on any standard; second, by contending that McKenna No.2 was wrongly decided; third, by taking a narrow reading of that case and asserting either that impartiality was not the standard required, or alternatively that it should be judged by a very deferential standard, or both. For reasons I have set out, I do not consider that it is possible to say that the material is on any view impartial, and indeed, on one view, the approach taken by the defendants’ witnesses is a confirmation of this conclusion. It is also significant, as observed by the learned President, that the defendants did not seek to question the decision of McKenna No.2 , nor indeed to suggest it should be qualified in any way. I do not consider that it would be appropriate for me to offer any observations on this matter. I approach this case in the same way as it was approached by the defendants: on the basis that the McKenna No.2 decision correctly states the law and is binding and that the only question for resolution is its application to this case. Accordingly the defendants’ case appeared to be limited to contending for a narrow reading of the McKenna No.2 decision, i.e. that it simply precluded direct advocacy of a yes vote when supported by public funds, and contending at the same time for a high threshold for review.

30 At the outset of submissions counsel for the defendants sought to contend that McKenna No.2 forbade what he described as “deliberate, self-demonstrating, political action with public funds” which he said was not present here. Of course, this phrase cannot be derived from any of the judgments in McKenna No.2 . He sought to justify it as a distillation of the McKenna No.2 principles by arguing that that case was decided in the context of deliberate self-demonstrating political action with political public funds. In other words, the McKenna No.2 case involved the contribution of IRÂ£500,000 to promote a Yes campaign, and only precludes such expenditure. But it is impossible in my view to contend that McKenna No.2 can be so narrowly understood. That would be to confuse the result with the reasoning by which it was reached, and the facts of the case with the principle it illustrates. Counsel for the defendants did accept that a Government funded campaign had to be “fair, equal and impartial” which is a notably broader formulation and one more consistent with the reasoning in McKenna No.2 . Later he also accepted that any information campaign should be “neutral”.

31 The core of the defendants’ case therefore seemed to turn on an insistence that the material published by the Government did not offend the McKenna No.2 principles as interpreted by the defendants. Central to that proposition was the threshold necessary to establish a breach of those principles. The argument was that McKenna No. 2 recognised the Government could provide information, and that Hamilton C.J. had referred to the necessity of establishing “clear disregard” which contemplated a margin of deference to governmental decisions which meant in turn – and this was the crucial step in the argument- that only a clear and unequivocal exhortation to vote yes was prohibited. This argument is indeed consistent with the memorandum of instruction to the department which suggested that it was sufficient to redact from any speech those portions alone that actually said “vote yes”. All the elaborate argument and evidence really came to this proposition, and understandably so. Unless the test of clear disregard of the constitutional obligation of fair equal impartial and neutral could be reduced to a question of the presence or absence of a positive exhortation to vote , then it would be difficult to find that the present material was compatible with that constitutional standard. However I cannot understand how a standard of clear disregard, which involves a consideration of the degree to which material could be said to be impartial , could be equated with a test dependent on the presence of an exhortation to vote, no matter how partial and tendentious the material might otherwise be.

32 Building upon that perhaps slender basis, it was submitted that there were analogies for the level of tolerance which it was asserted the McKenna No.2 principles, at least as interpreted by the defendants, allowed to governmental action. Thus it was suggested that in the context of administrative law the same principle was reflected in the Wednesbury rules, which distinguish between rationality of the decision making process, and the merits of the decision itself. This is a reference to a test in administrative law in the U.K. set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, found in Irish law in State (Keegan & Lysaght) v. Stardust Victims Compensation Tribunal [1986] 1 I.R.642, that a court will only quash an otherwise lawful decision if it flies in the face of fundamental reason, or is so unreasonable that no reasonable decision maker could have arrived at that decision. Reliance was also placed on s.43 of the Referendum Act 1994, which provided that a petitioner might question a provisional referendum certificate where he or she could show that the result was “affected materially” by an irregularity. It is suggested that this test which applied after a referendum, should apply conversely so that it was argued that “…only such matters as can assuredly be said to ‘materially effect’ the outcome should be enjoined by Court order if the manner of the provision is unlawful and unconstitutional.” This would be a very formidable hurdle indeed if applied, as it must be, in advance of a referendum. Furthermore it was said, there must be a “broad range of appreciation.” It was necessary to take account of the “ineradicable attraction of the subject”. There were some subjects which “cannot be spoken about without giving the appearance of bias”. The only valid test therefore was to understand the reference in McKenna No.2 to “clear disregard” as prohibiting an unequivocal exhortation to vote in one way, and that alone. When asked to identify a portion of the material which could be said to be favourable to the No side of the debate counsel pointed to the following passage on page 12 of the booklet where it was said it was acknowledged that the best interests of the child test could already be found in existing legislation. The sentence and the immediately succeeding sentence are as follows:-

“This principle can already be found in existing legislation concerning guardianship, child care and adoption. However specific recognition of this principle in the Constitution will give this principle greater weight when counter-balanced against other rights and interests, and ensure that laws in these areas make such provision.”
The fact that this passage which in my view clearly promoted the proposed amendment could be relied upon as an, if not the, example of a passage favourable to the No argument, is itself revealing.
Conclusion
33 I regret that I find the arguments of the defendants deeply unpersuasive. The reading of the judgment in McKenna No.2 , as limited to a positive endorsement of a right and duty to provide information on the part of the Government, and a negative prohibition on only such conduct as would fail a Wednesbury test type (or the “material affect” test contained in s.43 of the Referendum Act 1994) is in my view unjustified. In particular it does not give any weight to the reasoning leading to the decision in that case.
The McKenna No.2 Decision
34 Those judges who were in the majority in McKenna No.2 took slightly different but consistent routes to their conclusion. Thus, Hamilton C.J. focussed on the structure of the Constitution and the separation of powers. At page 32 of the report he relied upon the statement by Walsh J. in the course of Crotty v. An Taoiseach [1987] IR 713 that, “To the judicial organ of Government alone is given the power conclusively to decide if there has been a breach of constitutional restraints.” He also referred to the passage in the judgment of Fitzgerald C.J. in Boland v. An Taoiseach [1974] I.R. 338, where he said:

“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 on it by the Constitution.”
Finally, Hamilton C.J. referred to the passage in Crotty v. An Taoiseach in the judgment of Finlay C.J. where he stated:
“… where an individual comes before the Courts and establishes that action on the part of the executive has breached or threatens to breach one or other of his constitutional rights that the Courts must intervene to protect those rights but that otherwise they cannot and should not.”
From these passages Hamilton C.J drew certain conclusions:
“1. The courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers.
2. If, however, the Government acts other than in accordance with the provisions of the Constitution and in clear disregard thereof, the courts are not only entitled but obliged to intervene.

3. The Courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution.

Having regard to the respect which each organ of government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established.”

35 This conclusion is obviously important, not least because it is not limited to the specific context of referenda, but refers to the position of the exercise of governmental powers more generally. It seems to me however, impossible to derive from this simple system the hyper deferential test contended for by the defendants particularly when such a test is not so expressed in either the judgment of Hamilton C.J. or in any of the other judgments. While the defendants necessarily place heavy emphasis on the word “clear” it is perhaps telling that although Blayney J. is recorded in the headnote of the report as agreeing with the synthesis proposed by Hamilton C.J. he did not express himself in just those terms. Although at page 50 of the report he expressed a general agreement with the Chief Justice, he concluded simply “The Government has in my opinion acted in disregard of the provisions of the Constitution…” (emphasis added). It is not necessary to consider here what precisely is meant by the phrase “clear disregard” and we were not invited to do so. It seems at least to provide in this case a readily understandable and applicable standard to judge governmental action. As is evident in the passage referred to it is a component of that respect due by one organ of Government to another (seen also in the presumption of constitutionality in respect of legislation), and a reflection of the fact that the Constitution confers primary responsibility for, and expertise in, certain areas on one of the branches. Breaches of the Constitution in any such area must be capable of being clearly established. I can see no justification for replacing that test with a standard of blatant and egregious. Still less is there any justification for reducing the test in the case of a referendum campaign to a prohibition of direct exhortation to vote in a particular way. It is difficult to see why the Constitution would require a standard that would prohibit only gross acts of exhortation (which might be ineffective) but permit effective though more subtle advocacy, and nothing in McKenna No.2 supports such a distinction. Instead the decision is clearly expressed in broad terms.
36 The remaining judgments emphasise different aspects of the case but they are notable for the breadth of the principles invoked. O’Flaherty J. held, at pp.45 and 46, that the spending of public monies by the Government infringed the equality rights of the citizen. He also saw fairness as a component of that equality. Importantly in the context of the present case he also observed that the strength with which the proposal was pressed was irrelevant to the question of whether it was fair and impartial:

“It is no answer to say, as has been said, that the advocacy … is gentle, bland and mild and is put forward in the context of making a fair effort on the Government’s part to put all matters before the people; nor is it an answer to say that the amount involved, Â£500,000, is only a small amount; it may well be – but even if it is so, the principle is not affected – nor, finally, is it any answer to say that it is either the entitlement or the “duty” of a Government so to educate the public . If the Government regards itself as having that right or duty, it must exercise it without resort to public funds.”
These words apply with equal force in the present case.
37 Blayney J. considered that it was significant that the Constitution gave no explicit role to the Government in a referendum process. The sole function of the executive which could be deduced from the text of the Constitution, was that it was its duty to submit the bill in referendum to the People. It followed therefore that constitutional justice required that the executive should act fairly in submitting its proposal. He concluded at page 50:

“If this plan were implemented it would give a very considerable advantage to those whose support the amendment as against those who oppose it. The Government would be acting unfairly in the manner in which it was submitting the amendment to the decision of the People.”
Finally, Denham J. (as she then was) considered that the spending of Government funds in a referendum campaign in support of one side of that campaign, breached the equality rights guaranteed by Article 40.1, and particularly the spirit of equality applied in the process of a referendum. It also breached the right of free expression, and a right to a democratic procedure in the Referendum.
38 On any analysis of the judgments in McKenna No.2 it seems clear that it cannot be understood as a narrow decision. It involved the application of broad principles derived from the structure and underlying theory of the Constitution, indeed some of its most fundamental concepts such as fairness and equality. To contend that the judgment asserts a right on the part of the Government to make information available, and merely prohibits blatant or egregious acts of direct advocacy, is an unduly narrow approach to that judgment. It would indeed be peculiar if the most fundamental concepts of fairness and equality operated only to prohibit the use of public funds to advocate a Yes vote, but did not restrain partiality, unfairness and inequality, however pervasive that might be.

39 It must be apparent also, that the Wednesbury test is not a useful guide to the application of constitutional standards to actions by the executive. When a public body exercises public law functions, a court exercising judicial review, does not act as if it were considering an appeal on the merits of any individual decision. The sole function of a court is a review of the legality of that conduct. If a public body does not act within its powers and if it is challenged a court must so declare. There is no margin of appreciation. A court does not however consider the merits of the individual decisions save, that if it is manifestly irrational, it is also considered unlawful. Thus, the irrationality test is a residual test of legality, and a very attenuated review on the merits. But the court does not apply the irrationality test to the question of legality, and still less to any question of whether any action is in breach of the Constitution. It is hard to see how the so called Wednesbury test of unreasonableness can provide any useful guidance where an action is challenged by reference to the Constitution.

40 The analogy with s.43 of the Referendum Act 1994 is equally misplaced in my view. It should be clear that there is a large, and constitutional distinction between restraining a breach of the Constitution by the Government (or anyone else) occurring in the course of a referendum campaign, and the interference with and setting aside of, a decision made by the People whose right it is in final appeal to decide all questions of national policy. In the event, the Divorce Referendum which was the background to McKenna No.2 itself provides a clear demonstration of the fallacy of this reasoning. The Government campaign was in fact restrained by the Supreme Court in McKenna No.2 but the subsequent decision of the People was not set aside although challenged in Hanafin v. Minister for the Environment [1996] 2 IR 321 where the petitioner relied on the self-same breaches of the Constitution which had been established in McKenna No.2 and, for good measure, some further matters which emerged thereafter. If the test of material effect as applied in Hanafin is applicable in the McKenna No.2 situation then the plaintiff ought to have failed. Alternatively, if McKenna No.2 is to be understood as an implicit application of the material effect test then the petitioner in Hanafin ought to have succeeded. It is apparent that a different standard applies in any application to set aside the decision of the People once given, and for good reason.

41 Like my colleagues, and the President of the High Court, I agree that the position of the Referendum Commission requires consideration in the course of this case and indeed if the dictates of the Constitution as outlined in McKenna No.2 are to be complied with. First of course, the very existence of the Referendum Commission, and its performance of its function in delivering literature at short notice to the electorate, is itself the most clear demonstration that contrary to the evidence and submissions of the defendants, it was possible to state the facts and issues in this very Referendum campaign without inevitably favouring the proposal. Furthermore, it is worth recalling that McKenna No.2 was decided in the context of a referendum campaign in which, almost by definition, there was no role for a Referendum Commission. Indeed, during that Referendum campaign there was a dual campaign conducted on behalf of the Government: the Â£500,000 promotion of a Yes vote, and the expenditure of monies on the delivery of what was described as “factual information”. It was this latter function which has subsequently been discharged by the Referendum Commission. The Referendum Commission is now an established and welcome feature of the landscape in any referendum campaign. A decision therefore of the Government to launch its own and separate information campaign not only ran the risk of proceedings such as this (particularly because it was apparently believed that it was not possible for the sponsor of the proposal to be strictly neutral), but also a risk of considerable confusion and a consequent undermining of the function of the Referendum Commission. The existence of a fully independent body with a record of delivery of trustworthy information to voters is itself a significant performance of the guarantee of impartiality of the process of information dissemination in the course of a referendum. I also agree with the learned President that it is undesirable that the courts should be asked to intervene to analyse in minute detail language used in the provision of information to voters. In any proposal to amend the Constitution it is important that the People are permitted to make their decision on the merits of the proposal in a fashion which is as free from interference and distraction as possible. The public challenging of information in court and the uncertainty created by the existence of court cases, are all undesirable distractions from the question of whether the proposal put to the People should be adopted or not. The test of “clear disregard” applied by having regard to the publication as a whole provides a standard which should permit the Referendum Commission to carry out its function without the type of hyper zealous textual analysis rightly deprecated by the learned President.

42 Ultimately the material supplied here must be judged. In my view, that poses little difficulty. It is irrelevant that the material can be seen as low key, lacking in stridency, or not direct advocacy of a yes vote. As counsel for the plaintiff observed, subtle advocacy may be much more effective than a blatant or egregious advocacy. Indeed much successful campaigning in a political context may involve avoiding hard edged statements of detail with which people may disagree, and an attempt to associate the candidacy or proposal with ideas which themselves are popular and acceptable and the creation of a mood and impression which is favourable. Thus the material used in the Referendum campaign of those political parties which were unambiguously in support of the proposal, and campaigned directly for it, was often limited to attractive images of children and slogans such as “every child matters” and “children should be seen and heard”. The presentation of such images and slogans are attempts to frame the debate in terms favourable to one side. It is a common observation that a person who is able to frame the debate, particularly if they can put themselves in a trusted position as the purveyor of information, will often succeed. The most valued position in politics, is the appearance of being above politics. The fact that the message here cannot necessarily be described as strident, blatant and egregious, or campaigning advocacy or propaganda, is to miss the point. The only question is whether it was fair, equal, impartial and neutral. Making every allowance for the range of possible views I consider that it has been clearly established that it was not. For these reasons, and for the reasons set out in the judgments of the Chief Justice and Fennelly J , with which I agree, I allowed the plaintiff’s appeal.

Ruling of the Court delivered on the 8th day of November, 2012 by Denham C.J.

1. This is an appeal by Mark McCrystal, the plaintiff/appellant, referred to as “the appellant”, from the judgment and order of the High Court (Kearns P.) given on the 1st November, 2012.

2. This matter was dealt with as a matter of urgency by the High Court, as it is by this Court, as the appellant has sought declarations, an injunction and consequential orders which have a relevance to the Referendum taking place on the 10th November, 2012.

3. In McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10, it was held that the Government in expending public moneys in the promotion of a particular result in a Referendum process was in breach of the Constitution.

The people adopted the Constitution 75 years ago. The Constitution belongs to the people and may be amended only by the people in a Referendum. It is this democratic process which is protected by the McKenna principles. Public funding should not be used in a Referendum to espouse a particular point of view.

4. The McKenna principles may be found in the several judgments in that case. These principles, which are not in dispute, are consistent with standards recognised both nationally and internationally for a Referendum process, such as the European Commission for Democracy through Law (Venice Commission), Code for Good Practice on Referendums, adopted by the Council for Democratic Elections at its 19th Meeting (Venice, 16 December, 2006) and the Venice Commission at its 70th Plenary Session (Venice, 16 – 17 March, 2007).

5. At issue in this case is the application of these principles to a booklet and a website, both entitled “Children’s Referendum”, and advertisements, published and disseminated by the Department of Children and Youth Affairs, on foot of moneys voted by the Oireachtas, which the appellant submits breach the McKenna principles.

6. The Court is required to give its decision promptly, in view of the pending Referendum to be held on Saturday, 10th November, 2012. The substance of that proposal is a matter for the people alone. The Court will give its ruling today and judgements will be delivered on Tuesday, 11th December, 2012.

7. The Court has concluded that it is clear that there are extensive passages in the booklet and on the website which do not conform to the McKenna principles. This material includes a misstatement, now admitted to be such, as to the effect of the Referendum.

8. The Court is satisfied that while not all of the website or the booklet are in breach of the McKenna principles, because of the overall structure of the booklet and website, it would not be appropriate for the Court to redact either.

9. Accordingly, the Court would grant a declaration that the respondents have acted wrongfully in expending or arranging to expend public moneys on the website, booklet and advertisements in relation to the Referendum on the Thirty First Amendment of the Constitution (Children) Bill, 2012, in a manner which was not fair, equal or impartial. The Court does not consider it either appropriate or necessary to grant an injunction, as it is to be assumed that the respondents will cease distributing and publishing the material.

Callely -v- Moylan & ors

[2014] IESC 26

O’Donnell J / Clark J

Justiciability
29. This case self-evidently raises extremely important issues in relation to the separation of powers. As Binnie J. observed in Canada in Canada (House of Commons) v. Vaid size=”2″ face=”Verdana”>: [2005] 1 S.C.R. 667 at para. 4:
“There are few issues as important to our constitutional equilibrium as the relationship between the legislature and other branches of the State on which the Constitution has conferred powers, namely the executive and the courts.”
It is an important part of the principle of government by separation of powers that it falls to the least powerful and dangerous branch to define the proper area of functioning of each of the branches of government. In entrusting this task to the judicial branch, the Constitution places considerable trust in the courts to identify and maintain the proper areas of activity of each branch including their own. But the obligation to respect the legitimate sphere of activity of each branch of government is not reserved to the judiciary. It applies equally to each of the other branches. As McLachlin J. observed in New Brunswick Broadcasting v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319 at p. 389:
“It is fundamental to the working of government as whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.”
30. The High Court (O’Neill J.) allowed Senator Callely’s claim and made an order quashing the report concerned together with certain consequential orders. The Committee and Seanad Éireann have appealed against that decision to this Court. Before the High Court there were two main areas of controversy. The first concerned the extent to which it was permissible for the courts, in exercise of the judicial power under the Constitution, to review a report of a House of the Oireachtas or a committee thereof. It was argued on behalf of the Committee and Seanad Éireann that such issues were non-justiciable. Second, on the assumption that the relevant issues were justiciable, there was a dispute as to whether, on the facts and the law, there had been an error of law or a breach of Senator Callely’s entitlement to a fair process.
31. Senator Callely succeeded in the High Court on both areas of controversy. The Committee and Seanad Éireann have appealed to this Court suggesting that the trial judge was incorrect both in so far as he held that the relevant issues were justiciable and, even if this Court were to find the issues to be justiciable, in holding that there was any error of law or lack of fair procedure such as would justify quashing the report.

32. The finding of justiciability plainly raises very important questions and it is to that issue that we first turn. In order to fully understand the question which this Court must now address under that heading, it is important to set out the argument made in respect of justiciability before the High Court and the findings of the trial judge in that regard.
The Argument in Favour of Justiciability
33. It is first appropriate to note the terms of Article 15.10 of the Constitution which is in the following terms:

36. The broad theory, on the other hand, which appears to have been accepted in the High Court, is to the effect that the proceedings of the Committee, even if conducted pursuant to standing orders and explicit rules, would nevertheless have been reviewable at the suit of a member because of the assertion that his constitutional right to reputation may be affected by the finding. Thus at para. 47 of the High Court judgment it is said:

“It would seem to me that the boundary between exclusive roles of the Oireachtas, on the one hand, and the High Court on the other, appropriately respecting the separation of powers principle, does not exclude access to the courts where a member of the Oireachtas, in circumstances such as those of the applicant in this case, seeks the protection of the Constitution in vindicating his constitutional right to his good name and to natural justice and fair procedures.”
In addition, at para. 70 the trial judge went on to say the following:
“[A] consideration of the subject matter of this investigation…and also a consideration of the nature of the investigation…lead, in my view, as will be discussed hereunder, to a conclusion that investigations of this type are not within the exclusive realm of the Oireachtas, so as to oust the jurisdiction of the courts under Article 15.10.”
37. The constitutional significance of this conclusion is considerable. Hitherto it had been assumed (and as we shall see, not least by a series of decisions of the Superior Courts) that there was an area of activity within the legislative branch of government that was beyond judicial review even if the precise boundary of that area was a matter of debate. However, if this broader view holds sway, then the words of one commentator are apposite:
“The proceedings of the Houses vis-à-vis their own members are quintessentially the precise forum contemplated by Article 15.10, they arise in a context closely proximate to the conduct by the Houses over their own business and order, and there are strong arguments of policy as to why the Houses should exercise an exclusive and final authority over matters of their own internal discipline. Indeed, if a Deputy or Senator can mount a challenge of this kind to an internal decision of the Houses, one wonders what – apart from Oireachtas housekeeping such as the Order of questions and administration of debate – is actually consigned exclusively to their jurisdiction by the provision (and therefore, at all).” (see Brian Murray, SC, “Judicial Review of Parliamentary Proceedings and Procedures Under the Irish Constitution” in Carolan & Doyle eds., The Irish Constitution: Governance and Values size=”2″ face=”Verdana”>, (Dublin; Thomson Round Hall; 2008 at p. 147,179).
Thus, a fundamental issue that has to be addressed is whether there is any area of exclusive competence of the Oireachtas and therefore non-justiciability, and if there is, its theoretical basis and the basis on which it can be said not to apply in the present case. It seems to us that in truth, it must be accepted that the logic of the broad theory means that there is no area, or virtually no area, of non-justiciability. We propose therefore to address the broad theory first, before considering whether the decision in favour of Senator Callely could be justified on the narrow ground. Indeed, the narrow argument can only properly be addressed against the background of the determination of the broader question of what the separation of powers entails as a matter of principle.
Discussion on Broad Theory
38. It is important to start by noting the fundamental constitutional architecture provided for in Article 6.1 of the Constitution. All government power is said to be broken down into the legislative, executive and judicial powers which powers in turn are to be exercisable only by organs of State established by the Constitution. As Ó Dálaigh C.J. pointed out in In Re Haughey [1971] I.R. 217 (p. 250), “the Constitution of Ireland is founded on the doctrine of the tripartite division of the powers of government”. The same judge had previously, in Melling v. Ó Mathghamhna [1962] I.R. 1 (p. 39), referred to that tripartite separation of powers as having “express limitations on the powers alike of legislature and executive over the citizen”. It might be added in this context that the principle imposes limitations on the extent to which any branch can interfere with another.

39. Thus, the tripartite division of power requires an analysis of what can properly be said to form part of the respective legislative, executive or judicial powers contemplated by Article 6. To some extent that division stems from the inherent nature of those respective powers. However, the express terms of the Constitution provide some further definition of the separate roles of the respective organs of State. In addition it is important to recall, as was pointed out by O’Donnell J. in Pringle v. Ireland [2012] IESC 47, that, as he put it at para. 17:

“[I]t is perhaps noteworthy, as the late Professor Kelly was wont to observe, that the form of separation of powers adopted in the Irish Constitution was not the hermetically sealed branches of Government posited by Montesquieu, but rather involved points of intersection, interaction and occasional friction between the branches of Government so established. Thus, by way of illustration only, the Executive appoint the Judiciary and the courts rely on the Executive to execute their judgments; the courts for their part review the acts of both the Legislature and the Executive for compatibility with the Constitution; and the Executive in turn is accountable to the Dáil and in practice commands it; and the members of the Government are required to be drawn from the Legislature. In the architecture of the 1937 Constitution therefore, the respective branches did not exclude each other entirely.”
Thus there is a separate question which arises once a particular power has been allocated to a specified organ of Government. That question is as to the extent, if any, which the Constitution permits any role for either of the other organs of government in the area concerned.
40. It is necessary to address at this point an objection that might in other circumstances have considerable, even dispositive, force. It is said that the principle of non-justiciability of proceedings in the Oireachtas is not referred to explicitly in the Constitution, and therefore does not exist. Adapting the words of McCarthy J. in The Attorney General v. Hamilton [1993] 2 I.R. 250 it is “the positive argument – if it’s not there it isn’t so” (p. 285). That argument cannot however have much, if any, impact here. First, the respondent’s argument in the High Court, and the High Court judgment, accept the principle that there is some area of non-justiciability. The literalist objection therefore has as much (or as little) force in relation to that argument, as to the respondent’s contention. Indeed, an important question that must be addressed if the respondent’s argument is to be accepted is the theoretical justification for the area of non-justiciability except, and an explanation why it does not extend to the claim here.

41. Second, the principle of separation of powers while fundamental must itself be deduced from the language and structure of the Constitution. As is observed in J.M. Kelly: The Irish Constitution (Dublin; Tottel Publishing; 4th Edition; 2007) (p.108) Article 6 of the Constitution while often rhetorically invoked as the basis of the principle of separation of powers, merely describes, rather than prescribes, the principle. The nature of the separation of powers required under the Irish Constitution, therefore, must be deduced from the terms of the constitutional text, the constitutional structure, and the functions of government envisaged by it.

42. Third, and more specifically, it has been held that the principle of separation of powers apparent from the Constitution, imposes significant restraints upon the three branches, even though those restraints are not set out in express terms in the constitutional text. As Morgan in The Separation of Powers in the Irish Constitution (Dublin; Round Hall; 1997) observed:

“Conceptually … the policy underlying the independence of the judiciary is best regarded as a component, indeed in practice far and away the most important component, of the separation of powers.” (p. 10)
In the landmark case of Buckley v. Attorney General [1950] I.R. 67, the High Court and Supreme Court held that the power of the legislature to make laws did not extend to enacting legislation which sought to determine the outcome of litigation then before the courts. This was so notwithstanding what appeared to be the substantial body of legislation which was made since the coming in to of existence of the State, which was advanced in argument by counsel for the Attorney General. A case, which was the simplest of actions known to the law – an ex parte application for the payment out of funds – established a major constitutional principle. In the High Court Gavan Duffy J. stated:
“I assume the Sinn Fein Funds Act, 1947, under which this application is made, to have been passed by the Legislature for excellent reasons and as a matter of course, and give to the Oireachtas all the respect due to the legislative assembly of the nation; but I cannot lose sight of the constitutional separation of powers. This Court can, in deference to an Act of the Oireachtas, abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized.” (p. 70)
In the Supreme Court, O’Byrne J. observed that:
“The manifest object of this Article [Article 6] was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised 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.” (p. 81)
Accordingly, he concluded that:
“The substantial effect of the Act is that the dispute is be 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 operation of the Courts in a purely judicial domain.” (p. 84)
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.
43. In The Attorney General v. Hamilton, the court considered a claim to cabinet confidentiality, itself not expressly stated in the Constitution. Finlay C.J. stated:

“The doctrine of the separation of powers under the Constitution has been identified by this Court as being both fundamental and far reaching, and has been set out in various decisions of this Court in very considerable detail. Yet, it undoubtedly flows from Article 6 of the Constitution …
The identification of the doctrine of the separation of powers is based on a necessary interpretation of the consequence of these two somewhat terse sections of the Constitution. It is particularly derived from the opening phrase in Article 6.1: “All power of government, legislative, executive and judicial” and it has led to a very rigid division of rights and responsibilities between the three organs of State, and has led to the necessary categorisation of State activity as falling within one or other of these three separated areas. Elaborate principles of the relationship between the three organs of State have flown from this doctrine.

The development of the doctrine of the separation of powers, without any express provision in the words contained in Article 6, or in any other provision of the Constitution to designate it, seems to me to justify a development of the claimed confidentiality for discussions at Government meetings for the provisions dealing with collective responsibility and collective activity.” (pp. 267-268)

In the same case O’Flaherty J. said:
“So we are called upon to recount again the place of each of the three essential organs of State: legislative, executive and judicial. I believe that each must respect the sphere of influence of the other so that the essential symmetry of the separation of powers which is inherent in Article 6 of the Constitution is preserved.” (p. 299)
The provisions of Article 28.4.3 adopted in the aftermath of this decision while providing for specific limitations on the extent of cabinet confidentiality nevertheless make express provision for the principle. There are also other examples of the influence of the principle of separation of powers. The presumption of constitutionality afforded to the Acts of the legislature and executive is one example. On the other hand the provisions of Order 56 of the Standing Orders of the Dáil limiting commentary on matters before the courts, is perhaps an example in another context. It is not necessary or desirable to attempt a full account of the manner in which the principle applies. It is sufficient for present purposes to observe, that the principle of separation of powers, however difficult to ascertain and delimit in particular circumstances, is a necessary and fundamental component of the Constitution, to be deduced from the structure and language of the Constitution itself.
44. It is against that background that it is necessary to turn to Article 15. Of course, Article 15.2.1 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. The primary legislative function is just that – making laws. The judicial power is, of course, given a role in relation to legislation in that the Constitution expressly confers on the High and Supreme Court a jurisdiction to determine whether laws are consistent with the constitution and, if not, by declaring inconsistency, the power to render the laws invalid. Thus while legislating is the primary and exclusive constitutional function of the Oireachtas it is subject to a measure of judicial control.

45. But it is clear from a reading of Article 15 as a whole that the constitutional role of the Oireachtas is not confined solely to law making. For example over and above the business of legislation, Article 15.6 confers an exclusive right to raise and maintain military or armed forces on the Oireachtas, war cannot be declared or participated in without the assent of the Dáil (28.3.1), members of the Oireachtas have a representative function (see e.g. Article 16.2.1) and members of the Dáil have a function in holding the Government to account (28.4.1). A useful list of the very differing roles and functions of the Oireachtas, and members of the Oireachtas, as contained in the judgment of McGuinness J. in Maguire v. Ardagh [2002] 1 IR 385, pp. 612-615. It is apparent therefore, that the proper role and function of the Oireachtas, and members of the Oireachtas, cannot be limited to the business of the consideration and passage of legislation, important though that is.
The Text of the Constitution
46. There are a number of particular provisions of Article 15 that deserve consideration in the present context. Article 15.10 has already been quoted above, and 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.”
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.”
Article 15.13 states:
“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 amendable to any court or any authority other than the House itself.”
Finally, Article 15.15 provides:
“The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if any) in connection with those duties as the Oireachtas may determine.”
47. A number of observations may be made about these provisions in the context of this case. First, it is apparent that the question of travel to and from the Houses of the Oireachtas, and the making of allowances for such travel, is a matter considered sufficiently important to require constitutional expression. Second, the reference to attaching penalties for infringement of rules and standing orders pursuant to Article 15 clearly show that the Houses of the Oireachtas have a disciplinary function. Indeed, Leo Kohn in his celebrated work, The Constitution of the Irish Free State (London; Allen & Unwin; 1932; pp. 230-231) observed of Article 20 of the Irish Free State Constitution (which was in identical terms to Article 15.10), in reasoning that was influential in the decision in Maguire v. Ardagh, that the right to impose a penalty could not be given a broad meaning so as to permit the exercise of power over members of the public. It was concluded therefore that the power must be limited to a disciplinary function in respect of members of the Oireachtas.
48. It follows from even this superficial consideration of the constitutional text as interpreted that the imposition of penalties on members of the Houses of the Oireachtas in respect of an inquiry into claims for allowances in respect of travelling to and from the Houses is squarely within the constitutional function of the Houses of the Oireachtas. It should be observed however that it is necessary in every case to determine the proper scope of the power conferred upon each branch of government. This is not a function which can be determined by the individual branch itself. It remains emphatically a function of the administration of justice to determine the proper scope of activity accorded by the Constitution to each of the branches of government, and any consequential privilege, immunity or liability.

49. It might be also observed that this interpretation of the Constitution is itself consistent with principle. In Haughey v. Moriarty [1999] 3 IR 1 (p. 32) this court stated:

“The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic state. These powers and the exercise thereof may of course be limited by the provisions of the Constitution.”
In Canada (House of Commons) v. Vaid the Canadian Supreme Court had to consider whether a claim by a chauffeur dismissed by the speaker of the legislature was within parliamentary privilege. The test applied was that certain privileges of parliament could be upheld although not referred to explicitly in either the 1982 Charter or the Constitution Act of 1867, if they could satisfy a test of necessity, which it was for the courts to determine. Distinguishing sharply between the application of parliamentary power to outsiders, and decisions made by parliament affecting its own members, the court held that the claim of the chauffeur was not captured by parliamentary privilege, but a matter related to discipline of members would be. At para. 46 Binnie J. said:
“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 fulfillment 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.”
Binnie J. also stated:
“In my view, the references to dignity and efficiency and also linked to autonomy. A legislative assembly without control over its own procedure would, said Lord Ellenborough CJ almost two centuries ago, “sink into utter contempt and inefficiency” (Burdett v. Abbot (1811), 14 East 1, 104 E.R. 501, at p. 559) “Inefficiency” would result from the delay and uncertainty would inevitably accompany external intervention. Autonomy is therefore not conferred on Parliamentarians merely as a sign of respect but because such autonomy from outsiders is necessary to enable Parliament and its members to get their job done.” (para. 29)
At para. 29 the same judge included among the categories of privilege required by such necessary autonomy “disciplinary authority over members”. At paras. 20-21 he said:
“It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter. These are truly matters “internal to the House” to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.
Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected.”

50. This analysis has clear echoes in the Irish constitutional context. Morgan in The Separation of Powers in the Irish Constitution (p. 222) observed that although there is no express provision in the Constitution akin to that of the Bill of Rights 1689 providing that proceedings in Parliament ought not to be impeached in any court, the same result may be reached by the principle of the separation of powers. The constitutional provisions in the Irish Constitution were “mainly concerned about protecting individual members”. However, the author posed the question:
“Does not the separation of powers bar the courts from intervening in the operation of the Oireachtas? For if one examines the policy underlying the law on historic development of parliamentary privilege – the policy of the freedom of parliament from intimidation or even influenced by: the King, the King’s court; the mob; the press; or any other agency which might interfere with the untrammeled discourse of public representatives – one finds a substantial overlap with the separation of institutions aspect of the separation of powers.”
The same author observes that the courts have distinguished carefully between whether or not the case involves an exercise of the legislative power. The foregoing analysis suggests therefore that disciplinary action of the Houses of the Oireachtas in respect of its members is within the constitutional function of each House.
51. A further observation arising from a consideration of the provisions of Article 15 is that there appears to be a sharp conflict between the reliefs sought by the respondent in these proceedings and the terms of the Constitution. Thus, the first two reliefs sought by the respondent’s statements of grounds were in the following terms:

“(1) An order of certiorari quashing the Committee on Members Interest of Seanad Éireann’s Report “of the results of an investigation into complaints concerning Senator Ivor Callely” dated the 4th of July 2010. And,
(2) An order of certiorari quashing any resolution of Seanad Éireann moved in Seanad Éireann and/or passed in Seanad Éireann on foot of the respondents’ investigations and the “report of the results and investigation into complaints concerning Senator Ivor Callely” dated 14th of July 2010.”

In support of these reliefs the respondent exhibited and laid heavy reliance, in his grounding affidavit, on statements made by a number of members of the Committee during the course of the Committee hearing, and statements made by a Senator proposing the motion in the Seanad to adopt the report and to impose the sanctions contained in it.
52. It is difficult to reconcile the reliefs sought with the explicit terms of Article 15.12. It appears to be generally accepted that the report of the Committee of the House are entitled to the same status and privilege as the report of the House itself. See Casey, Constitutional Law in Ireland (Dublin; Round Hall; 3rd edition; 2000; p. 134) and Kohn, The Constitution of the Irish Free State (p. 229). Thus the report sought to be quashed was a report of the House itself entitled to privilege under Article 15.12. In any event, in this case the report was adopted and acted upon by the Seanad itself. Furthermore, it has been held that the privilege conferred by Article 15.12 is an extensive one and is not limited to privilege from defamation. The Irish text makes it clear that privilege here means privilege from any legal proceedings (táid saor ar chúrsaí dlí cibé áit a bhfoilsítear) and as observed by Finlay C.J. in The Attorney General v. Hamilton (No.2) [1993] 3 I.R. 227 (p. 268) in rejecting an argument that the privilege in Article 15.12 was limited to defamation:

“[The relevant subsections of Article 15] very clearly indicate that there are a great variety of legal proceedings which could follow upon the making of an utterance over and above a claim for damages for defamation, were it not for the privilege and immunity granted by these articles.”
53. Furthermore, Senator Callely in these proceedings has sought relief against individual members of Seanad Éireann and in doing so has relied upon statements made by them in the course of proceedings in Seanad Éireann. However, under Article 15.13 such persons are not amenable to any court or authority other than the House itself for utterances made. This is an individual privilege in addition to the privilege attached to the utterance itself wherever published, pursuant to Article 15.12. It is clear that, in the words of Article 18 of the 1922 Constitution from which this provision is drawn, a member shall not “in respect of any utterance in either House, be amenable to any action or proceeding in any Court other than the House itself”.
54. The statement of opposition on behalf of the respondent did not raise either Articles 15.12 or 15.13 and accordingly the parties were invited by the court to return to make submissions on the impact if any of those Articles on these proceedings. Consistent with the posture of their pleadings, the respondents did not seek to rely on Articles 15.12 and 15.13 in defence of these proceedings. That may be so as a matter of pleadings between the parties but there remains a fundamental difficulty for this, or any court established under the Constitution, when the relief sought appears to be precluded by the terms of the Constitution itself. Accordingly, even if persuaded that the proceedings before the Committee and in the Seanad were justiciable, we would not be prepared to make orders in the form sought by the respondent and would have required careful argument as to the relief which it would be appropriate to have granted without contravening the Constitution.

55. But even apart from this point, Articles 15.12 and 15.13 are also relevant to the question of the interpretation of Article 15.10 and the separation of powers more generally. Any theory that the internal operation of a House of the Oireachtas dealing with its own members must be justiciable because the constitutional right to a good name of a member may be affected, must explain how the Constitution could contemplate such justiciability when it expressly protects from legal action of any sort, any individual utterance by a member, and any collective report by either House.

56. This leads to a further important observation about the provisions of Articles 15.10, 12, 13 and 15. It was apparent that those provisions combined to place the Houses of the Oireachtas and the members for the time being thereof, in a distinct and special legal position. Like other provisions of the Constitution, they operate to place citizens in a position where they are conferred with additional powers, responsibilities and functions, and on occasion subject to additional liabilities. Thus, for example, the President takes precedence over all over citizens under Article 12.1 but is also subject to significant restrictions in respect of his or her right to travel (Article 12.9) and free speech (Article 13.7.3) and shares with judges appointed under the Constitution a restriction on engaging in other offices of emolument, which does not apply to ordinary citizens (Article 12.6.3). In the case of members of the Oireachtas, they have very significant privileges in respect of their individual and collective utterances, and are given significant exemption from criminal law in the shape of privilege from arrest. At a minimum therefore it should not be surprising if the law attaching to the incidence of their membership of the most important collected body in the State, is itself distinct.
Case Law
57. It follows that the Constitution defines areas within the exclusive competence of each of the powers of government which go beyond the narrowest definition of those powers and includes areas which are either inherently part of the function concerned by virtue of being inextricably linked to that function or must properly be said to fall within the function concerned because of the terms of the Constitution itself. In that context we have no doubt but that determining travel and subsistence expenses and putting in place a regime to ensure that they are properly policed falls within the legislative power conferred on the Oireachtas. That is not, however, an end to the matter. As noted earlier, the fact that a particular function lies within the sphere of one or other organ of government does not necessarily mean that the exercise of that power may not be subject to some degree of interaction with or scrutiny by another power of government. The fact, for example, that a particular function can properly be characterised as part of the executive function conferred on the government itself does not mean that it may not be subject to review in the courts or subject to a requirement to abide by legislation properly passed by the Oireachtas, scrutinised, if necessary, for its consistency with the Constitution by the courts. While the imposition of a policing regime with appropriate penalties in respect of funding made available to members of the Oireachtas to enable them to perform their functions is clearly part of the legislative function contemplated by the Constitution, the real question which is at the core of these proceedings is whether it is a function which is exclusively conferred on the Houses of the Oireachtas or rather while conferred on the Houses, is amenable, nonetheless, to judicial review.

58. In that context it is appropriate to consider the jurisprudence of this Court concerning the extent to which it may be appropriate for one organ of government to review or have a role in the exercise by another organ of its constitutional role.

59. There are, of course, cases (to which it will be necessary to turn in due course) where it has been determined that judicial scrutiny is constitutionally mandated notwithstanding that the matter being scrutinised represents the exercise by either the legislature or the executive of their respective constitutional functions. Having concluded that the fixing of expenses connected with the performance by members of the Oireachtas of their functions and the provision of penalties for any abuse of such a system falls within the legislative power conferred on the Oireachtas (or, in the specific circumstances of disciplinary matters, by virtue of Article 15.10, on each House of the Oireachtas separately) it follows that the real question which needs to be addressed is whether the exercise of that function is one which is constitutionally conferred on the Oireachtas and its Houses in a manner which excludes interference by either of the other organs of government. In particular the question which must be addressed is whether interference by the judicial power by the exercise of judicial scrutiny is excluded.

60. Judicial scrutiny of matters occurring within the Oireachtas has, of course, occurred in the past. Most notably in In Re Haughey this Court scrutinised, on the basis of fair procedures, the conduct of a committee of inquiry within the Houses of the Oireachtas. Thus, at the level of principle, it is clear that there are aspects of the actions which may be taken by the legislature which are subject to judicial scrutiny. However, it is important, in that context, to go back to the comment of Ó Dálaigh J. in Melling v. Ó Mathghamhna which noted the limitations on the power of the legislature “over the citizen”. Judicial scrutiny was invoked in In Re Haughey by a citizen who complained about the manner in which the legislature was exercising its power over him.

61. A key difference between the parties on this appeal was the extent to which it might be said that the Constitution and the jurisprudence of the courts create a distinction between the exercise by the legislature of its constitutional power insofar as it affects, on the one hand, citizens who are not members of either House and, on the other hand, members of the Houses of the Oireachtas. That judicial scrutiny is available to a citizen who is not a member of either House and who may be subjected to aspects of the legislative power can hardly be doubted in the light of the consistent jurisprudence of this Court. The real issue of controversy is as to whether the same principle applies to the exercise of similar aspects of the legislative power over members of the Houses.

62. Prior to the decision of the High Court in this case, the position in relation to actions taken by committees of the Oireachtas in respect of members of the Oireachtas appeared to have been stated most clearly by McGuinness J. in Maguire v. Ardagh, who while commenting on the various committees of each House administering standing orders, observed at p. 629:

“All these Committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.”
63. However, that dictum does not, by any means, stand in isolation. 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. If the respondent is to succeed in these proceedings, it must necessarily mean disavowing such dicta, and distinguishing, and if necessary overruling, any contrary decision. In considering the relatively extensive jurisprudence therefore, it is necessary to keep in mind the two distinctions offered by the applicants, and adopted by the High Court. First, that the decided cases did not involve any proceedings by a member of the Houses of the Oireachtas and accordingly any statements as to a distinction between the position of members and non-members are merely obiter dicta and moreover wrong. Second, it is argued that any cases or decisions tending to suggest an area of nonjusticiability did not involve the assertion of any individual personal rights of the citizen (whether member or non member), which it is argued arise in this case.
Kohn: The Constitution of the Irish Free State
64. The earliest statement of the limited nature of parliamentary privilege in Ireland is contained in Kohn’s The Constitution of the Irish Free State. His analysis has been influential and was relied on in Maguire v. Ardagh. In particular, the statement that the parliament, established by the Irish Free State Constitution, does not have the attributes of a sovereign authority which had accrued to the House of Commons during its conflict with the Crown, but rather was invested by the Constitution “with comprehensive and adequate powers to regulate its business and to maintain its authority” (p. 230) but no more, could be said to be a cornerstone of the decision in Maguire v. Ardagh which held that the Oireachtas did not have the power to conduct a fact finding inquiry which could make findings adverse to the good name of a citizen. However, that issue does not arise here. Instead the question here is of the justiciability of something which the Oireachtas undoubtedly has power to do, namely discipline its members by suspension. In our view, it is instructive therefore that Kohn appears to take the view that the Oireachtas is a master of its own internal affairs:

“Both Houses of the Oireachtas have full power to regulate their procedure by making and amending their rules on standing orders. In this sense the Irish parliament, like the English, enjoys the privilege of “exclusive cognisance of matters arising in it”. (p. 230) (Emphasis added)
This is a particularly important and general statement. It asserts the existence of exclusive cognisance of matters arising within the Houses of the Oireachtas, and thus, that such matters are not amenable to judicial review. Kohn’s work is also the earliest example of a distinction being made between the exercise of powers in respect of members and non-members. Thus, as already observed, he considered that the reference in Article 20 of the 1922 Constitution to the attachment of penalties (in identical terms to Article 15.10) was to be construed as limited to a disciplinary function over members and possibly persons disrupting business, but not more generally. This analysis was repeated in the 1967 Report of the Committee on the Constitution. This, it might be observed, is a departure from a purely literal interpretation of the provision which might suggest a broader sweep to the Article.
Wireless Dealers Association v. Fairtrade Commission (Unreported, Supreme Court, 14th March 1956)
65. In this case the applicants sought the passage of legislation which if asserted would be immediately damaging to the business of the plaintiff. The claim was rejected both in the High Court and the Supreme Court. Ó’Dálaigh J., as he then was, explained the decision in that case on the basis that:

“The Constitution makes each of the two Houses of the Oireachtas complete masters of its own deliberations … The High Court while granted a general jurisdiction pronounced in the Constitution … exercises no function with regard to the deliberations of the Oireachtas.” (Emphasis added)
It was significant that Ó’Dálaigh J. sought to address the claim in a constitutional context and expressed his conclusions quite generally. The High Court, notwithstanding its extensive jurisdiction exercised no function in relation to the deliberations of the Oireachtas. This case, while an unreported judgment, has subsequently been treated as an authoritative statement of the general principle and has been relied on in a number of cases such as Finn v. The Attorney General [1983] I.R. 154, Slattery v. An Taoiseach [1993] 1 I.R. 286 and Maguire v. Ardagh. This case cannot be distinguished on the basis that no constitutional right was being asserted: that was the very claim being made by the unsuccessful applicants in Wireless Dealers v. Fairtrade Commission (hereinafter “Wireless Dealers”). The argument made was that the passage of the legislation would damage their constitutional right to property and that claim in any other context would at least have entitled them to seek an injunction. If it is alleged that any other public law body is about to act ultra vires its powers then it is, in principle, possible to seek an injunction. Here, such a claim was refused in limine because of the lack of jurisdiction of the court in relation to the deliberations of the Oireachtas.
66. The Report on the Committee on the Constitution 1967 (Dublin; Stationery Office) came 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 it rules;…”. (para. 40)
This echoes Kohn’s approach.
O’Malley v. An Ceann Comhairle [1997] 1 I.R. 427
67. In this case, a member of the Oireachtas had sought to raise a question relevant to the operation of an export credit scheme for beef which subsequently became a matter of significant controversy during the tribunal of inquiry to inquire into the beef processing industry. The Ceann Comhairle wrote to the applicant saying that he was disallowing part of the question as it would involve repetition in light of answers already received from the Minister. However, Order 33 of the Standing Orders of Dáil Éireann, while giving power to the Ceann Comhairle to examine every question put, only permitted him to amend any question “after consultation with the member responsible for the Question”. It thus appeared that there had been a clear breach of the provisions of standing orders. The applicant sought judicial review and was represented by distinguished counsel. However, both the High Court and the Supreme Court refused leave to seek judicial review of the decision. Barron J. in the High Court considered such a review was inappropriate having regard to the separation of powers. He considered that the exercise of the function by the Ceann Comhairle was an internal matter for Dáil Éireann itself. He also pointed out that it appeared to him that once the Dáil had been dissolved, even the right to challenge the Ceann Comhairle ceased since the affairs of that Dáil had been terminated. In the Supreme Court, O’Flaherty J. (with whom Murphy and Lynch JJ. agreed) upheld the decision of Barron J. observing:

“How questions should be framed for answers 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 5, s.10 of the Constitution.” (p. 431)
68. It should be observed that this is a case which cannot be distinguished on the grounds that it involved the rights of a non-member. Here, the complaint was made in relation to the manner in which an officer of the Oireachtas had dealt with a person, then a member. While it might not be said that this necessarily raised any question of constitutional rights, it cannot be said that it did not raise important constitutional issues. Deputy O’Malley was arguably exercising two important functions as a member of the legislature, that of representation and that of holding members of the government to account, when he addressed his question to the Minister. If O’Malley v. An Ceann Comhairle was correctly decided therefore, it must stand for the proposition that the power of a House of the Oireachtas to make its own rules and standing orders necessarily involves exclusive cognisance of challenges and complaints in relation to them. In the words of one commentator; “What O’Malley does make clear is that a patent violation of the Standing Orders themselves does not give rise to Judicial Review at the instigation of a member of the Houses because of the separation of powers.” (See Murray “Judicial Review of Parliamentary Proceedings”)
Haughey v. Moriarty [1999] 3 IR 1
69. In the High Court in this case, the applicant sought to demonstrate that the Seanad had been improperly convened and that past resolutions pursuant to the Tribunals of Inquiry (Evidence) Act 1921 were invalid. Geoghegan J. held that it was not permissible to consider this issue:

“[I]t seemed to me that these matters were not justiciable in the courts on the grounds of the constitutional separation of powers. The Dáil and the Seanad regulate and enforce their own procedures.” (p. 16) (Emphasis added)
While this was a case which involved a former member of the Oireachtas and his family, it is properly characterised as one involving non-members. But once again however, it cannot be distinguished as one which did not involve a consideration of the Constitution or indeed constitutional rights. It could not be said that the Tribunal of Inquiry and the making of orders of compulsion in relation thereto did not involve the constitutional rights of the citizens involved.
Maguire v. Ardagh [2002] 1 IR 385
70. The most significant case in this line of authority is Maguire v. Ardagh. It is suggested by the respondent in the present case that the decision in this case is merely a necessary extension of the decision in Maguire v. Ardagh. In order to analyse that contention it is necessary to keep in view the central issues which were raised in that important case. The fundamental issue raised by the plaintiffs in that case was their contention that, on a true interpretation of the Constitution, the powers of the Oireachtas did not extend to making inquiries having as their object the finding of facts in relation to the affairs of individual citizens. It is important to observe that this issue does not arise in this case. There is no question but that the exercise by the Seanad of powers of inquiry and, if necessary, discipline over members and in respect of matters relating in particular to allowances for travel to and from the Houses of the Oireachtas, is a matter plainly within the constitutional functions of that House of the Oireachtas. In order, however, to come to its conclusion, the court also had to address an argument raised by the Houses of the Oireachtas to the effect that proceedings in the Oireachtas were not amenable to judicial review in any way and were non-justiciable in those proceedings. While the Supreme Court upheld the claim of the applicants on the first issue by a majority, all members of that court, and the divisional court, were unanimous in rejecting the contention made on behalf of the Committee. However in doing so, all members of the court, and the High Court who addressed this issue, distinguished sharply between cases involving citizens and those involving members of the Oireachtas.

71. The divisional court (Morris P., Carroll and Kelly JJ.) held that in “…matters internal to the workings of parliament in carrying out its legislative power or alternatively in dealing with its own members” the Houses of the Oireachtas were not amendable to judicial review (p. 413). The divisional court stated:

“Whatever about the way in which parliament regulates its own members, a citizen cannot be subjected to a parliamentary process unless it is lawful, within jurisdiction and is fair.” (p. 415) (Emphasis added)
72. All members of the Supreme Court who addressed the issue agreed with Keane C.J. who said that notwithstanding the absence of express provisions exempting the actions of the Oireachtas from scrutiny in the same way as specified in Articles 15.12 and 15.13, there was nevertheless an area on non-justiciability derived from the separation of powers:
“That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution. Specifically, the courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction to Article 15.10 to make its own rules on 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.… : see the decision of this court in Slattery -v- An Taoiseach. It was also held by the former Supreme Court in Dealers’ Association -v- Fair Trade Commission, that the courts could not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in the raising of taxation and the distribution of public resources, as more recently made clear by this court in T. and Others -v- Minister for Education and Science and Others. … Different considerations apply however, where, as here, the Oireachtas purports to establish a committee empowered to inquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not members of either House. An examination by the courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.” (pp. 537 – 538)(Emphasis added)
73. McGuinness J. seemed to expressly conclude that all actions of the Oireachtas which impinge on the rights of non-members were justiciable but that conversely, matters of internal regulation and discipline, were not. At pp. 628 – 629 McGuinness J. (in a fuller version of the passage already cited) said:
“It is clear from this sub-article that, as submitted by counsel for the applicants, the Oireachtas “makes its own rules for its own members.” These rules are in the main set out in the standing orders of both Houses. Various committees of each House administer these rules and may provide for penalties for their breach. Committees such as the Committee on Procedure and Privilege and the Committee of Selection are long established and are known as standing committees. In recent years another such standing committee has been established – the Committee on Members Interests of Dáil Éireann. All these committees, all investigations carried out by them and all penalties imposed by them (or by the Dáil or Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these matters are non-justiciable in accordance with Article 15.10.” (Emphasis added) The Committee in these proceedings is the Seanad counterpart of the Dáil Committee referred to.” (Emphasis added)
This is perhaps the strongest statement on this issue in the judgment. It is not questioned by any other judgment and it is directly contrary to Senator Callely’s submissions or the decision of the High Court. Moreover, it is consistent with the other judgments in Maguire v. Ardagh. At p. 737 Geoghegan J. spoke to similar effect:
“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 non-justiciability principle stops there. If there is some essential procedural step which a house of the Oireachtas or a committee thereof has to take before rights of an outsider, that is to say a non-member 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)
These statements in an important recent case where the question of non-justiciability of proceedings in the Oireachtas was subjected to close scrutiny, must be entirely disavowed if the respondent is to succeed.
Howlin v. Morris [2006] 2 IR 321
74. In this case, Hardiman J., in a minority concurring judgment, adopted the view that the distinction drawn in the judgments in Maguire v. Ardagh between the application of rules and procedures to members and to non-members, was a “vital” one. He said at para. 48:

“On the small numbers of occasions when the courts have been prepared to supervise the orders or procedures of an Oireachtas body it has been at the suit of non-members whose rights were affected.… a decision on whether to grant immunity from otherwise lawful disclosure in respect of what are claimed to be the private papers of a member, or to refrain from doing so, is that of Dáil Éireann itself or its lawful delegate. If such decision does not affect the rights of anyone who is not a member of Dáil Éireann, that decision appears to be final and unreviewable.” (Emphasis added)
75. Together these dicta add up to a very substantial and consistent body of authority which would be overturned if Senator Callely were to succeed on the broad theory. In our view it is not possible to dismiss these observations as mere dicta, and therefore not binding, and furthermore wrong. A distinction considered vital as recently as Howlin v. Morris cannot be so readily discarded. Furthermore, it seems to us that these observations, and particularly those in Maguire v. Ardagh, are closely intertwined with the reasoning in that case and the basis upon which the court rejected the claim on behalf of the Houses of the Oireachtas to general non-justiciability of all proceedings in the Houses. In any event, we consider that the distinction drawn, and the decisions made, are correct and consistent with principle . It is noteworthy that similar distinction has been made elsewhere. In Canada (House of Commons) v. Vaid size=”2″ face=”Verdana”> it was observed:
“As 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”. (para. 20)
Binnie J. quoted the well known passage from Stockdale v. Hansard (1839) Q.B. 112 E.R. 1112 (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 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.” (para. 39)
76. It was suggested in the judgment of the High Court that the distinction between members and non-members in this regard creates an impermissible discrimination contrary to Article 40.1 of the Constitution. However, and with respect, this reasoning cannot be supported. There can be few better examples of a difference in social, and indeed constitutional, function justifying a difference in treatment in the law. Members of the Oireachtas are given unique duties powers and privileges by the Constitution. It is hardly surprising that that role also involves some limitation of the rights otherwise afforded to citizens in a different context. As already observed, there are other examples in the Constitution where citizens appointed or elected to particular posts are given different privileges, obligations, duties, and on occasions, liabilities.
77. Up to now it seems to have been accepted that there is an area of non-justiciability in relation to proceedings in either House of the Oireachtas. Indeed the applicant in the present case argues that there remains some area of non-justiciability. However, if such an area exists then it must be explained how it is justified by reference to the Constitution, and why these proceedings do not fall within such area of non-justiciability. In our view no plausible explanation has been forthcoming. The broad theory is in truth itself inconsistent with any area of non-justiciability and any limitation on proceedings other than that which is expressly provided for by Articles 15.12 and 15.13. If this is correct it is difficult, indeed impossible, to reconcile such a conclusion with not merely repeated recent observations of this Court, but also with the decisions in Wireless Dealers and in O’Malley v. An Ceann Comhairle.

78. In Wireless Dealers, Ó’Dálaigh J. concurring held that to grant an injunction was an interference with the freedom to be protected by Article 15.10. But Article 15.10 does not itself protect freedom of debate. It merely gives each House the “power to ensure freedom of debate”. It is clear therefore, that Ó’Dálaigh J. deduced that the power of the House to protect that freedom of debate within the Oireachtas was protected by the Constitution itself and that as a consequence, the court could not grant any order in relation to it. It is important to consider the significance of this decision. After all, a court is entitled to grant an injunction to restrain an apprehended wrong. If for example, a county council or any other public law body was purporting to act in a manner which it was contended was unconstitutional or in any other way ultra vires size=”2″ face=”Verdana”>, then it would at least be open to a party to argue in court and have determined the question of whether or not an interlocutory injunction should be granted. However, that fundamental part of the administration of justice is not available when a plaintiff seeks to contend that the Oireachtas enacting legislation is breaching the obligation upon it under Article 15.4. This cannot be reconciled with the broader theory which suggests that when the rights of a citizen are affected (which is precisely what was argued by Wireless Dealers), the courts can intervene in, and restrain, the actions of the Oireachtas.

79. In O’Malley v. An Ceann Comhairle both the High Court and the Supreme Court expressly held that the complaint was not justiciable. The High Court expressly said that this was by virtue of the separation of powers and that appears to have been accepted in the judgment of O’Flaherty J. in this court. Again, it is self-evident that there is no express provision to this effect. It might be said that this conclusion follows from the words of Article 15.10 which refer to the right of the Houses to make their “own” rules and standing orders. However, the broad theory requires that a narrow view be taken of this power. There is no necessary reason to deduce from the power to make rules, the power to police them, enforce them, and exclude judicial review. A private club can make its own rules but that does not normally preclude a member from applying to court to restrain breach of them. Again this area of non-justiciability cannot be reconciled either with the broad theory or the reasoning process by which it is justified. Once again it is not too difficult to recast O’Malley v. An Ceann Comhairle as a constitutional claim. The claim as already observed, while made by a person who had since lost his seat, was nevertheless a claim in reliance on members of the Dáil at the relevant time. Yet his claim was not justiciable.

80. It is important to note that this reasoning does not mean that all the proceedings of the Oireachtas are immune from scrutiny or that members lose their constitutional rights. As already observed, it is emphatically the function of the courts to determine the proper boundaries of the exercise of the legislative power in each case, which, pursuant to the separation of powers requires that their proceedings be non-justiciable. This cannot be a matter for the Oireachtas, or either House. Therefore, it seems to us that the real test in each case is whether the actions sought to be subjected to review form an important and integral part of the exercise of the legislative power and does not directly affect persons outside the Houses of the Oireachtas. In that context, it is important to note that the “specified act” which can be the subject of an inquiry under s.4(1) of the 2001 Act must be an act which interferes with the ability of a member of the relevant House to carry out his constitutional function as such member. The definition of “specified act” in substance, provides for as much. Purely private activity which could not impact on the carrying out of the constitutional legislative function is expressly excluded. It is true that such activity is not confined directly to the act of legislating but, for the reasons already analysed, the legislative function seems to us to go beyond the core activity of participating in deliberations leading to the adoption of legislation. We are, therefore, satisfied that the sort of activity which can be considered to be a “specified act” is closely associated with the core legislative function and comes within an area which can legitimately be governed by rules and orders.

81. 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 was 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 Ceann Comhairle) 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 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.

82. Thus, we conclude that the separation of powers, at least in principle, means that internal disciplinary proceedings of the Oireachtas which are properly within the scope of the legislative power, are non-justiciable. If therefore, the proceedings had been brought pursuant to rules or standing orders, we conceive that they could not be challenged in these proceedings. We apprehend that this is the view of the majority of the Court. A further question however, remains as to whether the fact that the Oireachtas has chosen to legislate rather than adopt rules and orders can have any effect on the justiciability of decisions made in a case such as this. This is, in effect, the narrow basis to which we now turn.

III

Discussion on the Narrow Basis
83. It is necessary to consider if the decision of the High Court can be justified on the narrower ground of the absence of formal rules or orders. There are, it seems to us, a number of reasons why this is not possible. First, it is apparent from some of the matters cited above that the principle of non-justiciability does not solely depend upon the words of Article 15.10 but also, and perhaps more importantly, is derived from the separation of powers. Second, it is important to consider why it was necessary to provide explicitly for a power to make rules and standing orders. It seems to us that the purpose of Article 15.10 resides in the word “each”. In other words, each House of the Oireachtas, independent of the other, and of anyone else, can adopt its own rules which have the force of law. It does not require the concurrence of the other House or the President. It is therefore an important expression of the autonomy of each House, something which is indeed relevant to the larger issue in this case.
84. As Geoghegan J. observed in Howlin v. Morris, the main purpose of Article 15.10 is “to dispense with the necessity for legislation” (para. 93). But it does not follow from this that, if the rules are contained in legislation, they lose the protection of the Constitution. The function of Article 15.10 is to ensure that each House has the independent capacity to adopt its own rules and it does not have to acquiesce in rules formulated by any other body including the other House. It is worth asking why it was thought necessary to introduce legislation in this case at all. In the first place it was necessary because there were financial consequences to the machinery being established. Perhaps even more importantly, legislation was necessary because, in respect of an inquiry, whether by a committee of the Oireachtas or the Commission established by the Act, it was necessary to confer powers to summon witnesses and compel the production of documents. This is something that requires legislative authority and is beyond the competence of either House whether by rule or standing order. Finally, the Act applies of course to many persons other than members of the Oireachtas but applies the same substantive standard to all those within its scope. It was certainly convenient therefore to put all of the provisions in the same piece of legislation.

85. If each House of the Oireachtas independently and autonomously adopts the legislation including that portion of the legislation establishing both the mechanism for procedure and the substantive standard of behaviour, we cannot see any reason to say that it has not adopted its “own” rule, even if it happens to be the same rule as that applying to the other House of the Oireachtas.

86. In any event, the matter does not end there because by standing order 90 the Seanad, in our view, adopted, by standing orders, the procedures contemplated in the Act. Standing order 90 (of the 2007 Standing Orders of the Seanad) provides:

“There shall stand established at the commencement of every Seanad, a Select Committee of Seanad Éireann which shall be called the Select Committee on Members’ Interests of Seanad Éireann, to perform the functions conferred on it by the Ethics in Public Office Act, 1995.”
87. Thus, if there was any doubt about it, it seems that the Seanad, by creating a committee to operate the Act has, by standing order, adopted the rule of behaviour in the Ethics in Public Office Act 1995 (as amended). Indeed, in the High Court, the High Court judge acknowledged this and conceded that “Standing Order 90 does draw the respondents’ inquiry within the ambit of Seanad standing orders” (para.78). However, he considered that could not be conclusive because he considered the subject matter of the investigation manifestly fell outside the “normal sphere of parliamentary activity” (para. 78). This was undoubtedly, so he said; “where the subject matter of the inquiry and the potential findings of fact were likely to cause great damage to the good name and reputation and, perhaps, livelihood of the Member under investigation.” (para.78). This distinction cannot be sustained. The narrow ground is essentially a formal and technical one: the objection was to the absence of standing orders and the High Court’s (correct) acknowledgement that standing order 90 brings the proceedings within the realm in which standing orders ought to be fatal to the narrow ground. Furthermore, for the reasons set out above we do not agree that the subject matter of this inquiry fell outside the legislative function.
88. Finally, and in any event, the non-justiciability of the internal operations of the Oireachtas is not solely dependent on the existence of Article 15.10 rules; it is derived from the separation of powers. If something falls within an area of non-justiciability mandated by the separation of powers, essential to Constitutional equilibrium, it does not lose that status by the introduction of legislation which facilitates the performance of the function. Accordingly we would allow the appellants’ appeal and set aside the order of the High Court.

Review
89. However a majority of the court takes the view that the absence of rules adopted by standing orders means that the proceedings of the Committee and Seanad are justiciable. Accordingly it is necessary to address the question of whether the Report and the Resolution were unlawful or otherwise ultra vires size=”2″ face=”Verdana”> and should be quashed.
90. Shorn of much rhetoric and debate, the core of the issue is simply this: does the fact, now accepted by all parties, that former Senator Callely can be said to have complied with the provisions of the Department of Finance definition of “normal place of residence” as being “a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage, such as a few nights in a hotel”, mean that the finding of the Committee and the consequent censure by the Seanad cannot stand? This was indeed how the issue was analysed in the High Court. Paragraph 99 of the judgment sets it out with admirable clarity:

“As the respondents now accept that the applicant’s claim for expenses was in compliance with the Department of Finance definition, and as these guidelines were not ultra vires the Act of 1938, it necessarily follows that their determination is clearly based on an error of law.”
91. It is also clear that no question of any other breach of fair procedures arises. Senator Callely was given a statement of the procedures the Committee proposed to follow which set out in elaborate detail the procedures which would be accorded to him. He was given notice of the issues to be the subject of the hearing. He was invited to attend and informed that he was entitled to be represented if he saw fit. He was permitted to hear and test by cross examination the evidence given to the Committee, to give evidence on his own behalf, and to make submissions to the Committee. He participated very fully in the proceedings and as an experienced former deputy he was clearly comfortable with the manner in which the hearing proceeded. The proceedings were not adversarial. There was no prosecutor and little formality. There is no claim that the proceedings of the Committee were unfair to Senator Callely. The core question therefore is the error of law alleged. That depends first on whether Senator Callely can be said to have complied with the Department of Finance definition, and second, whether that definition is itself a correct interpretation of the provisions of the Oireachtas (Allowances to Members) Act 1938 (as amended).
92. The payment of expenses for attendance at the Oireachtas, while provided for in the Constitution, has always been shrouded in somewhat complex provisions, and has never been the subject of comprehensive review and analysis. At times it appears that the legislation has been criticised as allowing for excessively generous allowances in part compensation for what was seen as a failure to increase Oireachtas salaries (see Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998). Somewhat remarkably, the original structure enacted shortly after the coming into force of the Constitution remains in place. Thus, s. 2 of the 1938 Act provides that:

“Subject to the provisions of this Act, each member of the Oireachtas shall, out of monies provided by the Oireachtas, be paid the allowance specified in this Act and be granted the travelling facilities specified in this Act.”
The expression “travelling facilities” is defined by s.1 of the 1938 Act to include matters such as the “repayment of fare paid for travelling in any public tram, omnibus, char-a-banc or similar public conveyance”. Notwithstanding its quaint language, this definition remains operative for members of the Oireachtas in the 21st century. Section 4(1)(c) of the 1938 Act provides that the travelling facilities to be granted to a member of the Oireachtas shall be:

“[I]n the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being” (Emphasis added)

It is this last phrase which lies at the heart of this case.
93. It is of some interest that the concept of “normal place of residence” is not defined and does not appear to have created any difficulty of interpretation or application in the succeeding half century. An issue arose in 1987 as a result of which the Department of Finance appears to have sought advice from the Office of the Attorney General. The advice itself is not among the papers, but an excerpt from it is referred to in a letter of the 8th of September 1994 from the Assistant Secretary of the Department of Finance to the Head of Administration of the Houses of the Oireachtas. That letter provides as follows:

“In examining future claims for any deputies or senators, you will, I presume, take full account of the legal advice obtained in 1987. While this confirmed that the words ‘normal place of residence for the time being’ could be construed as governing a temporary holiday home the Attorney General’s Office indicated at the time that ‘while the concept is quite imprecise it seems to me that what is involved is a premises which, though not necessarily one’s permanent and principal abode is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage, such as a few nights in a hotel while attending a conference or staying briefly with friends’.”
This advice was, it appears, prompted by issues which had arisen in connection with members claiming travelling allowances from holiday homes, which had emerged following an audit by the Office of the Comptroller and Auditor General. It is not clear if Senator Callely, who was at the relevant time a deputy in Dáil Éireann, was the subject of the original advice in 1987, but it does appear that he had benefited from the view that holiday homes could be included within the concept of “normal place of residence for the time being”. In an email in June 2010, the Assistant Secretary to the Houses of the Oireachtas Service, Conan McKenna, recalled the fact that “holiday home expenses claims had been paid in the 1990s with the D/Finance approval (subject to restriction) to then Deputy Callely”. However, the same email noted that the law had been changed by the Regulations ( S.I.101/98) by the “once and once only” provision “ thus effectively locking out holiday home claims and rendering the position pre 1998 irrelevant to the issue at hand”. It will be necessary to consider the effect of the Regulations later in this judgment. However, before doing so it is desirable to recall the facts by reference to which this issue arises in this case.
94. In the aftermath of the 2007 general election Senator Callely lost his seat in Dáil Éireann and was a candidate for election to Seanad Éireann. He failed to secure election to Seanad Éireann but was appointed to that House by the then Taoiseach. Following his appointment, he wrote a letter addressed to “To Whom it may Concern, Member’s Services, Leinster House, Dublin 2”. That letter reads as follows:

“A Chara,
I wish to submit my daily travelling and overnight allowances for which I am entitled to claim. My personal situation has changed from June 2007 and while I retain my Dublin home in my constituency office, my current principal residence is Kilcrohane, Bantry, County Cork, as per my letter of appointment to Seanad Éireann as attached. I would appreciate if you can advise as to how best to proceed.”

The attached letter from the Department of the Taoiseach was dated the 3rd of August and was addressed to Mr Callely in Kilcrohane. Senator Callely appears to have attached considerable significance to the fact that this letter was addressed to him in County Cork. However, it does not appear important in the present context. Wherever Mr Callely was in early August was the address to which the letter was to be sent. There is no constitutional or statutory requirement that such a letter be addressed to the recipient’s normal place of residence. More importantly, Senator Callely’s letter also attached a completed form for subsistence and travel allowances for attendance at Leinster House. It was signed by him and gave his “home address” as “the Paddock, Kilcrohane, Bantry, County Cork.” It expressed the distance in kilometres from his “home to Leinster House to the nearest kilometre” as 370 km and ticked the box seeking “overnight allowance and travel allowance” which was only applicable to persons with normal places of residence more than 24.135 km from Leinster House (the metric equivalent of 15 miles). On the same occasion he submitted an overnight claim form in respect of travel expenses. He sought to recoup expenses incurred in attending Leinster House between the period of the 3rd August 2007 to 3rd November 2007 and set out 39 one way journeys at 370 km per journey and a total of 38 overnight allowances to be recouped in respect of journeys to Dublin to attend Seanad Éireann (20), for parliamentary visits with other members (3), and using the facilities of the Houses (15). Again this was signed by Senator Callely who certified that he was submitting the application “in strict conformity with the legislation and regulations relating to the recoupment of the above expenses to members of the Houses of the Oireachtas”. A further form was submitted for the period from the 4th of November to the 31st of December in respect of 21 one-way journeys, 26 attendances in the House, two parliamentary business visits with members and seven occasions on which he used the facilities of the House. This form was a form for attendance at the Dáil but this appears to have been used in error.
95. It appears that Senator Callely’s expenses were paid on a number of similar occasions during 2008, 2009 and 2010. In October 2008 the matter was looked into by Derek Dignam of the Offices of the Oireachtas who reported to Conan McKenna. He pointed out that the office had no way of looking behind the claim without risking potential legal counter-claims. However, if Senator Callely continued to claim at the rate he would drawn down about €40,000 per annum, €25,000 more than would have been expected if he had remained on daily allowances, i.e. the rate applicable to someone resident in Dublin. Mr Dignam raised the matter with Mr McKenna with a view to discussing possible amendments to the guidelines.

96. Almost at the same time, and it appears as part of Mr Dignam’s review, Ms Bernadette McCormack of Members’ Services wrote to Mr Callely referring to his letter of December of the previous year observing that he had stated that the house called “Kilcrohane” was his “current principal residence”. That letter continued:

“However, for the avoidance of doubt and perhaps with certainty for future audit purposes I would be grateful if you could certify in writing that this house in Bantry was your ‘normal place of residence’ for the time being for the period of the claim. This is the statutory position used in s.4(1)(c) of the Oireachtas Allowances (to Members) Act 1938 for the payment of such expenses.
For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence with you as ‘what is a premises which, though not necessarily one’s permanent and principal abode, is used for a periods which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel’”.

The reference to the previous correspondence with Mr Callely is, it appears, a reference to the issue which arose when he sought and obtained expenses for travelling from his holiday home at Kilcrohane and which was referred to in Mr McKenna’s email referred to at paragraph 5 above.
97. On the same day, Senator Callely replied:

“Dear Bernie,
I refer to your letter of today’s date in connection with my expenses claim.

As already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all times. It is the residence from which I received my appointment to Seanad Éireann (copy already supplied). I would like to thank you and the one stop shop for your assistance in this matter.”

It is clear that, at least from this point on, Senator Callely adopted the language of the advice of the Department of Finance/Attorney General’s Office. He had however been in receipt of expenses for a year at that point. He continued to submit expenses on this basis until 2010. However, for some periods he submitted a nil claim. At the hearing he explained that he was spending more time in Dublin and wanted his expenses to reflect his travel more accurately. As late as the 25th of March 2010 however, Senator Callely completed a parliamentary standard allowance “normal place of residence declaration” form which he described his address as “the Paddock, Kilcrohane, Bantry, County Cork” and the “distance in kilometres from your normal place of residence to Leinster House by the shortest practical route” as 366 km.
98. In the middle of 2010, a Freedom of Information Act request revealed some of this information and triggered the press coverage, complaints from members of the public and the Committee investigation which became the subject matter of these proceedings. The Committee held hearings on the 25th of June, the 30th of June and the 13th of July, and met in private on the 3rd, 17th and 25th of June, and on the 6th, 7th, 8th and 14th of July. On the opening day the clerk of the Committee read the two complaints and stated;

“The two complaints relate to allegations that Senator Callely misrepresented his normal place of residence for the purpose of making claims for allowances. The allegations are such that they may give rise to a contravention under the Acts if it is determined that the act or omission complained of …. Is a specified act within the meaning of section 4 of the Standards in Public Office 2001 and is determined to be inconsistent with the proper performance by a Member of the functions of the Office of Member or with the maintenance of confidence in such performance by the general public …”
The Report was issued on the 14th of July 2010. It referred to two complaints from members of the public in almost identical terms, as follows:
“… allegations that Senator Ivor Callely misrepresented his normal place of residence for the purpose of making claims for allowances. The allegations are such that they may give rise to a contravention of the Act if it is determined that the Act or omission complained of, or the circumstances of which, it is a specified Act “within the meaning of s.4 of the Standards in Public Office Act 2001” and is determined to be inconsistent with the proper performance by a member of the functions of the office or with the maintenance of confidence in such performance by the general public in the matter is one of significant public importance.”
It is clear in our view that the allegation made against Senator Callely was the misrepresentation of his normal place of residence. Indeed it is a significant part of Senator Callely’s case that this was so. His essential defence was that he complied with the Department of Finance definition.
99. The findings and determinations of the Committee were set out in nine numbered paragraphs which have already been quoted but which it is convenient to set out again here:

“(1) The Committee determines that Senator Ivor Callely has done a specified act as contemplated by s.4 of the 2001 Act by misrepresenting his normal place of residence for the purpose of claiming allowances. The Committee finds that such action was inconsistent with the proper performance of Senator Callely of the function of the office of senator, was inconsistent with the maintenance of confidence in the performance by Senator Callely of the function of the office of senator by the public and was of significant public importance.
(2) The Committee determines that the aforementioned specified act on the part of Senator Callely is continuing.

(3) In order to cease the specified act the Committee determined that Senator Callely in conjunction with the relevant authorities take account of the findings of this report and regularise and make good his allowance affairs and ceases to misrepresent his normal place of residence. In this context the Committee records Senator Callely’s clear undertaking given in his evidence on the 25th of June 2010 that he would ‘reimburse’ or ‘repay’ any overpayment per balances.

(4) The Committee determines that this specified act on the part of Senator Callely was done intentionally.

(5) The Committee determines that the specified act on the part of Senator Callely in all the circumstances was of a serious and grave nature.

(6) The Committee determines that Senator Callely did not act in good faith having regard to all the circumstances.

In making all of these determinations and findings the Committee took into all of the evidence before it and on balance agreed that the weight of all the facts taken together included and not limited to the fact that Senator Callely:-
• Described his Clontarf residence as his family home;

• Maintains a constituency office in Dublin which has regular weekly opening hours and which Senator Callely advertises on his website that he is available to attend, Mondays, Wednesdays and Fridays;

• Represents on his website that he is continuing to work in the constituency of Dublin North Central and he continues to live in Dublin North Central;

• Has directed the Seanad to send his post to his family home in Clontarf;

• Uses his family home in Clontarf for the purposes of receiving post in relation to his ministerial pension;

• Uses his family home in Clontarf for the purposes of correspondence with the Revenue Commissioners; and

• Is registered to vote in Dublin

Links Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork.

The Committee is strengthened is its conclusion by the fact that Senator Callely entered nil claims for September, October, November, December 2008 and 2009 and has not cashed certain cheques in 2010.
The Committee believes that the expenses regulation would benefit from a clear and robust definition of ‘normal place of residence’. In the interests of maintaining public confidence in the Houses the Committee would recommend that this matter is addressed.” (Emphasis added)
Again it seems quite clear from these findings that the Committee found that Senator Callely had indeed misrepresented his normal place of residence. Indeed, Senator Callely agrees and contends that in so doing the Committee wrongly departed from the Department of Finance interpretation and therefore erred in law.
100. On the 14th of July 2010 the Seanad adopted a motion proposed, unanimously, by the members of the Committee:

“That having regard to the report of the Committee on Members Interest of the results of an investigation into a complaint concerning Senator Ivor Callely, which report was laid before Seanad Eireann on the 14th of July 2010 and in particular, having regard to the findings and determination of the Committee contained in that report, Senator Ivor Callely, notwithstanding any standing order, be censured and he be suspended from the service of the House for a period of 20 days in which the House shall sit with his annual sum by way of salary payable to Senator Ivor Callely under the Oireachtas (Allowances) Act 1938 be withheld for that period and the period of that suspension shall commence forthwith.”
101. There appears to be a clear conclusion that Senator Callely had misrepresented his normal place of residence. In these proceedings, Senator Callely relies almost entirely on the Department of Finance advice in arguing that he did not do so and that there was therefore an error of law in the Committee’s determination. The central issue raised was the correctness of the Department of Finance interpretation as a matter of law. Senator Callely’s case was in essence that in departing from that guidance and applying a test of close connection, the Committee has had incorrectly substituted their own, erroneous, interpretation. That this is so, is very clear from Senator Callely’s Statement of Grounds and grounding affidavit. A few excerpts are sufficient to illustrate this. At paragraph 18 of his affidavit he said:
“In the report, the respondents did not make any finding, or purport to make any finding, that my address in Kilcrohane County Cork, was not my “ normal place of residence”, as defined by Members’ Services in their letter to me. I believe my residence in Cork manifestly satisfies the test. Instead, I believe and am advised that in the Report, the respondents purported to apply a test as to whether the facts link Senator Callely to his family home in Clontarf rather than to Kilcrohane, County Cork. I do not believe that there was any basis for such a test and the respondents did not purport to identify the basis or source of this test. I believe and am advised that it flies in the face of the definition provided to me in writing by members services.”
At paragraph 20 he said:
“As set out above, I believe and am advised that the only complaint that was before the committee on Members’ Interests of Seanad Eireann was a complaint that I had misrepresented my “ normal place of residence” for the purpose of making claims for allowances. It will be immediately clear that the definition which had been supplied to me by Bernadette McCormack … is critical. Any assessment of my conduct must be measured in accordance with that standard. There is no basis for departing from it. I do not believe that I am overstating the position by saying that the definition is the lynchpin upon which the complaint had to be investigated. There was no legal basis upon which the complaint could have been investigated and findings made on any other basis, certainly the committee was not entitled to disregard the definition. Nor was it entitled to substitute a different one. I contend in fact, that this is what was done.”
At paragraph 21 he stated:
“I respectfully believe and am advised that the respondents misunderstood the complaint and misdirected themselves on the issue of law that was before them. In considering the complaint, I believe and am advised that the members of the Committee on Members Interest of Seanad Eireann were required to have regard to and apply the definition of “normal place of residence” as is provided to me in writing by Members’ Services.”
102. The matter became a little more confused however when the Committee came to defend these proceedings. The then Cathaoirleach of the Seanad, Senator Pat Moylan, swore an affidavit in opposition to the relief sought. For present purposes paragraph 19 of the affidavit is particularly important:
“The Committee consider that its role was to determine whether the actions of Senator Callely in these circumstances, were such to be as to be inconsistent with the proper performance by him of his office or were inconsistent with the maintenance of competence in Senator Callely’s performance of his office by the general public, within the meaning of s.4(1)(a) of the Standards in Public Office Act 2001. The matter was clearly one of significant public importance. The Committee considered it was exercising a political function, judging a member of the Oireachtas by reference to what Committee members believed to be the appropriate ethical standards expected of a member of the Oireachtas. The Committee therefore reviewed Senator Callely’s action in a political context in circumstances where it concluded that he had a greater affinity with Clontarf that with Kilcrohane. The Committee viewed its actions in the light of their understanding of political ethics and their appreciation of the propriety of Senator Callely’s behaviour. The Committee did not consider than in exercising its peculiarly political functions, it was circumscribed by the interpretation of s.4(1)(c) of the 1938 as given by the Department of Finance in the circumstances outlined by Mr Dignam.”
103. The position taken by the respondents in the statement of opposition was twofold. They sought to contend that the Committee had not determined whether Senator Callely’s claim for travel allowance was properly made within s.4 (1)(c) of the 1938 Act but rather had determined that the submission of such expenses constituted a specified act within the meaning of s.4(1)(a) of the Ethics in Public Office Act 2001 which was not consistent with the proper performance of the applicant of his functions or the maintenance of public confidence in his performance. Accordingly, the determination of the Committee was one “that related to political ethics and propriety of the applicant’s behaviour in submitting such expenses claims”. This appears to be linked to the contention that the issue as a political matter was, or ought to be, beyond review.
104. At paragraph 10 however it is also pleaded that if the Committee had concluded that the applicant misrepresented his normal place of residence within the meaning of s.4(1)(c) of the 1938 Act:

“It was entitled not to apply the Department of Finance Act 1994 or any interpretation of that phrase, as communicated to the applicant by letter dated October 2nd 2008. The latter interpretation of the “normal place of residence” was erroneous and ultra vires the 1938 Act. For the avoidance of doubt the respondents acknowledged that the applicant’s claim for expenses came within the scope of the interpretation given by the Department of Finance.” (Emphasis added)
` This appears to amount both to an acknowledgment that Senator Callely was within the Department of Finance interpretation and a contention that the interpretation was wrong in law.
105. The High Court held that the political charge of committing this specified act was one which was not properly put to the applicant and accordingly, that it was a breach of fair procedures to so find. In relation to the second claim, as already set out above, the High Court concluded that the interpretation by the Department of Finance in 1994 was intra vires size=”2″ face=”Verdana”> the 1938 Act and that therefore compliance with it (which was acknowledged by the respondents) was in compliance with the Act, and accordingly misrepresentation of Senator Callely’s normal place of residence was an error of law.

106. The first essential question is whether the interpretation proffered in 1994 by the Department of Finance of the concept of “normal place of residence” is correct in law. If it is, then it is acknowledged that Senator Callely was within that interpretation and accordingly within the Act. However there can be no question of an interpretation being intra vires size=”2″ face=”Verdana”> the 1938 Act. It is either a correct interpretation or it is not. The Department of Finance has not been given any discretion as to the meanings which it can attribute to legislation. The issue is therefore a net question of law and for Senator Callely to succeed on this point at least he must establish that the interpretation of the Department of Finance in 1994 (relaying advice from the Office of the Attorney General) is correct as a matter of law. Indeed there might be an argument that insomuch as the determination of the Committee was the application of a legal test to certain facts, the decision of the Committee should not be interfered with unless clearly wrong by analogy with the line of authority illustrated by Henry Denny & Sons (Ireland) Ltd. v. The Minister for Social Welfare [1998] 1 I.R.34. However it is not necessary to resolve that question. The fundamental question is whether, in rejecting the Department of Finance interpretation, the Committee made an error of law.

107. We have come to the clear conclusion that this interpretation was incorrect and that it certainly was so in 2008, if sought to be applied to Senator Callely’s case. The relevant advice was given in 1987 and it arose, it appears, in the context of whether a member of the Oireachtas was entitled to claim expenses for travel from a holiday home. However, the full advice from the Attorney General’s Office is not available and it is impossible therefore to identity the precise factual context in which it was given. Instead a small excerpt from the advice is included in a letter from the Department of Finance in 1994. It is always dangerous to seek to compress advice in to one or two sentences and to apply that advice or conclusion without regard to the context. Furthermore, it is notable that the interpretation itself is not very precise and is essentially negative. Normal place of residence for the time being is defined as being not necessarily the permanent principal abode and not merely shelter in passage such as a few nights in a hotel. That, it may be observed, still leaves a considerable area for debate.

108. In our view it is perhaps conceivable that if the language is taken in the abstract and without reference to context other than the fact that it was to provide for the recouping of travelling expenses, it might be possible to include holiday homes and other temporary residences within the section if it referred only to “place of residence for the time being”. There could be a number of such residences in a given year. But the reference to “normal” implies even, at this level of abstraction, that there is one place at any given time (of some permanence) which can be said to be the normal place of residence, even if the person is not residing there for the time being. It is harder to conceive of multiple “normal” places of residence in a given period. This is reinforced when the section is read in the context of the expenses regime more generally. The more clearly an expenses regime is understood as providing for a vouching of expenses actually incurred, the more latitude there is for interpreting “normal place of residence for the time being” as approximating to place of residence. It is after all from that place that a person may depart to travel to the Oireachtas and which determines the extent of the expenses which are to be recouped. On the other hand, the more generalised and simplified the system for expenses, and the less clearly they relate to expenses actually incurred, the more likely it is that normal place of residence should be understood as a single place of some permanence during the Oireachtas session, irrespective of whether it is from that place that the member of the Oireachtas departs when travelling to the Oireachtas. Here, it is of some significance that of all the things that can be said in this case, it has never been suggested that Senator Callely actually incurred any expenses in travelling to the Oireachtas or that he incurred overnight expenses on any of the occasions claimed. Indeed he frankly agreed that he stayed in his Dublin home while attending the Oireachtas.

109. The development of the Oireachtas allowances regime was clearly in the direction of a generalised system of expenses not directly connected to actual expense incurred. Perhaps the most significant change was that effected by the 1998 Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Officers (Amendment) Act 1998 which provided for a generous expenses regime of allowances to be paid to government whips, to persons of Oireachtas committees, members of committees, and even extended travelling facilities to former taoisigh who, while members of the Oireachtas, had the use of a State car (and thereby did not presumably incur travelling expenses). These allowances do not appear related in any real way to expenses which may be actually incurred. It is also of some significance that under s.6 of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Officers (Amendment) Act 1998 provision had been made for deduction from expenses of amounts in respect of contributory pension which perhaps indicates that by that stage the expenses regime was seen as a hybrid between true expenses and a form of remuneration. It is not unusual for expenses to be treated as a form of remuneration which benefits the employer as well as the employee since such expenses do not have any impact on pension obligations. It is not necessary to discuss here the merits of the then applicable Oireachtas regime. However the nature of the regime is relevant when considering what interpretation should be given to the phrase “normal place of residence”.

110. By the time Senator Callely submitted his claims in 2007 the expenses regime had little connection to expenses actually incurred. Once a normal place of residence was identified, expenses were payable at a fixed rate per kilometre dependent upon the number of times a person attended the Oireachtas and travelled for that purpose irrespective of the point of departure. Similarly, overnight expenses became payable without proof of any such expenses being actually incurred.

111. The 1998 Act also amended the 1938 Act provisions in relation to the making of regulations and permitted the Minister for Finance to make regulations in relation to the manner in which claims were to be made for such expenses. By the Oireachtas 1998 Regulations (SI No.101/1998) the then Minister for Finance provided that a person whose normal place of residence was further than 15 miles from Dublin could opt either for a daily allowance which was payable to Dublin members, or mileage allowance payable at civil service rates in respect of the relevant period, but that the option to so opt could only be exercised “once and once only for a relevant period in respect of which the member is entitled to an allowance under that paragraph”. Under Article 6 of the relevant regulations “relevant period” was defined, in effect, as a 12 month period. As was observed in the correspondence referred to above, this change in the regulations made it impossible to opt for expenses being incurred from a holiday home. Given the fact that election for travelling expenses is made once, and once only, during a given year, it is necessary to take an overview of the places at which a member of the Oireachtas resides during that year and consider which is the (single) “normal” place of residence for that year.

112. In most cases it should be easy to determine what is the normal place of residence (remembering that there is only one) for a member of the Oireachtas. In cases of difficulty, the inquiry can be refined by recalling that the purpose of the regulation is and remains expenses for travelling to and from the Oireachtas and that therefore the principal focus should be on the residence of a member during the Oireachtas sessions. In cases of genuine difficulty where there are two or more competing residences of some permanence then a decision must be made by reference to the residence with which the member has the closest connection and which can therefore be said to be the normal place of residence. That is precisely what the Committee did in this case. It assessed all the available information which clearly showed that Senator Callely had a closer connection to his residence in Clontarf than that in West Cork. Accordingly, in our view there was no error of law in the Committee’s conclusion on this point.

113. For that reason it is not perhaps necessary to consider whether, even if the Department of Finance’s interpretation was correct, the Committee was in breach of fair procedures in finding that his claim for expenses undermined public confidence in his office. Clearly it is in principle possible to conclude that strict adherence to a technical provision may nevertheless bring the office into disrepute. The principal complaint here is not with the Committee’s jurisdiction to so find, but rather whether Senator Callely was properly on notice of the possibility of such a finding. We do not think that too close an analogy can be drawn between disciplinary proceedings before a Committee and an indictment in a criminal trial. The Committee must hear and determine complaints made by members of the public. It has no power to reformulate the complaint or add additional complaints, and there is no person performing the role of a prosecutor. Thus, it seems to us that the question is whether the proceedings before the Committee were sufficient to put Senator Callely on notice that he was at risk of such a finding i.e., that he had complied technically with the provisions but was nevertheless guilty of conduct likely to bring the office into disrepute. During the hearings Senator White, the seventh named respondent, stated:

“What I am putting to you is this: what do you say to the prospect that the committee might decide or might be saying: ‘look, yes, in terms of the letter of the law West Cork satisfies the definition but for somebody in public life, for a member of the Oireachtas to opt, as it were, to claim expenses in respect of that address rather than the address that he would appear to be very, very substantially associated with is exploiting an imprecise definition that exists, and that is wrong. It is not acceptable’.”
These proceedings were reasonably informal. Senator Callely was obviously comfortable with the procedure in the Committee hearings. It is significant that he did not complain either at the time, or in his affidavit, of the matter being put to him in this way. It was clearly an issue in the deliberations of the Committee. It is noteworthy that while Senator Callely quotes this passage in his affidavit, but relies on it only as evidence of the error of law which he alleges against the Committee. The question was clearly in issue therefore in the proceedings. In the circumstances we do not consider there was any unfairness in the hearings or any error of law in the Committee’s conclusions.
114. It is true that the Committee did not frankly acknowledge in its conclusions that Senator Callely was in compliance with the Department of Finance interpretation. The first occasion on which this was acknowledged was in the Statement of Opposition referred to above. Whether this reticence was due to a desire not to expose the officials to criticism for proffering that interpretation, or a less high minded desire to avoid public attention and criticism of the Oireachtas expenses regime more generally, may be a matter of speculation and comment, but it cannot resolve this case. In truth the principal complaints about the Committee are directed, with some merit, not to what the Committee did, but rather what it said (or did not say) in its Report and more particularly in the documents filed in defence of these proceedings. But the only issue for this Court is one of law. In our view the Committee was correct in rejecting as erroneous the 1994 interpretation and was entitled to conclude that Senator Callely had indeed misrepresented his normal place of residence and thereby committed a specified act which was inconsistent with the maintenance of public confidence in the performance by him of his office. Accordingly we would allow the appeal and refuse the reliefs sought.
JUDGMENT of Mr. Justice Fennelly delivered the 9th day of April 2014.

1. I agree with the joint judgment of O’Donnell and Clarke JJ that, in principle, decisions made in internal disciplinary proceedings by either House of the Oireachtas are non-justiciable and that any proceedings conducted pursuant to rules or standing orders may not be challenged by way of judicial review (paragraph 82 of the judgment). The joint judgment treats comprehensively the relevant provisions of the Constitution and the case-law.

2. I will confine myself, in these circumstances, to some brief remarks to explain the basis of my concurrence.

3. It is common case that there is some zone of Oireachtas action into which the judicial power may not normally encroach, which we call an area of non-justiciability. The task is to define it. Although the principle does not flow from any single express provision of the Constitution but depends on a reading of the Constitution as a whole, I believe that Article 15.10 is an indispensable part of the analysis. Its provision that each House “shall make its own rules and standing orders with power to attach penalties for their infringement…” means, at a minimum, that the Houses each have, in the first instance, exclusive jurisdiction to consider and to adjudicate on complaints or allegations of breach of its rules and standing orders.

4. The function of this provision in the constitutional structure is that it concerns the performance the functions assigned to it by one of the organs of the State. I am persuaded that this is an exclusive function of one branch of government, the legislature, and that decisions made within this zone should not normally be reviewable by the judicial branch.

5. It does not by any means follow that a member of a House of the Oireachtas, faced with a disciplinary proceeding to be conducted by his or her peers, enjoys no constitutional protection. Every organ of the State is obliged to respect the constitutional rights of individuals who may be affected by its actions. Most relevantly to disciplinary proceedings, every organ of state, such as, in the case, the Seanad, through one of its committees, is bound to observe the principles of natural and constitutional justice.

6. The courts do not abstain from judicial review of the internal acts of the legislative branch with a view to diminishing the rights of those affected. On the contrary, the courts must presume that the members of the House of the Oireachtas will be as astute as the judicial branch in ensuring that those rights are guaranteed. In the case of Curtin v Dáil Eireann [2006] 2 IR 556, a case concerning a proposal to remove a judge from the bench by means of a resolution of both Houses, pursuant to an Act applying Article 35.4.1 of the Constitution, Murray C.J., delivering the judgment of the Court, noted that it was not “contested by the Attorney General or by or on behalf of the Houses of Oireachtas that the Appellant, faced with a resolution calling for his removal from the bench for stated misbehaviour, is entitled to full plenitude of the protection of all of the rules of fair procedures guaranteed by the Constitution.”

7. In this context, I express my agreement with the statement, at paragraph 81 of the joint judgment, 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 mentioned above.

8. While agreeing with the joint judgment in respect of what is described as the “broad basis” of challenge, I respectfully disagree with the conclusion regarding the “narrow basis.” It seems to me essential to the principle enunciated in the joint judgment that decisions made in internal disciplinary proceedings by either House of the Oireachtas are non-justiciable that such decisions shall have been made by the House of the Oireachtas in question by way of enforcement of “its own rules and standing orders,” made by it pursuant to the power conferred by Article 15.10 of the Constitution.

9. The Constitution expressly provides for the exercise by each House of the power of discipline over its own members, where it takes the comparatively minimal step of adopting rules and orders covering the matter. Thus, it is to be expected that each House will take that step. In my view, in the absence of such rules or orders, the Court should not conclude that the subject-matter in question evades the purview of judicial review. I would not be willing to conclude that, in the absence of such rules, an affected member of either House is not entitled to access to the normal remedy of judicial review.

10. It is true that Standing order 90 of the 2007 Standing Orders of the Seanad provides:

“A person (other than a member) who considers that a member (other than a member who is or, at the relevant time, was an office holder) may have contravened section 5 or 7 or done a specified act may make a complaint in writing in relation to the matter to the Clerk and, subject to subsection (3), the Clerk shall refer the matter to the Committee and shall furnish a copy of the complaint to the Committee.” (Emphasis added: inserted by the Act of 2001).
13. Section 4(1) provides the definition of a “specified act.” The machinery of investigation and report created by these two acts is entirely statutory. The notion of “specified act” as a subject of complaint is statutory. No rule or standing order of the Seanad adopted it as a subject of complaint. This is not, in my view what was envisaged by Article 15.10 of the Constitution. In order to enjoy the benefit of any immunity from judicial review, at the very least the Seanad would have had to have adopted the notion of “specified act” as the subject of a rule governing members.
14. I am of opinion that the decision of the Select Committee was not, therefore, immune from judicial review. It follows that the respondent is entitled to the benefit of normal judicial review and that he was entitled to have fair procedures followed by the Select Committee.

15. However, on the question of whether the respondent did in fact benefit from fair procedures, I am in agreement with the joint judgment of O’Donnell and Clarke JJ. I agree specifically that the complaint made against the respondent was that he had misrepresented his normal place of residence. The technical definition of place of residence was not the point. The point was that, by using the technical definition provided by the Department of Finance, the respondent was claiming travel and overnight expenses which he was not in fact incurring. It was this which was the “specified act” which he was found to have committed contrary to s. 4 of the Standards in Public Office Act, 2001.

16. For all these reasons, I believe that the Court should make an order allowing the appeal, setting aside the order of the High Court and dismissing the application for judicial review.

JUDGMENT of Mr. Justice Murray delivered the 9th day of April 2014.

1. I have concluded, as three other members of the Court have also concluded, that the first ground of appeal of the appellants should fail, namely, their contention that the courts have no power or jurisdiction to review the legality or constitutionality of the procedures followed by the appellants and their decision which led to the disciplinary action against the respondent. First of all, with regards to that particular issue, there are a number of concurring observations which I wish to make.

Justicability
2. “The whole tenor of our Constitution is to the effect that there is no power, institution or person in the land free of the law save where such immunity is expressed, or provided for, in the Constitution.” (Byrne v. Ireland [1972] I.R. 281, Walsh J.)

3. Each House of the Oireachtas, like other organs of State such as the executive and judicial branches of government, derive their powers from the people pursuant to the provisions of the Constitution.

4. These powers must be exercised in accordance with the Constitution. Hence, a State founded on the rule of law.

5. “An independent judiciary guarantees that the organs of State conduct themselves in accordance with the rule of law.” (Judgment of the Court in Curtin v. Dail Eireann [2006] 2 IR 556 at 617).

6. In this appeal the first and primary argument made by the appellants puts in issue the fundamentals of the foregoing constitutional tenets. The above named appellants argue on this first issue that when a committee of the Oireachtas, in this case a Seanad Committee, exercises a disciplinary power to make findings of wrongdoing involving a consequential suspension or fine of a member of the Oireachtas it is a power to be exclusively exercised by them according as they consider appropriate without any answerability or review by the courts concerning the lawfulness or constitutionality of the process or decisions concerned. It is, it was claimed, for the Committee of the Oireachtas itself to judge its own conformity with the law and the Constitution.

7. In broad terms the contention of the respondents is that it does not matter if the committee acted in breach of the Constitution, it does not matter in this case if it denied and breached the guarantees contained in the Constitution governing fair procedures, it does not matter if the committee acted in breach of the powers conferred on it by the Ethics in Public Office Act, 1995. This is so because the separation of powers, as envisaged by the Constitution, and the privileges conferred on the Oireachtas by the Constitution mean that the judicial branch of government, referred to in Article 6 of the Constitution, the judiciary, have no jurisdiction to hear proceedings designed to enforce the law or ensure observance of the Constitution by this committee.

8. The respondents in the appeal contends that the determination or report of the Committee should be set aside on grounds, inter alia, that the investigation and determination arrived at by the Committee in the exercise of its statutory functions were in breach of fair procedures as guaranteed by the Constitution.

9. Based on an argument along the lines indicated, the appellants contend that the courts have no business and no jurisdiction to entertain any complaint from the respondent concerning a breach of his constitutional rights. Even if that occurred the courts are not entitled to entertain or examine his application.

10. The consequence of such an argument succeeding is that an individual member of the Dail 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.

11. Ensuring observance of the law and the Constitution when State powers are exercised are important guarantees not only to institutional rights but to individual rights which is one of the reasons why this Court has emphasised, as in for example Curtin v. Dail Eireann cited above, that an independent judiciary with power of judicial review guarantees that those who exercise constitutional or legislative powers “conduct themselves in accordance with the rule of law”.

12. 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 the Maguire v. Ardagh case. See, for example, the judgments of Geoghegan J. and McGuinness J. in that case. Geoghegan J. said the risk of bias “gave every reason for rejecting the alleged inherent power to conduct enquiries of the nature” in that case.

13. In any event, the very essence of the separation of powers requires that an independent judiciary adjudicate on disputes arising from the exercise of powers which affect the rights of an individual. As Walsh J. stated in Byrne v. Ireland:

“It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. The investigation and the adjudication of such claims by their nature belong to the judicial power of government in the State, designated in Article 6 of the Constitution of Ireland …”
Certainly, each House of the Oireachtas must be free to exercise fully the powers conferred upon it by the Constitution without interference from any other branch of government, executive or judicial. The exercise of such powers must, of course, conform with the Constitution. For example, the core role of the Houses of the Oireachtas to legislate is nonetheless subject to review by the courts as to the conformity of a statute with the provisions of the Constitution. Such review is not an impingement on the free exercise of the Oireachtas of its functions. The courts are not concerned with the merits, as such, of the legislation or of the exercise of a particular power but solely that the requirements of the Constitution have been observed. There is no conflict between the notion of the separation of powers, on the one hand, and judicial review of the process by which those powers are exercised. In Curtin v. Dail Eireann all parties fully acknowledge the power of the Oireachtas to remove a judge from office in specified circumstances and all parties acknowledge that the exercise of that constitutional power was not impugned by judicial review by the courts of the exercise of that power as regards its conformity with due process guaranteed by the Constitution.
14. If the appellants were correct in their contention it would create a haven of immunity from constitutional obligations for committees of the Oireachtas of this nature. For this to occur one would expect it to be expressly stated in the Constitution or, at the very least, be a strictly necessary implication mandated by its terms.

15. The appellants have not contended that there is any provision in the Constitution which expressly grants such immunity from review by the courts as to the conformity of its procedures and decisions with the Constitution. They have relied exclusively on Article 15.10 as carrying with it some inherent or implied immunity from judicial review. Article 15.10 empowers each House, inter alia, to make its own rules and standing orders with power to attach penalties for their infringement. I agree with Hardiman J. and McKechnie J. for the reasons set out in their judgments that this Article cannot be interpreted as granting the sort of immunity for the exercise of such powers sought in this case by the appellants from a review of constitutional compliance by the courts, and certainly it is not an interpretation which is mandated by its terms.

16. As noted in those judgments the appellants did not rely on Articles 15.12 or 15.13 as a source of any such inherent power other than referring to them for contextual purposes. In any event, I do not think that the process engaged by the relevant Committee in this case, and the decision it reached, as well as the punishments imposed on the respondent can be characterised as mere reports or publications or utterances for the purposes of Article 15.12.

17. If the appellants were correct in their contention for constitutional immunity it would concentrate in the hands of a Committee absolute power over the constitutional fate of one elected citizen.

18. 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 safeguard personal rights and to ensure that powers are exercised lawfully and constitutionally.

19. Independent of the foregoing, it must be noted that The Ethics in Public Office Act, 1995 places an express statutory obligation on the Seanad (with a corresponding obligation on the Dail) to establish a committee on members interests of Seanad Eireann. Its function is “to perform the functions conferred on it by this Act.” (s.8(1))

20. The Act falls to be interpreted in a manner consistent with the Constitution since the Oireachtas cannot pass any Act repugnant to the Constitution. Well established case law requires that statutory discretions in exercising functions conferred by an Act should be exercised in accordance with the principles of constitutional justice. In East Donegal Co-operative v. Attorney General [1970] I.R. 317, 341 this Court stated:

“… the presumption of constitutionality carries with it [such] presumption … but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by the Act are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
Having regard to this core constitutional function, the courts must also have jurisdiction to review the manner in which powers were exercised under the Act of 1995. Any other approach would give a constitutionally impermissible immunity from scrutiny of an Act of the Oireachtas and the use of its powers.
Fair Procedures
21. I also agree that the ground of appeal concerning the observance of fair procedures by the Committee should be disallowed for the reasons set out in the judgment of McKechnie J.

Kerins v McGuinness & Ors

[2019] IESC 11

6. The Issues

(i) An Initial Observation
6.1 On one view there may be a question as to the extent to which any of the issues (other than those relating to damages) which potentially arise truly remained alive by the time that these proceedings were commenced, or in any event were heard, by virtue of the fact that, by that time, it was clear that the PAC did not intend to continue with a further consideration of the issues which lie at the heart of the inquiry giving rise to these proceedings. However, there is no doubt that the PAC engaged in an inquiry into matters concerning Ms. Kerins, invited her to attend before it and engaged in questioning of her. On Ms. Kerins’ case, the courts are entitled to review at least some of the actions taken by the PAC in that regard and consider whether they were lawful whether having regard to the Constitution or otherwise. On that basis it is said that Ms. Kerins is entitled to a remedy in respect of the actions actually taken by the PAC, even though it was clear, by the time the proceedings came to be determined, that those actions had ceased. On the other hand, it is argued on behalf of the PAC (supported by the State respondents) that the Divisional High Court was correct to hold that all of these matters were outside the scope of issues which the courts are entitled, having regard to the separation of powers, to consider.

6.2 However, notwithstanding the opposite positions adopted by the parties, it remains possible that the courts may have jurisdiction in certain circumstances and for the purposes of providing certain types of remedies, but not in other circumstances or to provide other types of remedies. Against that backdrop it may be necessary to return to the question of the importance, if any, of the fact that the PAC had brought its enquiries to a close by the time the case came to be determined in the High Court. Depending on the answer to the question of the extent to which there is an absolute barrier placed by the Constitution in the way of the courts considering issues such as those raised by Ms. Kerins, that factor may or may not come to play some role in the proper disposition of this case. However, it is a question to which it might be necessary to return after other issues are decided.
(ii) Is there an Absolute Barrier?
6.3 In essence, the decision of the Divisional Court was to the effect that the Constitution provided an absolute barrier to the Court considering the issues which Ms. Kerins sought to litigate. That question involves a number of subsidiary issues, but it seems to this Court that the overall question raised by that issue needs to be first determined, for if the Divisional Court was correct in its determination in that regard no further questions need or should be addressed.

6.4 Furthermore, there is both a constitutional and a statutory aspect to the issue. It is clear that, if the PAC and the State respondents are correct in their contention that there is an absolute barrier, then it applies irrespective of whether its source can be found in the Constitution or in statute. However, different questions may well arise depending on whether, respectively, the Constitution or statute may be said to provide such a barrier. In those circumstances it is appropriate to separately consider under this heading the issues which arise under respectively the Constitution and statute.
(ii)(a) The Constitution
6.5 The starting point has to be to identify the relevant constitutional provisions which are to be found in Articles 15.10, 15.12 and 15.13 of the Constitution, and which are in the following terms:

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.”
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.”
Article 15.13 provides:-
“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.”
6.6 Article 15.10 permits each House of the Oireachtas to make rules and standing orders and to attach penalties for infringement. That Article also confers on each House the power to “ensure freedom of debate”. There are questions, therefore, as to whether the combined effect of those provisions confines any limitation on freedom of debate within the boundaries fixed by rules and standing orders subject only to penalties for breach provided in those rules and standing orders. On the other hand, it is argued that Article 15.10 does not, in and of itself, prevent a citizen, who complains about having been affected by allegedly unlawful actions taken by members of a House, from having a remedy in the courts.
6.7 Article 15.12 confers a privilege on official reports and publications and “utterances made in either House”. Issues arise both as to the precise nature of the privilege thus conferred and as to whether an utterance made in a committee of either House can be said to have been made in the House concerned. Obviously, all of the actions which fall for potential consideration in these proceedings occurred in a committee of the Dail being the PAC. Thus, if utterances made in a committee do not come within the ambit of Article 15.12, then the constitutional privilege attaching to utterances covered by that Article has no relevance to these proceedings.

6.8 Article 15.13, amongst other things, specifies that members of the Oireachtas are not to be “amenable to any court or any authority other than the House itself” in respect of utterances in either House. The question of whether statements made at a committee come within the ambit of that sub-Article arise in just the same way as they arise in respect of Article 15.12. There are also issues concerning the meaning of the phrase “shall not be amenable”.

6.9 In addition, there are questions concerning whether there may be any exception to any constitutional immunity or privilege conferred in the context of an egregious breach of rights having regard to the decision of this Court in Callely . It might also be argued that a persistent failure on the part of the Oireachtas to engage with the protection of the rights of citizens, potentially affected by the conduct of its business, could come within a Callely type exception.

6.10 In summary, it seems that the following matters may need to be considered: Is an utterance made at a committee an utterance for the purposes of Article 15.12 and 15.13; if so then what is the scope of any non-amenability or privilege as conferred by the Articles concerned; does the power conferred on the Houses of the Oireachtas by Article 15.10, to ensure freedom of debate, limit the jurisdiction of the courts to interfere and, if so, what are the limitations imposed; and if there is an exception to any limitation based on egregious or, perhaps, persistent breach of rights.

6.11 Next it is necessary to consider the statutory position.
(ii)(b) Statute
6.12 The relevant legislation for the purposes of the present analysis is the 2013 Act. In particular, s. 92 of that Act provides:-

“(1) A member of a House shall not, in respect of any utterance in or before a committee, be amenable to any court or any authority other than the House.
(2) Subject to sections 36 (2) and 37 (2), the following are privileged wherever published:

(a) the documents of a committee and the documents of committee members connected with the committee or its functions,
(b) all official reports and publications of a committee, and

(3) Utterances made or documents prepared at or for meetings of a committee that are held otherwise than in public and at which no evidence is given to the committee shall not be disclosed without the consent in writing of the chairman.

(4) A document given to a committee by a person who is not a committee member shall cease to be a document of the committee under subsection (2)(a) if the committee so decides.

(5) In this section ‘utterance’ includes a statement within the meaning of the Defamation Act 2009 .”

6.13 Clearly, that statutory provision applies expressly to a committee of the Houses so that the issue as to whether the statutory limitation on the power of the Court to interfere applies to committees does not arise in the same way as the equivalent question arises in respect of the constitutional limitation. On one view it might be said that the question of the applicability of any constitutional immunity to committees is irrelevant if the same immunities are, in substance, conferred by statute.
6.14 That might appear to be so, but only if there is no distinction between the immunities provided for in the Constitution and those provided by statute. To the extent that there may be any such distinction then the question of the applicability of constitutional immunities to committees of either or both Houses remains relevant.

6.15 Thus, there is a link between issues concerning the scope of any immunity conferred by statute and the question of whether the constitutional immunities to be found in Article 15 apply to committees. There can be little doubt but that the wording of s. 92 follows closely from the wording of Article 15.13 of the Constitution. However, questions remain as to the scope of the statutory immunity in comparison with the scope of any constitutional immunity. There are two reasons why such questions arise. First, there is the question of the constitutional immunities which may be said to arise under Articles 15.10 and 15.12 (whose language is not repeated in the statute). Second, there may be questions as to the proper interpretation of a statutory provision having regard to the protection of constitutional rights of persons who are not members of the Oireachtas, which may not apply, or at least may not apply in the same way, as in a case where a privilege or immunity derives directly from the Constitution itself.

6.16 Clearly, if the answers to the questions just addressed are to the effect that there is an absolute barrier to the entitlement of a citizen, such as Ms. Kerins, to raise the issues advanced in these proceedings, whether deriving from the Constitution or by statute, then the Divisional Court was clearly correct and no further issues arise. However, in the event that there may not be an absolute barrier or at least an absolute barrier in all circumstances, then further questions arise. It is next, therefore, appropriate to set out those consequential issues
(iii) Consequential Issues
6.l7 As noted earlier, one of the questions which arises in relation to the immunities conferred on the Oireachtas and its members, whether by the Constitution or by statute, is as to the precise extent of any such immunity. To the extent that it may be held that immunities arise in some but not all circumstances, or in respect of some but not all matters, then it follows that it will be necessary to analyse the contentions made on behalf of Ms. Kerins to determine whether they fall within or without the limitations of the immunities conferred.

6.18 To the extent that any of the matters alleged by Ms. Kerins might be found to come outside the scope of any immunity conferred then it will, of course, in principle be necessary to determine, on the merits, whether Ms. Kerins’ case is well made out. However, in that context there is a possible difficulty which derives from the fact that the Divisional Court did not reach final conclusions in respect of many matters alleged because of the view taken by that Court that the Constitution prevented the courts from having jurisdiction in such matters. The extent to which it would be appropriate for this Court to make findings of fact in the circumstances of this case, and in the absence of findings by the Divisional Court, clearly has the potential to arise in the event that this Court determines that at least some of the matters alleged by Ms. Kerins are justiciable.

6.19 At the level of greater detail there is a question as to whether it is permissible for a court to look at comments made by a member of a committee such as the PAC for the purposes of determining the nature of the proceedings being conducted by that committee. In that context, questions might well arise as to whether it is appropriate to take a view as to the nature of the proceedings of a committee as a whole, including the manner in which the proceedings were managed by the chair, for the purposes of characterising the nature of the proceedings. The proper approach in such a circumstance might arguably be different to one where it was sought to place reliance on a particular “utterance” of a single member or a small number of “utterances” from a minority of members, particularly where the chair sought to impose appropriate limitations. It is arguable that, and therefore there is an issue as to whether, it may be permissible for a court to look generally at what was said by members of a committee (including letters sent on behalf of the committee and other documents generated by it) for the purposes of determining what action was being taken by a committee, even if it might not be permissible for a court to place reliance on an individual utterance for the purposes of providing an aggrieved party with a remedy.

6.20 If the answer to that last question is that the Court can look at the conduct of the proceedings of the PAC generally, then questions may arise as to how it is appropriate to characterise the nature of the hearings in this case and, possibly, whether those hearings were conducted outside of the remit of the PAC as defined by the Dail. In that latter context, there is a further question as to whether the courts have any business in considering whether a particular committee acted outside of its remit in circumstances where there was no doubt that the Dail itself (or the Seanad or both Houses) could have dealt with the matter concerned. If a matter is within the general and broad remit of the Houses of the Oireachtas then there is an argument to the effect that a division of responsibility, by the conferring of the power to conduct certain aspects of the legitimate business of the Houses on a specified committee, is peculiarly a matter for the Houses themselves and not a matter for the courts.

6.21 Apart from those matters of detail there are two further issues which may potentially arise depending on the answer to some of the earlier questions. The first of those concerns the question of whether there is a Callely type exception.
(iv) Is there a Callely type Exception?
6.22 The majority view of this Court in Callely , while accepting that the internal discipline of members of the Houses of the Oireachtas in accordance with standing orders was not a matter within the competence of the courts, did suggest that there might be circumstances where a departure from constitutional norms was so great that a court might be entitled to intervene to protect the overall constitutional structure. A question arises as to whether a similar exception applies in the context of any immunity which may be found to potentially debar a citizen, not a member of the Houses of the Oireachtas, from seeking a remedy for what goes on within the Houses. It has often been said, not least in Callely itself, that the fact that there may be areas where the courts do not have competence to interfere does not mean that parties do not retain constitutional rights. The logic behind those statements is that citizens must look to the Houses themselves to enforce their constitutional rights in such circumstances. However, there is an argument, and therefore an issue, as to whether the courts may have a residual role where there is either a particularly egregious breach of a citizen’s rights in respect of which the Houses themselves appear to take no action, or if it could be established that there was a systemic failure on the part of the Houses to take any action to protect the constitutional rights of citizens.

6.23 Clearly, if there is such an exception then it would also be necessary to consider whether the circumstances of this case would give rise to what would, undoubtedly, be an unusual and exceptional jurisdiction on the part of the courts.

6.24 The final matter which arises concerns remedy.
(v) Remedy
6.25 In one sense the question of what remedies may be available in proceedings such as this is inextricably linked with the scope or extent of any immunities conferred on the Houses of the Oireachtas whether by the Constitution or by statute.

6.26 Ultimately, all legal proceedings are concerned with whether there is some remedy which the court can provide even if that remedy is only to indicate a legal position relevant to the interests of the parties, whether in the form of a formal declaration or even in a less formal way having regard to the respect which one organ of the Constitution must pay to others. (See, for example, McMenamin v. Ireland [1996] 3 I.R. 100).

6.27 It follows that ultimately, but only to the extent, if any, to which the courts may be found to have jurisdiction, the final issue will be about remedy. However, it seems to the Court that there is such a close connection between questions concerning remedy and questions concerning the scope of any privilege or immunity enjoyed by the Houses of the Oireachtas, that it is more appropriate to consider any issues relevant to remedy in the context of a consideration of the scope of the privileges and immunities of the Houses.

6.28 The Court has set out those issues in some detail for they provide a road map to the proper approach of the Court to considering the issues which arise on this appeal. As already noted, the first issue which logically arises is as to the extent of any absolute barrier to justiciability which is conferred by the Constitution. It is therefore appropriate to turn to that issue. On that basis the Court will turn first to the issue as to whether the privileges or immunities of the Houses of the Oireachtas attach to any committees established by those Houses for if they do not, then any barrier to justiciability arising on the facts of this case can only be found in statute.
7. The Position of Committees
7.1 Each of the constitutional provisions which potentially give rise to a privilege or immunity makes express reference to the rights and position of the “Houses of the Oireachtas”. Article 15.10 speaks of each House having rule making powers and the power to ensure freedom of debate. Article 15.12 refers to the privilege attaching to official reports including those of either House and utterances made in either House. Article 15.13 refers to non-amenability arising “in respect of any utterance in either House”.

7.2 Whatever may be the limits, if any, of the privileges and immunities conferred by those Articles, they clearly relate to matters concerning each House of the Oireachtas. The question which arises is as to whether the Divisional Court was correct to hold that the fact that the events which were potentially under scrutiny in these proceedings occurred in a committee did not bring those matters outside the scope of the privileges and immunities conferred.

7.3 Can, for example, a statement made in a committee be an utterance made in a House for the purposes of Article 15.12 or 15.13?

7.4 The argument in favour of treating committees as having the same privileges and immunities as the Houses themselves stems from the fact that a House or the Houses collectively may choose to conduct legitimate constitutional business through the work of a committee. In that context, it must be recalled that the constitutional role of the Oireachtas is not confined to the pure task of legislation. Undoubtedly, the consideration, and if thought appropriate, the passage of bills which propose to amend the law represents a core function of any legislature. However, the Oireachtas also has a key function in holding the executive to scrutiny and also in providing representation for the public in the political sphere.

7.5 In the core legislative function it is regularly the case that a detailed consideration of proposed legislation is entrusted to an appropriate committee which has the power to amend the legislation concerned subject only to the overall view of the relevant House of the Oireachtas when the matter comes back, after the committee stage, for report and final decision. Sometimes, of course, the so-called committee stage may be conducted before a committee of the full House concerned.

7.6 On that basis it is argued that it would be strange indeed if a statement made by a deputy in respect of a speech during a committee stage of the passage of a particular piece of legislation would be deprived of whatever immunities and privileges might attach to exactly the same speech made at either an earlier or later stage of the legislative process in the House itself.

7.7 Likewise, it is argued that the raising of issues or tabling questions in either House forms part of the constitutional role of those Houses. On that basis it is said that, if the House or Houses concerned choose to conduct that business through the medium of a committee, it would be strange indeed if comments made at a committee carrying out business, which could just as easily be done in the chamber of the House concerned, were to lose any privileges or immunities which would undoubtedly apply if the matter had not been referred to a committee.

7.8 There is, in the Court’s view, considerable force to those arguments. There is one matter which might, however, point in the opposite direction. It is clear that there is something of a distinction between the language of Article 15.12 and Article 15.13 insofar as they relate to utterances. Article 15.13 provides for non-amenability in respect of utterances made by members in either House. The privilege provided for in Article 15.12 applies simply to “utterances made in either House” and is not, at least in its terms, confined to utterances made by a member of the House concerned.

7.9 It is, of course, the case that committees frequently hear from persons who are not members and who may be invited to attend a meeting for a whole variety of purposes. On the face of it, the constitutional privilege arising under Article 15.12 applies equally to utterances of non-members at a committee provided that utterances at committees attract the same privilege as utterances in the House concerned.

7.10 The fact that it may be relatively common to find non-members contributing at committees, but not in the Houses themselves, might be argued to suggest that the relevant immunities and privileges were not intended to apply to committees and thus extend potentially to non-members.

7.11 However, there is, in the Court’s view, an alternative view. While it may, in practice, be commonplace for non-members to appear at committees and highly unusual for non-members to speak in the Houses (distinguished international visitors being a potential exception) there is no absolute constitutional rule which distinguishes between the possibility of a non-member being invited to participate in committees but not in a House of the Oireachtas itself. There are, doubtless, all sorts of reasons both of practicality and of principle which support the current practice. But that practice is a matter for the Houses. If the Houses wish to invite persons to address them directly then they would be free to adapt standing orders to permit this in whatever circumstances might be deemed appropriate. The fact that it does not happen in practice and that there might be very good reason why the Houses would choose not to allow it to happen does not mean that there is any constitutional bar on non-members being permitted to make utterances in the Houses themselves.

7.12 Next, it is important to note that the extension of privilege to non-members, which appears to be implicit in the wording of Article 15.12, also relates to the conferring of privilege on the subsequent publication of reports of utterances. It will be necessary to return to the extent of the privilege provided for in Article 15.12 in due course. However, it is important to note that at least a main focus of that Article is to allow for the safe publication of what happens in a House and thus provide protection for those who may report on the business of the House concerned.

7.13 In that sense it can be said that at least a principal focus of Article 15.12 is to enhance public knowledge of what happens in the Houses in much the same way as the privilege which attaches to fair reporting of what happens in courts enhances public knowledge of the conduct of the business of the judicial arm of government. That is not to say that the privilege attaching to, respectively, utterances in the Houses and evidence or statements made in court, is designed solely to protect reporting. The privilege attaching to the business of a court is designed to remove what might otherwise be considered to be an impediment to the free conduct of judicial proceedings which might arise if persons participating in those proceedings were to be concerned that what they said might lead to further litigation. Likewise, the privilege conferred by Article 15.12 is undoubtedly designed to contribute to freedom of debate.

7.14 However, at the end of the day, the Court does not consider that the fact that the privilege conferred by Article 15.12 might, in practice, extend much more readily to non-members, if that privilege is considered to apply in the case of utterances made at a committee as well as in the House itself, provides a sufficient basis for holding that a committee does not enjoy the same immunities and privileges as the House or Houses which establishes it.

7.15 It is ultimately a matter for the Houses of the Oireachtas to decide how they carry out their business; whether certain aspects of their constitutional role should be conducted in the House itself or allocated to a committee. Ultimately, it seems to the Court that, where a committee is entrusted with carrying out a legitimate part of the constitutional function of a House or Houses of the Oireachtas, then that committee is “the House” for the purposes of Articles 15.10, 15.12 and 15.13 of the Constitution. It is a part of the House duly entrusted with carrying out the constitutional role of the House and, whatever may be the extent or limits on the privileges and immunities conferred by the relevant Articles, the committee enjoys them to the same extent as the House itself.

7.16 Ms. Kerins argued that, nevertheless, the provisions of Article 15 should be narrowly construed and limited to utterances made in proceedings in the Houses themselves. It was also argued that the enactment of s. 92 of the 2013 Act, extending privilege to utterances in committees, could only be viewed as consistent with the position that Article 15 did not itself extend to utterances or other proceedings of the Houses of the Oireachtas when sitting in committees. If so, any privilege was statutory only and had then to be construed by reference to, and tested against the provisions of, the Constitution including the personal rights guaranteed by, in particular, Article 40.

7.17 It should be said that this argument, while plausible, faces formidable obstacles. As long ago as 1808, it was held by the Supreme Court of Massachusetts in Coffin v. Coffin (1808) 4 Mass. 1, that the constitutional privilege extended to members when sitting in a committee:

“If a member, therefore, be out of the chamber, sitting in committee, executing the commission of the House, it appears to me that such members within the reason of the article, and ought to be considered within the privilege. The body of which he is a member, is in session and he, as a member of that body, is in fact discharging the duties of his office. He ought, therefore, to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his functions, as a representative, in committee, either in debating, in assenting to, or drafting a report.”
7.18 In Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227 Geoghegan J. agreed that the predecessor provision to s. 92 contained in the Committees of the Houses of the Oireachtas (Privilege and Procedure) Act 1976 had been enacted ex abundante cautela and that Article 15.13 would probably have covered utterances before committees without legislation. This view appears to have been accepted by the editors of Kelly, The Irish Constitution, 4th Ed., (Dublin, 2003), at paragraph 4.2.143. In Callely , O’Donnell and Clarke JJ. cited with approval the observations in Casey, Constitutional Law in Ireland , 3rd Ed., (Dublin, 2000), to the effect that it appeared to be generally accepted that the reports of a committee of a House or the Houses was entitled to the same status and privilege as a report of the Oireachtas itself.
7.19 The Court has also considered the report of the Attorney General’s Committee on the Constitution of August 1968. That committee was set up to advise the Attorney General on matters arising out of the Oireachtas All Party Committee Report on the Constitution of 1967. The Attorney General’s Committee contained a formidable range of legal expertise including but not limited to Mr. Justice Brian Walsh, Mr. Justice John Kenny, John A. Costello TD, SC, Thomas Connolly SC, Nial McCarthy SC, Anthony Hederman SC, Liam Hamilton SC, Donal Barrington BL, Matthew Russell BL, and Professor John M. Kelly. The Oireachtas Committee had asked for an opinion on the specific question of whether Article 15.12 gave privilege in respect of utterances by the Public Accounts Committee. The Attorney General’s Committee advised that “a committee of the House is the alter ego of that House and has no constitutional existence separate from the House. It would be odd if official committees’ publications were not privileged until adopted when both utterances of each House and utterances in each House by members are privileged (Article 15.12 and 15.13 respectively). It was considered therefore that committees are part of the House establishing them for this purpose, and that their official reports and publications and utterances made in committees are privileged”.

7.20 Given that almost by definition there is a relative scarcity of judicial decision and academic commentary on the precise legal limits of parliamentary privilege, this is an impressively consistent approach to the question. However, the same result could also be reached as a matter of first impression. While it is the unavoidable task of the courts under the Irish Constitution to enforce the sometimes difficult line between rights of the citizen and the privileges and immunities of the Oireachtas, that is not in any sense a process of unilateral limitation of parliamentary power. Where a privilege applies for the purpose contemplated by the Constitution, it is the obligation of the Court to give such privilege full and indeed generous application. It is apparent, for the reasons first identified in Coffin in 1808, that committees form an essential part of the workings of parliament and increasingly so in modern times. A member of the Oireachtas is discharging the duties of his office and is entitled to the privileges of that office within the boundaries set by the Constitution. The values underpinning Article 15 are therefore consistent with an interpretation which treats utterances in a committee as within the privileges and immunities conferred by Article 15.

7.21 There is, however, one further issue connected with the position of committees to which it will be necessary to return later in the course of this judgment. The underlying principle identified by the Court is that a committee doing the business of a House enjoys the same privilege and immunities as the House which entrusted it with doing that business in the first place. But a question potentially arises as to the applicability of that principle in a case where a committee acts outside the scope of its remit. In such circumstances the argument that the committee enjoys the same privileges and immunities as the House is undoubtedly weakened, for it is not carrying out a task entrusted to it by the relevant House or Houses but rather has exceeded its remit and is dealing with matters which are, in fact, none of its business. The argument in favour of a committee enjoying the relevant privileges and immunities in those circumstances is undoubtedly weaker.

7.22 As was noted earlier, there was an issue in this case as to whether the PAC did actually exceed its remit in dealing with many of the matters addressed to Ms. Kerins on the occasion in question. It is clear that the CPP considered that the PAC had, indeed, exceeded its remit, for it relied on that very fact to decline compellability powers. However, the question for this Court is as to whether it is open to the Court to consider whether a committee has exceeded its remit and if so finding whether by so doing it could be held that a committee had lost the privileges and immunities which the Constitution might otherwise confer. On the other hand, as noted earlier, there may be an argument as to whether questions concerning the remit of committees are quintessentially matters for the Houses provided that the House concerned could have conferred a relevant jurisdiction on the relevant committee. All of these are issues to which it will be necessary to return.

7.23 The next over-arching issue to which it is necessary to turn is the question of the extent to which it is possible for a court to consider evidence about what was said either at a committee or by the committee in the form of correspondence for the purposes of determining what a committee was actually doing. In reality that question concerns the extent to which the taking of evidence about what happened at a committee might itself be a breach of constitutional privileges and immunities.
8. Can the Court Hear Evidence of What Happened at a Committee
8.1 The issue which arises under this heading is as to the extent, if any, to which the Courts can hear evidence of what was said in a House or Houses of the Oireachtas (including a committee) or of the contents of documents emanating from those bodies for the purposes of determining and characterising what acts were being done by the body in question. On one view it might be said that a consideration of “utterances” which attract both privilege and non-amenability would be a breach of the very immunities conferred by Articles 15.12 and 15.13. On that basis it might be argued that hearing evidence about what was said, presumably for the purposes of reaching conclusions of fact which might potentially be adverse to the speaker, is in substance to breach the privilege or non-amenability specified in the Constitution.

8.2 However, it is of some considerable importance to assess whether that view is compatible with the consistent jurisprudence of the courts going back almost fifty years to In Re Haughey and continuing through cases such as Abbeylara, Callely and Curtin v. Dail Éireann [2006] 2 IR 556.

8.3 There were, of course, in some of those cases questions as to the extent to which some of the issues sought to be raised were themselves justiciable. It does not follow from the fact that a court may be entitled to look at what was said in the Oireachtas, for the purposes of determining what was being done by the Oireachtas, that the Court necessarily has any jurisdiction, at the end of the day, to assess whether what was being done was lawful. The question of whether it is permissible for a court to consider utterances as evidence which would enable the Court to assess what action the Oireachtas was engaged in is a separate question to whether the Court is entitled to review that action having regard to the separation of powers. In this section of this judgment the Court is not, therefore, considering whether, or on what basis, the actions of the Houses may be reviewed by a court. Rather, the Court is considering the narrower question of whether there is any barrier to the Court considering evidence and reaching conclusions about what those actions actually were, where the evidence concerned amounts to utterances made in the Houses or their committees or documents emanating from those bodies. It is against that narrower backdrop that it is necessary to look at the evidence that was considered in the cases to which reference has been made and the conclusions of fact which were reached as a result of that evidence.

8.4 In re Haughey concerned an examination by the PAC itself of the expenditure of a certain grant-in-aid for Northern Ireland relief and any monies transferred by the Irish Red Cross Society to a bank account into which monies from that grant-in-aid were lodged. On the 23rd December 1970, the Oireachtas passed the Committee of Public Accounts of Dail Éireann (Privilege and Procedures) Act 1970 (“the 1970 Act”). Section 3(4) of the 1970 Act provided that, if any witness before the committee refused to answer any question to which the committee might legally require an answer, the committee might certify the offence to the High Court and the High Court might, after such inquiry as it thought proper, punish the witness as if they had been guilty of contempt of the High Court. Serious accusations were made against Mr. Haughey before the PAC by another witness. Mr. Haughey subsequently attended before the PAC but refused to answer any questions. The chairman of the PAC certified that an offence under s. 3(4) of the 1970 Act had taken place. Mr. Haughey was sentenced to six months’ imprisonment by the High Court. Mr. Haughey appealed that conviction to this Court.

8.5 This Court had clear regard to evidence of what took place before the PAC and, based on this evidence, made certain factual findings. This can be seen in the second set of judgments of the Court, in particular the judgment of Ó Dalaigh C.J., concerning the grounds of appeal raised by Mr. Haughey which did not relate to the constitutionality of the 1970 Act (that issue being the focus of the first, sole judgment of the Court). First, reference should be made to Mr. Haughey’s complaint that the certificate made under the hand of the chairman of the committee was not made with sufficient particularity, in that it gave no particulars of the questions which Mr. Haughey had allegedly refused to answer (this being the behaviour which constituted an offence under the 1970 Act). Ó Dalaigh C.J. made the following observations in this context:-

“The certificate is the only document in which will be found the complaint that the witness has to answer. It should, therefore, furnish all necessary particulars. In this instance these should include the question or questions which it is alleged the witness refused to answer and, coupled with this, an assertion that the Committee could legally require an answer to such question or questions. The transcript of the proceedings discloses that when Mr. Haughey had made his preliminary statement and had dialogue with the chairman of the Committee, the Committee retired and, after an interval of about three-quarters of an hour, it resumed its public sitting and thereupon the chairman put certain questions to Mr. Haughey with the object of reminding him of the possible consequence of his refusal to answer them, and then the chairman asked him two specific questions to which the chairman failed to elicit answers. The chairman, it would appear, thought it necessary—and correctly so—to have on record the specific questions which were put, together with the refusals to answer them, for the purpose of certifying an offence under sub-s. 4 (b) of s. 3 of the Act; of 1970 . This point does not appear to have been pursued in any great detail in the High Court where the view was erroneously taken that Mr. Haughey’s initial statement, in which he indicated that he would not answer questions for the reasons which he gave, constituted an offence under sub-s. 4 (b ). If this conduct constituted an offence, it fell to be dealt with under sub-s. 4 (d) which makes it an offence to do anything which would be contempt of court if the Committee were a court of justice having power to commit for contempt. The offence created by sub-s. 4 (b) is the offence of refusing to answer questions to which the Committee may legally require an answer. Quite clearly the Committee is not legally entitled to an answer to any question which is not relevant to the proceedings and which is not within its terms of reference; before anyone can be convicted of a refusal to answer a question, contrary to sub-s. 4 (b), the court would have had to be satisfied that the question put was relevant and within the terms of the inquiry. The court could not so satisfy itself unless a specific question, or questions, has or have first been put.”
(Emphasis added)

8.6 Also of relevance is the analysis of Ó Dalaigh C.J. in relation to Mr. Haughey’s complaint that his rights under Article 40.3 of the Constitution were, or would be, disregarded having regard to the procedures of the PAC. At p. 261, Ó Dalaigh C.J. summarised Mr. Haughey’s complaint in this regard as follows:-
“As to the procedures of the Committee, Mr. Haughey’s complaint is that in the special circumstances in which he found himself a witness, the procedures of the Committee failed to protect his rights under Article 40 of the Constitution. The procedures determined upon by the Committee in its interim report of the 1st December, 1970, by clause (iii) provide, inter alia , that:—‘the Committee will allow witnesses to be accompanied solely for the purpose of consultation by counsel, solicitor or advisers, as may be determined by the Committee in each relevant case. Such counsel, solicitor or advisers will not, however, be permitted to examine any witness nor to address the Committee.'”
8.7 The judgment went on to set out certain facts regarding the conduct of the proceedings before the Committee. It is worth quoting these passages in full:-
“The special circumstances in which Mr. Haughey appeared before the Committee were these. A week earlier, at the public sitting of the Committee on the 9th February, 1971, evidence was given by Chief Superintendent John P. Fleming. The Chief Superintendent at the outset explained the nature of the evidence which he proposed to give: all his information was, he said, from confidential sources which he was not at liberty to reveal. In terms of the law of evidence the entire of the evidence which he was about to offer was hearsay evidence.
The evidence in question purported to indicate (i) that Mr. Haughey had paid over money to the Chief of Staff of the I.R.A. in London; (ii) that Mr. Haughey was deeply involved in meetings with a certain I.R.A. Leader after August or September and in promising funds for the I.R.A. in the North; (iii) that Mr. Haughey made all the arrangements at Dublin Airport sometime early in October to take in a consignment of arms and handed same over to two leading I.R.A. men; (iv) that Mr. Haughey went to London on the 16-17 November, 1969, for the purpose of purchasing arms; (v) that Mr. Haughey or Captain [ name given ] could well have been involved in other arms shipments.

As to item (iii), when asked if he had any knowledge of the source of the moneys which paid for the arms, the Chief Superintendent said:—‘I imagine it came from the grant-in-aid fund.’ As to item (v), relating to the other arms shipments in which Mr. Haughey may have been involved, the witness said that he had no direct evidence and that ‘it was speculation or rumour .’ The italics are mine.”

8.8 After setting out the foregoing, the Court then characterised Mr. Haughey’s position, and the conduct of the proceedings by the PAC, in the following terms, at p. 262 of the report:-
“Therefore, the position of Mr. Haughey was that at a public session of the Committee held on the 9th February, 1971, he had been accused of conduct which reflected on his character and good name and that the accusations made against him were made upon the hearsay evidence of a witness who asserted that he was not at liberty, and therefore was not prepared, to furnish the Committee with the names of Mr. Haughey’s real accusers. The question which arises in these circumstances is what rights, if any, is Mr. Haughey entitled to assert in defence of his character and good name? It should be noted that, in the statement which he read to the Committee on the 17th February, 1971, he denied on oath that he had been connected, in any way, with the expenditure of moneys issued out of Subhead J of Vote 16.”
8.9 Later, at p. 263, Ó Dalaigh C.J. stated:-
“In my opinion counsel is right in his submission that Mr. Haughey is more than a mere witness. The true analogy, in terms of High Court procedure, is not that of a witness but of a party. Mr. Haughey’s conduct is the very subject matter of the Committee’s examination and is to be the subject matter of the Committee’s report.”
8.10 It is true that regard has to be had to the fact that, in In Re Haughey , the jurisdiction of the Court was necessarily involved, for the relevant legislation required the matter to be brought before a court before an order could be made. In that sense it might be said that the legislation itself necessarily conferred on the courts a role in assessing the conduct of the proceedings before the PAC in that case. On the other hand, a reading of the judgments does not suggest that this was the sole, or even the predominant, reason why the courts took the view that they were entitled to assess the lawfulness of the procedures adopted. On that basis, and while acknowledging the particular statutory regime which was under consideration in the case, the Court does consider that it is necessary to have proper regard to the reasoning of this Court in Re Haughey in assessing whether the jurisprudence supports the argument put forward on behalf of the PAC and the State respondents to the effect that the narrow range of justiciability and factual review which is constitutionally permitted is confined, in substance, to cases where the coercive power of the State is applied to citizens.
8.11 In Abbeylara , the background to which has been set out briefly above, it is also clear from the judgments of this Court that the Court saw no impediment to examining the output of the sub-committee to determine what sort of activity that committee was engaged in. For example, Denham J., under the heading “Nature of Inquiry”, stated as follows:-

“The nature of the inquiry in issue was described by the High Court. I summarise their findings. On the 19th/20th day of April, 2000, an incident occurred in Abbeylara, County Longford, during which Mr. John Carthy was shot dead by a garda or gardaí. Chief Superintendent Culligan submitted a report to the Garda Commissioner on the 28th June, 2000. The Garda Commissioner reported to the Minister for Justice, Equality and Law Reform. The Minister placed the report before Parliament which referred it to a Joint Committee of both Houses. The Joint Committee considered it and submitted it to both Houses. The report was published. Submissions were invited and received by the Joint Committee. On the 8th of March, 2001 the Joint Committee purported to establish a sub-committee. It is that reference and the work of that sub-committee which is the subject of this judicial review. The High Court held that it was quite clear that the sub-committee perceived its task as being one requiring it to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact as in the opinion of the sub-committee arose directly or indirectly from oral or documentary evidence.”
8.12 Denham J. continued:-
“Those findings, if considered appropriate, could include a finding of the unlawful killing of Mr. Carthy by an identifiable garda or gardaí. The gardaí have been compelled to attend and give evidence. A failure to attend and comply could have the consequences set out in the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. In these circumstances the sub-committee saw itself as having an adjudicative function, that it was entitled to make findings on the evidence tendered before it. All of the applicants are members of the Garda Síochana who have been directed to attend before the sub-committee in order to give evidence to it. Amongst the applicants are the officers who shot Mr. Carthy. The considerations of this committee may give rise to findings of fact or to conclusions which could adversely affect or impugn the good name of any person, including the gardaí. The Committee could conclude that an unlawful killing took place by an identifiable garda or gardaí.”
8.13 McGuinness J., in analysing the extent to which the Abbeylara sub-committee fell within the ambit of the inherent power of the Oireachtas to acquire information in aid of its constitutional functions, set out a detailed account of the nature of the sub-committee:-
“The terms of reference of the Abbeylara Sub-committee on the other hand at no stage contained any reference to either the amendment of existing legislation or the promotion of new legislation. It might conceivably be argued that the original resolutions of the Houses, which directed the main Committee and its Sub-committee to consider the report of Superintendent Culligan and the submissions received concerning it, could be directed towards possible proposals for legislative change concerning the structure, management and control of the Garda Siochana. It is, however, a strained interpretation and as matters developed the Sub-committee moved further away from this legislative purpose. It is abundantly clear from the statements made by the members of the Sub-committee, the powers with which they had provided themselves, and the programme which they had laid out for their inquiry, that they did not see themselves as having a legislative purpose. By no stretch of the imagination could the type of inquiry which the Abbeylara Sub-committee actually intended to carry out be described as primarily, or indeed even peripherally, directed towards producing proposals for legislation. The type of inquiry which the Sub-committee envisaged is clearly shown not only in the amended Terms of Reference and the extended powers which it acquired but also in the public statements made by its members to the media and in the very transcripts of its proceedings. The Sub-committee could not and did not, of course, administer justice, but it clearly saw itself as having an inquisitorial and adjudicative role in relation to the culpability of individuals, in particular individual Gardai. Its self-appointed task was to find the facts and to attribute blame by way of a public and deliberately publicised procedure.”
8.14 Perhaps an even clearer example of this approach can be seen in the judgment of Hardiman J. in Abbeylara . Under the heading “Issues in the Inquiry”, Hardiman J. referred to a document produced by the sub-committee in that case entitled “Statement of Issues and List of Witnesses”. Hardiman J. went on to refer to specific questions asked by members of the sub-committee to witnesses. Hardiman J. relied on the foregoing, amongst other things, to reach a conclusion as to the nature of the inquiry being undertaken by the sub-committee. It is important to note that Hardiman J. appeared to view this as a logically prior step before continuing on to consider whether the inquiry was authorised in law, stating, “Having ascertained the nature of the proposed inquiry it is possible to pose this question.” A similar approach is evident in the other judgments of this Court in Abbeylara .
8.15 Reference might also be made to the judgment of this Court in Curtin . That case concerned a proposal to remove a judge from office by means of a resolution of both Houses of the Oireachtas, pursuant to standing orders purporting to apply Article 35.4.1 of the Constitution. The judge in question sought to challenge, amongst other things, the constitutionality of the procedures adopted by a joint committee established for the purposes of taking evidence in relation to his proposed removal from office. The judge also challenged the constitutionality of certain legislative amendments which gave the joint committee in question the power to order that evidence be produced. Of relevance to the present judgment is the detailed description of the activities of the joint committee to be found in the judgment of this Court delivered by Murray C.J., under the heading “Proceedings of the Joint Committee”. This section of the judgment includes descriptions of correspondence sent by the joint committee and certain events during proceedings before the committee. This is in line with the approach of this Court in In re Haughey and Abbeylara .

8.16 Finally, reference should be made to the judgments of this Court in Callely and in particular the joint judgment of Clarke and O’Donnell JJ., referred to earlier. Callely concerned allegations of impropriety regarding the manner in which Senator Callely had made claims for his expenses. Formal complaints by members of the public in relation to such matters were ultimately referred to the Committee on Members Interests of Seanad Éireann. That committee conducted hearings in relation to the complaints and ultimately concluded that Senator Callely had misrepresented his normal place of residence for the purposes of claiming expenses. Following the publication of the committee’s report detailing its findings, Seanad Éireann passed a resolution censuring Senator Callely and resolved that he be suspended from the House for a period of 20 days and that his salary not be paid for the duration of that suspension. In the High Court, Senator Callely successfully sought an order of certiorari quashing the committee’s report and certain other consequential relief. The committee and the Seanad appealed to this Court. A central issue before this Court on appeal was justiciability. However, before considering that question, the joint judgment goes into some detail regarding the background facts to the complaint against Senator Callely as well as the proceedings of the committee including events before the committee at public hearing, correspondence sent from the committee and the report of the committee referred to previously. The judgment of Hardiman J. goes into similar detail, referring to specific documents issued by the committee such as its “Statement of Contravention”, being the document initiating the committee’s process against Senator Callely. The same is true of the judgment of McKechnie J.

8.17 It can be seen, therefore, that this Court has regularly considered evidence as to what took place at hearings of a committee of the Oireachtas (and documents sent on the instructions of such a committee) for the purposes of determining what action was being engaged in at the time in question. It, of course, does not follow from the fact that the Court considered such evidence and reached conclusions of fact based on it, that the question of the lawfulness or otherwise of the actions in which the Oireachtas was engaged is itself justiciable. Indeed the approach of Hardiman J. in Abbeylara in that regard is instructive. Evidence as to what had transpired at the committee was considered for the purposes of determining and characterising the type of action which the committee was engaged in. It was only then that there was an assessment of whether the question of the lawfulness or otherwise of the actions of the committee thus characterised was justiciable.

8.18 Put the other way around, it is clear, therefore, that taking evidence of what actually transpired at a committee does not in itself breach the immunities conferred on the Houses of the Oireachtas. However, it does not follow from that conclusion that any such evidence may be relevant to a justiciable issue, for the question of whether the courts can, without breaching the privileges and immunities conferred by Article 15, consider the lawfulness of the actions of a committee is separate to the question of whether the courts can, at least in principle and should it prove relevant to a justiciable issue, consider evidence of what transpired at a committee for the purposes of determining the action in which that committee was engaged. It should be noted in this regard that, even within the significantly wider immunities claimed by parliament in the Westminster model, it appears to be accepted that evidence of what is said in parliament may be received without breaching any privilege in order to determine what was done. See Prebble v. Television New Zealand Ltd . [1995] 1 AC 321.

8.19 The Court is, therefore, satisfied that it is permissible to hear and consider evidence concerning the conduct of the business of a committee of the Houses of the Oireachtas without, in and of itself, that course of action breaching the privileges and immunities conferred by Article 15. But it follows that it is also then necessary to go on to consider whether the questions of the lawfulness of the types of action of the Houses or their committees sought to be challenged in this case are themselves justiciable. If not justiciable then any evidence of such action would not be relevant for it could not influence a justiciable issue. As noted earlier the first question to be addressed under that heading is as to whether Articles 15.10, 15.12 and 15.13 provide an absolute barrier to court intervention. In that context it is appropriate to make some observations on the use of comparative materials.

8.20 It is inevitable that, when considering the history and nature of parliamentary privileges in a bicameral system, reference will be made to the privileges afforded to parliament under the Westminster system. Such references can be very helpful, not least because parliamentary privileges were first developed and asserted in the constitutional developments in the United Kingdom, and those privileges identified in the 1922 and 1937 Constitutions undoubtedly looked to that history when determining the privileges which it was necessary to establish for the Oireachtas. But it is important to read such authorities (and history) with an awareness of the important constitutional distinctions in the law of Ireland and that of the United Kingdom.

8.21 One of the distinctive features of the position in the United Kingdom is that, apart from some fundamental and landmark pieces of legislation, privileges are a matter of long-standing constitutional convention, claimed by parliament and conceded by the courts. While most of the privileges commonly asserted relate to the functioning of parliament, and are still relevant today, the claim of privilege was rooted in the fact that parliament claimed the powers of a court to adjudicate on matters within its jurisdiction. Thus, it claimed a jurisdiction of exclusive cognisance, that was the right to adjudicate on all matters coming within the walls of parliament. But it is an error to assume that, because the drafters of the 1922 Constitution took the Westminster practice as a starting point for those privileges which they wished to entrench in the Constitution, they sought to imitate Westminster practice in every respect, such that the law in Ireland could be understood by reference to practice in the United Kingdom. In fact, it appears clear that a more limited course was taken. This appears most clearly when the provisions of Articles 18, 19, 20 and 23 of the Irish Free State Constitution are compared with the immediate preceding legislation then in force governing the operation of parliaments on the island of Ireland. Section 18 of the Government of Ireland Act 1920 provided that both the parliament of Northern Ireland and that of Southern Ireland established by that Act should have such powers, privileges and immunities as may be defined by Act of the parliament and until so defined “shall be those held and enjoyed by the Commons House of Parliament of the United Kingdom and its members and committees of the date of the passing of this Act”. The more limited scope of the privileges established under the 1922 Constitution (and essentially reproduced in Article 15 of the 1937 Constitution) was first noted by Kohn, The Constitution of the Irish Free State , (London, 1932), at p.229:

“The wide sphere of parliamentary privilege, the repository in the British Parliament of latent powers of extensive scope, has been restricted by the Irish Constitution within the narrow limits of practical expediency.”
8.22 Accordingly, if there is an absolute barrier to the scrutiny of actions of the Houses of the Oireachtas or their committees, it is not to be determined by lazy analogy with current or historic practice in the United Kingdom. Rather it is to be determined from what is to be deduced from the text and structure of the Irish Constitution. This narrower view of parliamentary privilege is traced in an insightful article (Murray, “Judicial Review of Parliamentary Proceedings” in The Irish Constitution: Governance and Values , Carolan and Doyle (eds.) (2008)) and is now well established.
8.23 Any comparison with the United Kingdom model must also take account of a different feature. Apart from the provisions of a small number of foundational statutes, the content of the privileges and immunities of parliament in that jurisdiction are a matter of long-standing constitutional convention. While their longevity is the basis of the respect which is afforded to them, their essential nature remains malleable so that they can be altered or replaced by legislation, or indeed practice. Thus, in 1971 the House of Commons at Westminster simply resolved that it would no longer entertain any claim of breach of privilege in respect of publication of debates. This flexibility is not a feature of a constitution which entrenches rights and prescribes privileges. The courts’ task is to interpret the Constitution and attempt to ascertain the extent of the privileges afforded by the Constitution to members of the Oireachtas, and to give effect to them. Having made those observations, it is now necessary to turn to the question of whether there is an absolute barrier to justiciability.
9. Is there an Absolute Barrier?
9.1 It is clear that there are at least some circumstances in which the actions of the Houses of the Oireachtas or their committees can be the subject of scrutiny by the courts for the purposes of determining whether those actions are lawful. The courts have intervened in cases such as in Re Haughey and Abbeylara . Furthermore, the majority view on that issue in Callely suggested that the courts could have intervened in support of Mr. Callely’s position had a differently constituted majority not been satisfied that there was nothing unlawful about the actions of the committee in question.

9.2 However, it is argued on behalf of the PAC and the State that those cases are specific and limited. In that regard reliance is placed on the fact that both Re Haughey and Abbeylara involved a situation where the committee in question had, as a matter of law, direct power over citizens who are not members of the Houses which enabled those citizens to be required to attend and answer questions. Indeed, an analysis of In Re Haughey shows that the matter went further for, having regard to the structure of the legislation being deployed in that case, it was clear that the Oireachtas needed to invoke the jurisdiction of the court to impose a penalty on a witness who refused to answer a question. Also, it has to be said that the actions which lay at the centre of Callely were only held to be justiciable because the committee in question was exercising statutory powers. A majority (including Fennelly J. who formed part of the majority on all issues in that case) would have held that the issues would not have been justiciable had the committee in question been acting solely on the basis of standing orders.

9.3 On the basis of that analysis the PAC and the State respondents argue that the conduct of a committee is not justiciable except in the limited circumstance where the committee seeks to invoke or deploy a legal power to compel the attendance of witnesses or the production of evidence in some other form. It is accepted that the exercise of such a legal power over a citizen necessarily carries with it an entitlement on the part of the courts to review the lawfulness of the way in which that legal power is being exercised.

9.4 It should, however, be noted that the courts in those cases did not confine themselves to assessing whether the use of a coercive power over the citizen was properly exercised. It is one thing, for example, for a court to declare that a statutory power to compel the attendance of a witness or the production of documents had not been properly exercised due to some failure to comply with the statutory regime conferring the power, but another thing for a court to analyse the underlying lawfulness of the business of a committee or the procedures which it intended to follow. It is again clear that the issues considered in Haughey , Abbeylara and Callely went beyond a simple analysis of whether the relevant statutory power had been exercised properly. Haughey was quintessentially concerned with the fairness of the procedures adopted by the PAC not least in the context of the fact that witnesses giving evidence adverse to Mr. Haughey would enjoy privilege in circumstances where Mr. Haughey would have no right to ensure their cross-examination. Abbeylara was concerned with the underlying validity in principle of the type of inquiry which the committee had proposed to carry out. Callely was concerned with the procedures followed by the committee and with the question of whether it would have been open to the committee to reach the conclusions which it did in the light of the evidence and materials which was before it. The review conducted in those cases, therefore, undoubtedly extended beyond an assessment of the validity of the manner in which the coercive power of the State had been invoked and went so far as to consider the underlying validity of the scope of the committee’s role and the process which it intended to follow.

9.5 On that basis, it does not seem to necessarily follow from the fact that, as it happens, all of those cases involved coercive power, the jurisdiction of the Court to assess legality is confined only to such cases.

9.6 On the other hand, it seems clear that the privileges and immunities conferred on the Houses by Articles 15.10, 15.12 and 15.13 are designed to ensure freedom of debate and the free exercise of the other constitutional roles of the legislature such as holding the government to account and providing representation for the people on matters of genuine public interest. It follows that there must be a significant area of privilege and immunity. It follows in turn that there must be areas where, even though a citizen may be affected adversely by what goes on in the Oireachtas, there can be no recourse to the courts. If rights were not infringed or parties affected then there would, of course, be no basis for seeking a remedy in the courts in the first place. There would, it follows, be no need for any privilege or immunity for there would be nothing against which the privilege or immunity would be required to be exercised. By definition a privilege or immunity only makes sense in the context of the fact that there may be something which would otherwise be justiciable were it not for the existence of the privilege or immunity concerned.

9.7 It follows in turn that the mere fact that someone can say that they have been unlawfully affected by what goes on in the Oireachtas cannot provide a justification for the intervention of a court, for if that were to be so the privileges and immunities which the People have expressly written into the Constitution by means of the relevant clauses of Article 15 would be of very limited value. It is on that basis that the PAC and the State respondents argue that there is an absolute barrier to justiciability save only in those limited cases where the Oireachtas seeks to exercise a legal power over the citizen. The first question which arises is, therefore, as to whether, and subject only to that limitation, the privilege or immunity attaching to the Oireachtas is absolute.

9.8 A possible starting point for an analysis of that question is to address the hypothetical situation put forward in argument against Ms. Kerins. What would have been the situation, it was asked, if, instead of inviting Ms. Kerins to attend before the committee, there was simply a debate in the Dail or the Seanad on relevant issues concerning Rehab in which speeches were made which were potentially just as damaging to her reputation as the utterances which actually occurred at the PAC. It was rhetorically asked as to how, having regard to the clear privilege and immunity conferred in respect of utterances, there could be any proceedings legitimately brought in those circumstances. That would continue to be so, it was said, even if there was something fundamentally unfair about the way in which a deputy or deputies addressed those questions in the course of such a debate and even if, for example, it could be established that what the deputy said was incorrect and, indeed, that the deputy had no reasonable basis for making the suggestions contained in his or her speech. It was accepted that there might be circumstances in which a deputy might be in breach of standing orders in such a situation and might be amenable to punishment in accordance with standing orders. But, it is said, it is no place of the Court to assess the circumstances in which speeches might have been made or the damage done by them to a citizen for such matters are clearly placed outside the scope of the Court’s competence by the Constitution.

9.9 But, the argument goes, if the Court has no competence to interfere in a situation such as that just described, what is, in truth, the difference which would allow a court to intervene in the circumstances of this case. The damage done could be equally great. Any lack of fairness which might be capable of being established in the circumstances of this case might be replicated. There would, it is said, be no difference of substance in either the cause or the consequences but nonetheless, if Ms. Kerins be correct, she is entitled to the intervention of the Court in the circumstances of this case but not in the hypothetical case which has just been outlined.

9.10 There can be little doubt but that thus put a difficult question is raised. If it is true that persons can be damaged, without remedy in the courts, by at least some matters which may occur in the Houses of the Oireachtas, what then might be said to bring a particular case over the line whereby the courts have jurisdiction to intervene. On the basis of the authorities analysed earlier, it is clearly the case that that line is passed when the coercive power of the State is exercised. But the real issue is as to whether the exercise of coercive power is the limit of the line or whether the principle may be, perhaps, somewhat more general with the coercive power example simply being an application of that more general principle.

9.11 Looked at from a different perspective, the question raised can be seen to derive from an issue as to the extent of the immunities conferred by the relevant sub-Articles of Article 15. Would it amount to a breach of the entitlement of the Houses to “ensure freedom of debate” to enable a court (as opposed to the Houses themselves) to consider whether a citizen had been affected by unlawful actions in the course of such debate. Would it be a breach of the privilege conferred by Article 15.12 for the Court, likewise, to consider whether a like effect had occurred. Would it be a breach of the requirement that utterances made in the Houses are not to be amenable to anybody outside the Houses to enable the Court to consider unlawfulness in a case such as this. The Court is not persuaded that Article 15.10 adds very much to the immunities relevant in the circumstances of this case. Whatever may be the extent of the immunities conferred by Articles 15.12 and 15.13 they do go some way towards protecting freedom of debate. It may well also be that, insofar as freedom of debate may be regulated by standing orders, the only remedy for a breach of those orders may be that an infringing member of the Houses of the Oireachtas may be subject to whatever penalties standing orders provide.

9.12 However, it does not follow that the Houses of the Oireachtas have any greater power, beyond the express privileges and immunities specified in Articles 15.12 and 15.13, to, as it were, prevent the courts from being able to determine the lawfulness of the actions of the Houses where those actions affect a citizen. That is not to say that there may not be other cases where Article 15.10 becomes important but, in the circumstances of this case, where the complaint of a citizen involves an allegation of having been affected by what is said to have been the unlawful actions of a committee of the Dail, it seems to the Court that the real question is as to the extent of the privilege or non-amenability conferred by Articles 15.12 and 15.13. That in turn seems to come down to three questions. What is the nature of the privilege specified in Article 15.12? What does non-amenability mean in Article 15.13? What constitutes utterances for the purposes of both of those Articles?

9.13 The term privilege is one which is used somewhat differently in different contexts. Legal professional privilege, for example, allows a party to decline to reveal the contents of legal advice or information imparted for the purposes of obtaining legal advice. In the main it is deployed to prevent the compellability of what might otherwise be admissible and compellable evidence. On the other hand, the privilege which exists in respect of the reporting of certain types of events, such as fair and accurate reports of court cases, is designed to prevent people from being sued for what might otherwise be actionable statements such as those which are defamatory. Similar considerations exist in respect of the qualified privilege which attaches to other types of communication. From the context of Article 15.12 it seems clear that it is a privilege of that latter type which is, at least principally, involved. The Article goes on to refer to privilege attaching “wherever published”. That seems to imply that the principal focus of Article 15.12 is to ensure that there can be free debate in the Houses and that those who report on that free debate can themselves be immune from suit. But it does not follow that evidence of what is said in the Houses (or their committees) cannot be used to determine the actions of the House or committee concerned or that the actions of the relevant House or committee are necessarily immune from suit.

9.14 Like considerations apply in respect of the utterances referred to in Article 15.13. There can be no doubt but that an action seeking to make an individual member of the Houses of the Oireachtas liable for something said in the House or at a committee would constitute a clear breach of the non-amenability requirements of Article 15.13. But it does not necessarily follow that the actions of a committee cannot be reviewed by a court in order to determine whether those actions are lawful and, in turn, whether those actions may not have unlawfully affected a citizen. Two subsidiary questions seem to the Court to arise from that analysis. The first is the question as to who or what entity might properly be sued in respect of an allegedly unlawful action of a House or its committees without infringing the obligation not to make the members in question amenable to the Court. The second issue is to consider what might properly be regarded as an “action” of a House or committee which could be divorced from “utterances” so as to be capable of being reviewed without impinging on the immunities conferred on the Houses.

9.15 So far as the first of those questions is concerned it seems to the Court that the Houses of the Oireachtas collectively, and the Dail and the Seanad individually, are constitutionally recognised entities which are capable of being themselves a proper defendant in proceedings. There is no reason in principle why either the Houses collectively or individually could not be named as a defendant. To do so would not be to seek to make any individual member of either House “amenable” but rather to make the Houses themselves responsible for their actions if those actions be unlawful, have affected a citizen and are not protected by any privilege or immunity. There may very well be limitations on the extent to which questions of that type might be justiciable, but the Court does not see any reason why, in principle, proceedings of that type could not be brought while at the same time respecting Articles 15.12 and 15.13. Indeed, it is appropriate to note that the Clerk of the Dail is named as the fourteenth named respondent in these proceedings.

9.16 However, for it to be the case that a House of the Oireachtas could be the subject of proceedings because of the actions of a committee, then it would be necessary that the action complained of was, at a minimum, reasonably considered to be an action of the House or Houses concerned rather than the action of an individual member or group of members of the Oireachtas. The Houses are not responsible for the individual actions of their members. The members are not amenable for what they say in a House or its committees. But if it can be determined that the House itself, collectively, engaged in an action which was unlawful and affected a citizen, then there is no reason in principle why that might not be justiciable without infringing Articles 15.12 and 15.13. It may be difficult to conceive of practical circumstances in which, given the latitude necessarily afforded to proceedings in the Houses of the Oireachtas, it would be determined that a House was acting unlawfully so as to give rise to proceedings of the type contemplated in this paragraph. For the purposes of illustration however, if, for example, the Houses of the Oireachtas were to assert the power to arrest and punish citizens in the manner previously asserted by the Houses of Parliament in Westminster, and vividly recorded in the judgment of Watkins v. United States (1957) 354 US 189, then that would be clearly outside its power, unlawful and could be the subject of proceedings.

9.17 That leads to the question of a committee. However, the whole reason why this Court has concluded that a committee enjoys the same constitutional privileges as a House, when carrying out the legitimate constitutional work of that House, is because the House has delegated a particular part of its work to the committee concerned. But that cuts both ways. It logically follows that the House must be responsible for what the committee does on its behalf. It follows in turn that a House of the Oireachtas (in this case the Dail) can be responsible for the actions of one of its committees if that committee acts unlawfully and thereby affecting a citizen. It also follows that, since the jurisdiction of a committee is limited by the terms of delegation to it, it may be possible to determine more readily that a committee has exceeded the bounds of its delegation.

9.18 On the basis of that analysis there ultimately are two competing matters which need to be balanced. On the one hand there is no reason in principle why a House or the Houses of the Oireachtas cannot be responsible for unlawful actions taken by a committee of the House concerned which had the effect of affecting a citizen. On the other hand, the underlying purpose of Articles 15.10, 15.12 and 15.13 is to facilitate free speech within the Houses so that the constitutional functions of the Oireachtas can be conducted with only limited interference by the courts. Clearly, these two objectives can come into conflict but it is at least clear that there are certain circumstances in which the courts can review the actions of Dail committees to determine their lawfulness.

9.19 In the view of the Court an analysis of the judgments in the separation of powers cases already referred to, and in particular those in Re Haughey and Abbeylara , do not support the narrow view of the extent of justiciability of the actions of the Houses or their committees which is argued for by the PAC and the State respondents. While it is true that each of those cases involved some element of coercive power, a reading of the judgments concerned does not support the view that the existence of that coercive power was decisive in providing a reason for departing from what might be said to be an otherwise absolute immunity.

9.20 Insofar as the majority on the justiciability issue in Callely (which included Fennelly J. and those judges who were ultimately in the minority as to result) might be said to have determined justiciability on the basis of the fact that the Oireachtas in that case was operating under a statutory regime, it does not seem to this Court that such an analysis supports the argument now put forward. The core issue in Callely was as to the extent to which there might be a difference between the justiciability of issues relating to, on the one hand, members of the Houses and, on the other hand, citizens outside the Houses. The argument turned on a number of dicta in previous cases, not least in Abbeylara , in which a distinction between the position of members and non-members was not only referred to but considered to be important. In that sense it might be said that it is implicit in all of the judgments in Abbeylara that the actions of the Houses of the Oireachtas and their committees might, in principle, be reviewable where they affect citizens but that there may be an exception in the case of members (at least, having regard to the judgment of Fennelly J. which was critical in forming the majority in that regard, where standing orders rather than a statutory regime is invoked). It is true that there is a discussion in the joint judgment of O’Donnell and Clarke JJ. in Callely as to how, if actions of the Oireachtas in respect of a member were reviewable, that might be reconciled with the specific privileges contained in Articles 15.12 and 15.13, but also having regard to the separation of powers and the area of autonomy implied in Article 15.10. But it does not seem to this Court that there is anything in that discussion which provides an adequate basis for suggesting that this Court, in Callelly , came to a view which is consistent only with there being an absolute barrier to justiciability save in cases where a coercive power is exercised.

9.21 However, even though a proper analysis of those judgments does not support the narrow case for reviewability made on behalf of the PAC and the State, it is clear that there remains a wide area of non-justiciability in respect of the actions of the Houses or their committees. First, it must be said that full effect needs to be given to the clear prohibitions which are expressly set out in the relevant Articles of the Constitution. To make a member of a House of the Oireachtas amenable to a court in respect of something said in the House or in a committee, would be a clear breach of Article 15. It also seems to the Court to follow that that which cannot be achieved directly cannot be achieved by collateral means. It would clearly be impermissible to ask a court to intervene in a way which would, by necessary implication, require the Court to at least indirectly make a member amenable or breach a privilege conferred on a member. Thus, there is a clear area of non-justiciability which surrounds utterances made in the Houses or their committees or matters which are sufficiently closely connected to such utterances as to enjoy the same privileges and immunities.

9.22 In addition, there is, in the Court’s view, a clear need for courts to be careful in respecting the separation of powers provided for in the Constitution.

9.23 In Abbeylara , Keane C.J., while dissenting as to the ultimate outcome of the appeal, upheld the jurisdiction of the courts to protect the constitutional rights of citizens even as against the Oireachtas, but noted that, out of respect for the separation of powers, the courts should not accept every invitation to intervene. After setting out Articles 15.10, 15.12 and 15.13, Keane C.J. stated:-

“These extensive immunities and privileges, denied to citizens who are not members of the Houses of the Oireachtas, are an important feature of the parliamentary democracy established under the Constitution. Neither these provisions, however, nor any other provision of the Constitution expressly exempt from scrutiny by the courts the actions of the Oireachtas or its individual members save to the extent specified in Article 15.12 and 13.
That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution.”

9.24 This view is also consistent with the judgment of the Supreme Court in O’Malley v. An Ceann Comhairle [1997] 1 I.R. 427, 431, where O’Flaherty J., upholding the refusal of leave to seek judicial review of the decision of the Ceann Comhairle, observed how questions should be framed “is so much a matter concerning the internal workings of Dail Éireann that it would seem inappropriate for the Court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment”. The limitation on the courts’ exercise of a jurisdiction to intervene was seen as a matter or appropriateness and prudence, rather than an absolute bar.
9.25 Clearly, in that regard the views of Keane C.J. were not inconsistent with the views expressed by the majority in Abbeylara . It thus follows that there is a second area of immunity, which stems from the respect for the separation of powers, which precludes the courts from impermissibly interfering in the work of the Oireachtas. This too was made clear in a later passage of the judgment of Keane C.J.:

“An examination by the courts of the manner in which such an inquiry is established in no way trespasses on the exclusive role of the Oireachtas in legislation. Nor does it any way qualify or dilute the exclusive role of the Oireachtas in regulating its own affairs.”
McGuinness J. spoke to the same effect:
“Could such non-justiciability extend to a situation where, for instance, the members of a committee were in blatant breach of the standing orders of the House itself and that breach effected the rights of non-members? It seems to me that it could not.”
9.26 It is important to emphasise, therefore, that what follows is an analysis of the circumstances in which the Court may, or should not, intervene having regard to the general obligation on the part of the courts to respect the separation of powers as identified in the Constitution. These comments have no application, subject only to the possibility of there being a Callelly type exception, to the express restrictions which are found in Article 15.
9.27 It is important to start with a re-statement of the purpose of the privileges and immunities conferred on the Houses and their committees by the relevant provisions of Article 15. Those provisions are designed to permit free speech within the Houses so as to permit the constitutional functions of the Oireachtas to be carried out in a manner which is not unduly restrained by the risk of outside interference from the courts. The provisions concerned are also designed to ensure public knowledge of how those constitutional functions are being performed in a manner that is not constrained inappropriately by the risk of legal action. That the constitutional rights of citizens do not disappear at the gates of Leinster House but rather are primarily to be protected within the bounds of the Houses of the Oireachtas by the Houses themselves is supported by the constitutional entitlement of those Houses to enforce rules and standing orders without outside interference.

9.28 Against that backdrop it would be inappropriate for the courts to intervene where that which was alleged could be described as technical, insufficiently serious or closely aligned to those areas (such as utterances within the Houses) which are given express constitutional immunity.

9.29 In reaching an assessment as to whether the relevant boundary has been crossed it is necessary for the Court to have regard to all of the circumstances of the case while affording a very significant margin of appreciation to the Houses as to the manner in which they conduct their business. To do otherwise would be to fail to pay appropriate respect to the separation of powers.

9.30 But the conclusions reached earlier, as to the inconsistency of the narrow approach urged on behalf of the PAC and the State respondents with the existing jurisprudence, also recognises that there may be cases where the boundary is crossed and where it is appropriate for a court to intervene. In assessing whether that be so in the circumstances of an individual case it is necessary to identify those elements of what transpired which might be said potentially to be unlawful and to determine whether, while affording great respect to the significant margin of appreciation which the Houses and their committees enjoy, nonetheless the matters put forward are sufficiently significant, serious and non-technical so as to justify intervention.

9.31 Against the backdrop of those general principles it is necessary to consider their application to the facts of this case.
10. Application to the Circumstances of this Case

(i) Introduction
10.1 In the context of this case it is necessary to identify a number of features of what transpired before the PAC which it will be necessary to consider in greater detail so as to determine whether the threshold identified in the last section of this judgment has been passed.

10.2 The following factors can be identified:

(a) The assertion that much of the matters sought to be pursued at the PAC on the occasions relevant to these proceedings are said to have been outside the terms of reference which the Dail had conferred on the PAC;
(b) the fact that the CPP, in its determination on the question of compellability, concluded that the PAC was acting ultra vires ;

(c) that it is said that the PAC invited Ms Kerins to attend before it on one basis but then proceeded to enquire into matters which went beyond the scope of the items identified in the invitation by what is argued to be a very significant margin indeed; and

(d) the assertion that no appropriate action was taken by the Houses of the Oireachtas or any duly appointed organ of the Houses, to prevent or remedy the matters identified at (a) and (c) with it being said that the decision of the CPP only prevented the exercise of powers of compellability.

10.3 While it will ultimately be necessary to consider the cumulative effect of each of these matters insofar as they may be established, it is appropriate to commence by considering each of them in individually.
(ii) The Terms of Reference
10.4 As has already been noted the primary control of the actions of a committee of a House or the Houses of the Oireachtas is a matter for the House or Houses concerned. The terms of reference of a committee are fixed by the Oireachtas and it is open, of course, to the Oireachtas to vary those terms so as to confer such additional functions on the relevant committee as the Oireachtas may consider appropriate.

10.5 For that reason it does not seem to the Court that it would be appropriate for the courts generally to entertain proceedings which suggest that a committee of the Oireachtas is acting unlawfully on the basis of technical or textual debates about the precise boundary of the remit of a relevant committee. Such matters are exclusively for the Oireachtas and not for the courts.

10.6 However, it does not seem to the Court that it is appropriate to characterise the departure of the PAC from its terms of reference in the circumstances of this case as being merely technical or, indeed, minor.

10.7 The circumstances in which the PAC sought powers of compellability from the CPP should be recalled. This was not a case where the PAC had decided to expand the scope of its enquiry and considered that powers of compellability were needed to enable it to conduct the extended enquiry on which it proposed to embark. Rather, this was a case where the PAC wished to continue with its existing enquiry but felt it needed powers of compellability so to do. Its request to the CPP was therefore concerned with continuing with an existing enquiry. In that context it is only possible to infer from the refusal of the CPP, on the grounds of ultra vires , of powers of compellability, a clear view on the part of the CPP that the type of enquiry with which the PAC was engaged was materially outside its remit. A reading of the decision of the CPP does not permit of any other interpretation.

10.8 The Court agrees with the reasoning of the CPP in its determination in that regard. However, it seems to the Court that the fact that a body, expressly charged within the Houses of the Oireachtas with determining the scope of a committee’s remit (at least for the purposes of compellability powers), came to the view that the PAC was acting outside its remit adds significance substance to the argument that a court can appropriately intervene.

10.9 On the facts of this case the Court is not required to impose its own view as to the remit which the Dail has conferred on the PAC but rather only is required to agree that a relevant committee of the Oireachtas itself has determined that the PAC was acting outside its remit.

10.10 Before leaving this heading it is important to make a number of points. First, it is important to emphasise that nothing in this judgment should be taken as implying that even a significant departure from terms of reference can, necessarily and taken by itself, justify court intervention. It is a factor which can be taken into account in the overall assessment of whether the boundary has been crossed. Whether it could amount to a sufficient justification for court intervention without any other factors being present is a matter which it is not necessary to decide in this case.

10.11 It is also important to identify that, having regard to the reasoning of the CPP in its compellability refusal decision, it is clear to the Court that the PAC was acting very significantly outside of its remit. It must be recalled that the reasoning by which this Court came to the view that a committee of a House or the Houses enjoyed the same constitutional privileges and immunities which the House or Houses themselves enjoyed stemmed from the fact that the committee concerned had been given the role of performing an aspect of the constitutional function of the Oireachtas. But with that benefit comes a responsibility. Amongst other things, there is a responsibility to take reasonable steps to remain within the scope of the remit given to the committee by the Oireachtas. The committee enjoys constitutional protection because it has had a remit conferred on it, but it has a constitutional obligation to keep within that remit. Where, as here, a committee has strayed very far beyond the boundaries of its remit and where a relevant committee of the Oireachtas has come to that view, same provides a significant factor to be taken into account in considering whether, in all the circumstances, it is appropriate for the Court to intervene.
(iii) The Invitation
10.12 It is correct, as was urged on behalf of the PAC and the State respondents, that Ms. Kerins was under no legal obligation to attend on the invitation issued to her by the PAC. However, it does not seem to the Court that that is the end of the matter. Persons who are invited to attend before a committee of the Oireachtas (or, indeed, before a House or the Houses of the Oireachtas itself if the Oireachtas were to so choose) have to make a decision as to whether they should accept the invitation concerned. Clearly, it is likely that the matters which the person concerned is told that they will be asked to address may form a part, and perhaps a very important part, of the decision which they make. In those circumstances, fair process requires that a committee, which has induced a person to attend before it on one basis, stays reasonably within the scope of the invitation. The Court would again emphasise that it is no function of a court to entertain complaints which place reliance on what might be said to be a technical or minor deviation. However, where there is a significant difference between the actions of the committee on the occasion when a citizen attends before it and the basis on which an invitation was accepted, then that must be a factor which the Court can take into account in assessing whether the threshold has been passed.

10.13 However, it must be also emphasised, as noted earlier, that the Court, in reaching any conclusions under such a heading, must assess what may reasonably be determined to be the actions of the committee as a whole (including considering the role played by the chair) rather than simply considering the statements of individual deputies. That being said it equally follows that statements or actions made by an individual deputy which might point to the deputy concerned being unhappy with the direction of the committee would not necessarily prevent an overall assessment being reached that the committee as a whole had acted in an unlawful fashion.

10.14 In that context there is a difficulty, to which it will be necessary to shortly return, in the Court making an assessment under this heading having regard to the way in which the case was resolved by the Divisional High Court and also the run of this appeal.
(iv) A Remedy
10.14 It is true that, as a matter of practicality, the business of the PAC in the context of the issues concerning Ms. Kerins came to an end when the CPP declined compellability powers. The PAC itself had decided that its enquiries could not be progressed much further without those powers. However, in this context, it is important to emphasise that the primary constitutional obligation to provide a remedy for any consequences which flow from unlawful actions which occur within the Oireachtas lies on the Oireachtas itself. That function can, of course, be delegated to an appropriate committee or the like. But, if it should transpire that a committee acts, in a material and significant manner, in an unlawful way then there is an obligation, under the Constitution, on the Oireachtas to do something about it.

10.15 If the Oireachtas provides some means of controlling the unlawful activities of its own committees then that fact would weigh most heavily against it being appropriate for a court to intervene. The Court would have to afford a very significant margin of appreciation to the decisions of any properly constituted body within the Oireachtas charged with providing a remedy for unlawful actions occurring within the Oireachtas itself.

10.16 However, in the circumstances of this case it does not seem that any significant action was taken against the PAC. The question of the Court respecting the actions taken by the Oireachtas to control committees which act unlawfully, and the weight to be attached thereto, does not really arise in this case.
(v) Conclusion
10.17 As already pointed out it is necessary for the Court to consider the cumulative effect of each of the matters in controversy. In the Court’s view the cumulative effect of the PAC acting very significantly outside of its terms of reference (and in a manner determined by the CPP to be ultra vires ) when coupled with the possibility (if that could be established) that the PAC engaged in an unlawful and unfair process by acting as a whole in a manner which led to a citizen accepting an invitation on one basis but being treated significantly differently on attendance, together with the absence of any action having been taken by the Oireachtas to deal with these matters, would lead to it being appropriate for a court to intervene.

10.18 However, that conclusion has, as at least one of its component parts, an assumption concerning the outcome of one element of the assessment. That leads to a difficulty which it will now be necessary to address.
11. The Difficulty
11.1 Given that the Divisional High Court took the view that the issues which Ms. Kerins sought to raise were non-justiciable, it followed that it was unnecessary for that Court to attempt to assess the facts in any detail. The judgment of the Divisional Court does, as noted earlier, outline the events which occurred before the PAC in some detail and does conclude that Ms. Kerins reputation was undoubtedly damaged by what occurred. But it does not follow from any of the findings of the Divisional Court that the PAC was necessarily acting in an unlawful manner when conducting the hearings of which Ms. Kerins complains. That is particularly so in the light of the determination made above which would require an assessment as to whether certain actions of the committee as a whole (as opposed to individual comments of certain members) could be said to have been unlawful. It follows that there may be an issue as to whether it is possible for this Court to reach a definitive conclusion on the necessary facts.

11.2 In assessing that element of the Court’s analysis which requires a determination of the actions of the PAC as a whole under the “invitation” heading, the following matters will require full and detailed assessment:-

(a) A fair characterisation of the actions of the committee as a whole including, where appropriate, an assessment of the actions of the chair of the committee. Where a particular course of action is engaged in by a member or members of a committee without objection from the other members and without intervention from the chair, it may well be open to the conclusion that the committee as a whole approved of the action in question. In that context the Court will emphasise the importance of the role of the chair. It is the function of the chair of any grouping not only to ensure the orderly conduct of the business of the body concerned but also to ensure that the body acts properly in accordance with any relevant law, rules or regulation. In the context of a committee of a House or the Houses of the Oireachtas it is the role of the chair to seek to ensure that the committee acts in a lawful manner. It follows that it is for the chair to seek to control any actions of members which go outside the parameters of that which is properly permitted by any relevant law, rules or regulation. It is also important to note that the chair is the port of call for any member who believes that the actions of the committee (or another member of members) is trespassing beyond the bounds of that which is permissible. But if the chair does not intervene, or is not asked to intervene by other members, then it may reasonably be inferred that the committee as a whole approves of the course of action being adopted.
(b) However, an isolated comment or comments, which could not fairly be taken to represent the actions of the committee as a whole, could not lead to any adverse finding.

(c) Next, it is important to distinguish between utterances of individual deputies at the committee and the actions of the committee as a whole. For the reasons already analysed it is clear that utterances cannot themselves be the subject of litigation but can be used as evidence to assess the actions of the committee. It is only in that way that the statements made by various deputies can be considered.

(d) Furthermore, it must be said that, in the context of the specific issues which arise in this case, a fundamental question is as to whether, having regard to the basis on which a citizen was invited to attend before it and the terms of reference of the PAC, the committee as a whole can be said to have acted lawfully. In that context it does not follow that a consideration of whether a fair process has been observed involves an assessment of whether the comments made by individual deputies might be considered to be “unfair” in the colloquial sense of that term. Given that comments which many might regard as “unfair” in that sense can be made in either of the Houses of the Oireachtas or their committees without any risk of challenge in the courts, it follows that the assessment of the actions of the committee cannot be based on a similar colloquial consideration of whether what was said might be considered to be fair or otherwise.

(e) On the other hand, a committee which invites a citizen to attend before it on one basis but then, by its actions, demonstrates that it proposes to act in a significantly different way to that which formed the basis of its invitation, can properly be said to have acted in breach of its obligation to adopt a fair process. A citizen who is invited to attend before a committee on a particular basis is entitled to take the committee at its word. The citizen is entitled to expect that the committee will act in a manner broadly consistent with the basis on which the invitation is proffered. It is true that the citizen is not obliged to attend, but it is equally true that a citizen, perhaps weighing up whether it is better to attend or not, will undoubtedly have regard to the basis on which the invitation is issued. Having accepted an invitation on one basis, the citizen is entitled to require the committee not to deviate, or at least not to deviate to a significant and material extent, from the basis on which the citizen agreed to attend in the first place.

(f) To label the actions of a committee as being unlawful in circumstances where it goes outside the basis on which it invites a citizen to attend is to do no more than to keep the committee to its word.

(g) On the other hand, there must be a degree of practicality and realism brought to bear in any assessment of that type. Minor or technical deviations from what might, on one view, be the strict letter of the basis on which a person is invited to attend could not provide legitimate grounds for concluding that a committee had acted unlawfully. The deviation must be substantial and significant.

(h) In that context it is necessary to consider the argument put forward by the PAC and by the State respondents which suggested that a citizen who attends voluntarily is entitled to leave at any stage and in particular if the citizen concerned feels that the committee is embarked on a course of action which deviates significantly from what was legitimately anticipated. While it is technically true that there could be no legal sanction in such circumstances, it seems to the Court that a real world view of the situation must take cognisance of the likely reputational damage which would be suffered by a person who simply walked out of a Dail committee. If it were to be established that a person was invited to appear before a Dail committee on one basis but the committee proceeded to act in a manner wholly inconsistent with the basis on which the invitation was issued and accepted, then it would be little solace to the individual concerned to be told that they could walk out without any legal consequences. The fact that there were no formal legal consequences deriving from any possible report of the relevant committee in Abbeylara did not preclude this Court from determining that the actions of the committee concerned were unlawful.

11.3 The evidence before the Divisional Court was given on affidavit. Insofar as material to the sort of issues just identified, the evidence in reality is confined either to that which is contained in transcripts of the hearings of the PAC or documents passing between the PAC and Ms. Kerins and her advisers. No questions of credibility arise. In such circumstances this Court is in as good a position as the Divisional Court would have been to assess the evidence and reach conclusions.
11.4 On the other hand, the precise basis on which it is, consistent with the principles of justiciability and the separation of powers, open to a court to assess and characterise the actions of a committee in circumstances such as those in issue in these proceedings, was not clarified until this judgment.

11.5 It follows that, while there was some debate on the facts at the hearing before this Court on this appeal, that argument was, for understandable reasons, not expressly directed to the precise questions which this Court has identified.

11.6 In those circumstances the Court is satisfied that it is appropriate for it to reach conclusions on whether, having regard to the principles identified, it can be said that the PAC acted unlawfully by reason of the manner in which it conducted its questioning of Ms. Kerins in the light of the invitation issued to her. However, the Court would propose that the parties be given a brief further opportunity to make submissions on the facts having regard specifically to the principles identified in this judgment.
12. The Remedy
12.1 At the level of principle it seems to the Court that a person who has been affected by the unlawful actions of the Dail (acting through a committee) in circumstances which are justiciable must at least be entitled to a declaration to that effect. It is important in that context to emphasise that a committee is, in substance, an agent or delegate of the House or Houses which appoints it. The basis on which it attracts constitutional immunity is precisely because it has conferred on it by the relevant House or Houses the task of carrying out part of the constitutional function of the Oireachtas. If it acts in an unlawful fashion then the Oireachtas, or the relevant House which conferred a role on it, must bear responsibility for that unlawfulness. Unless the issue is excluded by the privileges or immunities conferred by the Constitution or by the proper respect which the courts must pay to the separation of powers, then the least which a court can be expected to do is to determine that the Oireachtas or one of its Houses has, through its agent or delegate in the form of its committee, acted unlawfully.

12.2 Obviously, there is no continuing risk that the PAC will continue with the inquiry which has given rise to these proceedings. The question of injunctive relief does not, therefore, arise.

12.3 Furthermore, it seems to this Court that, before it would in principle be appropriate to grant injunctive relief, and having regard to the respect which one organ of the Constitution is required to pay to any other, it would ordinarily be important for a court to determine the lawfulness or otherwise of the actions or intended actions of a committee, to determine next whether the threshold for justiciability has been reached and then, if appropriate, to declare the legal position thus affording the committee concerned the opportunity to act lawfully. Injunctive relief could only be considered, if at all, where it appeared that a committee intended to continue to act unlawfully notwithstanding a determination by a court of competent jurisdiction that its actions were unlawful.

12.4 As noted earlier, the question of whether Ms. Kerins might be entitled to damages was not before the Divisional High Court on the first module of the hearing before that Court which is, of course, the module in respect of which this appeal lies. The question of damages does not, therefore, arise on this appeal. However, it is of some importance that the Court point out that it by no means would necessarily follow from a decision of this Court to the effect that the PAC had acted unlawfully that Ms. Kerins would be entitled to damages. A whole range of issues would need to be considered.

12.5 First, it is important to emphasise that this Court has placed significant weight in reaching its conclusions on the need to protect the entitlement of the Oireachtas to secure freedom of speech within the Houses and to ensure that the constitutional functions of the Oireachtas can be carried out without undue interference from the courts. Those factors weigh heavily in the balance in any case in which it is considered that the Court might intervene even by means of simply making a declaration as to unlawfulness. But those questions would give rise to even greater consideration in the context of a claim for damages.

12.6 In addition, it would be necessary to consider whether the principles affecting State immunity in negligence such as those identified in Glencar Exploration plc. v. Mayo County Council ( No. 2) [2002] 1 IR 84 and more recently in Cromane Foods Limited & anor. v. Minister for Agriculture, Fisheries and Food & ors . [2016] IESC 6 apply in a case such as this and, if so, what effect those principles might have on the question of damages.

12.7 Furthermore, even in the context of this Court coming to the view that a declaration of unlawfulness should be made and even if damages were, in principle, permissible, it would be necessary to establish a causal link between any unlawfulness established and any damage suffered. That would require a careful analysis of the precise nature of the unlawfulness determined and a close consideration of the evidence to determine whether any of the adverse consequences for Ms. Kerins, as identified in the judgment of the Divisional High Court, could be attributed to that unlawfulness. In that context regard would have to be had to the fact that, for example, a debate in the Dail during which concerns were expressed about Rehab and Ms. Kerins could not be the subject of a declaration of unlawfulness but might well give rise to the same or similar consequences.

12.8 These matters are set out in this judgment not for the purposes of reaching any definitive conclusion (for, as pointed out, these matters were not before the Court) but rather for the purposes of emphasising that, should a second module of this case go ahead before the High Court, there are very significant legal issues which would need to be addressed in the context of any claim for damages. Indeed, the issues just identified should not be taken as representing an exhaustive list.

12.9 But returning to the question of a declaration, it is clear that there are a number of matters which yet remain to be finally determined before it can be decided whether it is appropriate for the Court to consider granting a declaration in all the circumstances of this case. What follows is the course of action which the Court proposes to enable finality to be brought in respect of those questions.
13. Proposed Course of Action
13.1 In the light of the above analysis the Court is satisfied that it would, in principle, be open to this Court to declare that the PAC had acted unlawfully in a manner which had affected Ms. Kerins. The Court has determined that it would be appropriate to make such a declaration in all the circumstances of this case subject to two matters.

13.2 First, it is necessary to consider the consequences for this case of the finding of the Court that the relevant proper defendant should be the Dail rather than the individual members of the PAC. Next, it is necessary to determine whether it is appropriate to characterise the actions of the PAC as a whole as being a significant and material breach of the basis on which Ms. Kerins was invited to appear before it.

13.3 It should be made clear that, provided the Court is satisfied that there are actions which it can and should take in respect of the identity of the proper defendant and provided that it is satisfied as to the proper characterisation of the actions of the PAC, then such a declaration should be granted. On that basis the conclusion section of this judgment will set out the procedures which the Court proposes to follow to reach, in very early course, a final determination on such matters.

13.4 Having regard to the findings of the Court set out above, no question of damages arises in the circumstances of this appeal although the possibility of the second module of these proceedings going ahead in the High Court remains. However, if the matters just adverted to can be resolved in favour of Ms. Kerins, then the Court will make a declaration that the PAC acted unlawfully in the manner in which it questioned Ms. Kerins by reason of acting significantly outside its terms of reference and in a manner significantly different from the basis on which it had invited Ms. Kerins to attend before it.

13.5 Finally, it is appropriate for the Court to make some brief comments on whether there might be a Callely type exception which might extend the circumstances in which it would be appropriate for a court to assess the actions of a House or Houses of the Oireachtas or a committee notwithstanding the provisions of Article 15.
14. Is there a Callely Type Exception
14.1 In the light of the conclusion reached earlier it is unnecessary to reach any definitive view on this matter. The Court has determined that it is appropriate to make a specific assessment as to whether Ms. Kerins has been affected by unlawful actions of the PAC having regard to the principles identified in the course of this judgment.

14.2 The existence or otherwise of a Callely like exception, which might arise in particular egregious circumstances, could not affect the ultimate result of this appeal and, in those circumstances, the Court does not consider that it would be appropriate to determine such an important question in a case where the answer to that question was not necessary for the final resolution of the proceedings.

14.3 However, in that context, it should be recalled, as noted earlier, that much of the jurisprudence in this area emphasises that the entitlements of individuals are not set at nought just because the Oireachtas is involved. Perhaps the most authoritative statement of this principle is to be found in the 1967 Report of the Oireachtas Committee on the Constitution (1967) (PR 9817):

“The wording of this provision [Article 15.10] 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 the other provisions of the Constitution in relation to the matters at issue. … It must be assumed that other provisions of the Constitution such as Articles 34, 37, 38, and 40 are not brushed aside.”

14.4 Rather, it is for the Oireachtas rather than the courts to protect the rights of individuals in circumstances where the Oireachtas and its members enjoy the privileges and immunities conferred by Article 15. Against that background it is at least arguable that there is a constitutional obligation on the Oireachtas both to adopt standing orders or other measures designed to provide protection for individuals against inappropriate infringement of their rights while at the same time protecting the freedom of speech within the Houses guaranteed by Article 15.10 and further protecting the Oireachtas from any inappropriate interference with its entitlement to carry out its constitutional role in whatever way it considers appropriate. In reaching any such balance it would, at a minimum, be necessary to acknowledge that the Oireachtas would enjoy a very wide margin of appreciation.

14.5 That being said it is also arguable, in the same context, that there is a constitutional obligation on the Oireachtas to put in place appropriate mechanisms to remedy any wrong done. Again, at a minimum, the Oireachtas would enjoy a very wide margin of appreciation in making any assessment relating to the balancing of appropriate rights and obligations in the circumstances of any particular case. However, it should be noted that the greater the protection provided by the Oireachtas the more it may be inappropriate for the Court to intervene.

14.6 Because it may arise in other proceedings it is, perhaps, appropriate to characterise the issue concerning a Callely type exception as being one as to whether the Court might have jurisdiction to intervene in the event that there was either a flagrant or persistent failure to put in place appropriate measures to provide remedies for those who have been affected by unlawful actions within the Oireachtas. For the reasons already identified it is unnecessary, for the purposes of resolving this appeal, to reach any conclusion on whether such a jurisdiction exists.

14.7 However, in the context of that issue it is, perhaps, appropriate to deal with one matter which does arise in the context of this case. On the facts it is clear that the CPP considered that the PAC had acted outside of its jurisdiction in embarking on at least aspects of the inquiry which lies at the heart of these proceedings. That conclusion formed the basis for the refusal of the CPP to grant compellability powers to the PAC. However, it would appear to be the case that the fact that the CPP came to that view did not preclude the PAC from continuing with its enquiries. Rather the only consequence was that the PAC did not obtain compellability powers and reached the conclusion, for practical reasons, that there was little point in continuing with its enquiries without those powers. As already noted, this Court agrees with the interpretation of the CPP.

14.8 It does appear, therefore, that the CPP did not have the power to prevent the PAC from enquiring into matters which were arguably outside its remit. However, the analysis which has led this Court to the conclusions which it has reached is dependent on committees having the privileges and immunities of a House or Houses of the Oireachtas because they are doing the business of the House or Houses concerned. It obviously is a matter for the Houses of the Oireachtas to confer whatever functions are considered appropriate on a particular committee. Provided that the function concerned is one which the House or Houses itself has (as opposed to the situation which arose in Abbeylara ) then it is ultimately a matter for the House to determine whether it should carry out a particular function itself or confer it on a committee. But it does seem important, in that very context, that there be an effective means whereby the House concerned (or an appropriate committee of a House such as the CPP) can police questions concerning the remit of any particular committee. A House can, of course, extend the remit of any committee and therefore there is no necessary reason why any appropriate constitutional function cannot be conferred on a committee either in its initial terms of reference or any extension thereof. But, having regard to the important constitutional safeguards which a committee, as a body carrying out a constitutional function of a House, enjoys, it is equally important that there be appropriate mechanisms in place to ensure that a committee does not exceed its remit without being authorised by or on behalf of the House or Houses concerned to carry out an extended remit.
15. Conclusion
15.1 In summary it is important to emphasise what is, and what is not, at issue on this appeal. In that context the following points should be noted:-

(i) The Divisional High Court conducted a modular hearing at which all questions concerning whether Ms. Kerins might be entitled to damages were left over to a second phase. This appeal is concerned only with the judgment of the Divisional High Court on the first module and does not, therefore, concern the question of damages, although the Court makes a number of limited observations in that regard;
(ii) The Divisional High Court considered that the constitutional privileges and immunities set out in Article 15 of Bunreacht na hÉireann precluded a citizen, such as Mr. Kerins, from being able to invoke the jurisdiction of a court to consider a complaint about the manner in which a committee of a House of the Oireachtas conducted its business in circumstances such as arose in this case;

(iii) The core issues which were before this Court were as to whether that view of the Divisional High Court, as to there being an absolute barrier to the bringing of proceedings of this type, was correct and, if it was not correct, as to what limitations the Constitution actually does impose on the jurisdiction of the Court.

(iv) To the extent that the Court might find that there was not an absolute prohibition, then the key question which arises is as to whether the case which Ms. Kerins sought to bring was on the side of the boundary which permits the courts to intervene.

15.2 For the detailed reasons set out in this judgment the Court has come to the following conclusions:-
(i) A committee of a House or the Houses of the Oireachtas has the same constitutional privileges and immunities as the Oireachtas itself enjoys where the committee concerned has had delegated to it by the Oireachtas the function of carrying out a specified part of the legitimate constitutional functions of the Oireachtas;
(ii) A court can receive and consider evidence of what was said at a meeting of a committee, such as the PAC, for the purposes of determining what actions the committee in question was engaged in. In so acting a court does not infringe the prohibition against making members of the House amenable to a court in respect of their utterances as prohibited by Article 15 and does not infringe against any privilege conferred by the same Article.

(iii) Article 15 of the Constitution confers a wide scope of privilege and immunity on the Houses and their committees. Those immunities and privileges derive first from the express terms of the Articles themselves which preclude certain types of actions being taken in the courts. The Court notes that the People, in enacting the Constitution, have chosen to preclude the courts from enquiring into certain matters even though rights may be affected. This is done for the purposes of protecting freedom of speech within the Houses of the Oireachtas and for ensuring that the legitimate constitutional business of the Oireachtas can be carried out without undue interference from the courts. In addition, the separation of powers provided for in the Constitution requires a court to refrain from making orders which would have the effect of impermissibly inhibiting the Oireachtas in its work.

(iv) However, the Court holds that the privileges and immunities of the Oireachtas, while extensive, do not provide an absolute barrier in all circumstances to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas. In so holding the Court was not persuaded by the argument put forward on behalf of the PAC and the State respondents to the effect that the existing case law (which is considered in more detail in the judgment) has only recognised an entitlement of the Court to intervene in cases where the coercive power of the State is being applied to a citizen who is not a member of the Oireachtas.

(v) However, in recognising that there is no absolute barrier, the Court nonetheless recognises that proceedings cannot properly be brought which either

(a) would involve the Court breaching the privileges and immunities expressly set out in Article 15 or in acting in a manner which would invoke a jurisdiction in respect of matters closely connected with those privileges and immunities; or

(b) which would otherwise amount to an inappropriate breach of the separation of powers.

(vi) The Court has concluded that the Dail, as an institution recognised by the Constitution, can be the appropriate defendant in proceedings concerning the conduct of a committee duly appointed by the Dail to carry out part of its constitutional function. The Court has also concluded that it is not appropriate, for constitutional reasons, to name the individual members of a committee as defendants. The Court has indicated that it will require further submissions on what course of action should be adopted in the light of those findings;

(vii) In the context of the preceding paragraph the Court has emphasised that the primary role of providing a remedy where a citizen is affected by unlawful action, which occurs in the course of the conduct of the business of the Oireachtas, lies with the Houses themselves. Furthermore, the Court has emphasised that the Houses have a very wide margin of appreciation as to how their business is conducted, as to the assessment of whether members or committees have acted in an inappropriate way and in providing redress in circumstances where members or committees have been found to have acted inappropriately. The jurisdiction of a court to intervene can only arise where, as a result of an assessment of all of the circumstances of the case, there has been a significant and unremedied unlawful action on the part of a committee.

(viii) The Court has emphasised that what requires to be assessed, before a court can intervene, is the actions of a committee as a whole and not a consideration of individual utterances of members of the committee concerned. The Court has set out in detail the matters which may need to be assessed in order to reach a conclusion as to the proper characterisation of the actions of the PAC as a whole.

(ix) In the circumstances of this case the Court has concluded that it would not be a breach of the separation of powers for the Court to declare the actions of the PAC unlawful in the light of the fact that the PAC was acting outside its terms of reference and that a relevant committee of the Houses of the Oireachtas, the CPP, had come to that view together with the fact that the Court has assessed that the PAC was acting significantly outside of its remit and together with the possibility that it might be appropriate to find, on the evidence, that the PAC had invited Ms. Kerins to attend before it on one basis but has proceeded, when she attended, to deal with her on an entirely different basis.

(x) However, the Court has indicated that it will require further submissions from the parties on the question of whether it is appropriate to characterise the actions of the PAC as a whole as having involved a substantial breach of its obligation to treat Ms. Kerins fairly in the sense of keeping broadly within the bounds of the terms of the invitation which it issued to her. In that context the Court has indicated that a citizen who accepts an invitation to attend before a committee of the Oireachtas is entitled to expect that the committee concerned will act within the boundaries of the invitation.

(xi) The Court has determined that, because the evidence concerning the proceedings before the PAC which are relevant to this case involves transcripts or recordings together with documents, the Supreme Court is in as good a position to form a judgment on the facts as the Divisional High Court would have been had that Court considered that it was legally entitled to consider Ms. Kerins’ case on the merits. On that basis the Court will direct further submissions on whether it is appropriate to characterise the actions of the PAC as a whole as having been in significant breach of the basis of the invitation issued to Ms. Kerins.

(xii) The Court has also made clear that, in the event that the issues concerning the proper parties to this case and those factual questions just mentioned are resolved in favour of Ms. Kerins, the Court will make a declaration that the PAC acted unlawfully in respect of Ms. Kerins by virtue of the fact that the PAC operated significantly outside of its terms of reference, that the CPP, being a relevant committee of the Oireachtas, had so concluded and, if the facts are so found, that the PAC operated significantly outside the terms on which it invited Ms. Kerins to appear before it.

15.3 On the basis of those findings it is clear that two matters remain for further consideration. The first concerns the issue of the appropriate defendants in the context of the allegations against the PAC and the second concerns the factual issue concerning the proper characterisation of the actions of the PAC as a whole. The Court proposes to further consider those matters with a view to reaching a final conclusion on this appeal. The Court will list those issues for further consideration on Monday 8th April. The Court gives the following directions to ensure that the matter is ready for that further hearing:-
(a) Ms. Kerins should file further written submissions directed solely to those two issues not later than close of business on Wednesday the 13th March next. The PAC will be required to file replying submissions by Wednesday 27th March. Both sets of submissions should be accompanied by an index of any evidential material before the Court which the party concerned wishes to rely on.
(b) Not later than Friday the 29th March the parties should arrange for the filing of an appropriate number of copies of books for the further hearing. A first book should include a copy of this judgment together with the written submissions filed in accordance with these directions. A second book should contain all of the evidential material which either party wishes to rely on. A third book should contain any legal authorities which the parties consider relevant. Each of the books should be put together in the manner contemplated by the statutory practice direction.

(c) The matter will be listed for mention on Wednesday 3rd April to ensure that all matters are in order for the hearing on the 8th.

‘Brien v Clerk of Dail Eireann & ors

[2019] IESC 12

6. The Common Issues and their Resolution
6.1 It first must be recalled that this Court, in Kerins , did determine that there was no absolute barrier to the justiciability of the issues which Ms. Kerins sought to raise in her proceedings. It was held that a court could review the actions of a House or Houses of the Oireachtas, or a committee appointed by a House or Houses, for the purposes of determining the lawfulness of the actions concerned. However, it was acknowledged that the privileges and immunities conferred on the Houses of the Oireachtas by Article 15 of the Constitution did place a significant limitation on the circumstances in which it would be appropriate for a court to assess the lawfulness or otherwise of the actions of parliament.

6.2 In substance, this Court held that there were two important restrictions on a court which was invited to rule on matters which occurred within the Houses of the Oireachtas. First, there are the express privileges and immunities conferred by Article 15 itself. As the Court noted, the People have excluded from the ambit of the courts certain types of complaints which a citizen might otherwise be entitled to litigate. The purpose behind those exclusions is to promote freedom of speech within the Oireachtas and to permit the Houses of the Oireachtas to conduct their legitimate constitutional business without undue interference from the courts. As noted by Ní Raifeartaigh J. in her judgment in this case, any undue interference by the courts would have a “chilling” effect both on free speech within the Oireachtas and the conduct by it of legitimate constitutional business.

6.3 In addition, this Court in Kerins has identified that the separation of powers identified in the Constitution requires that a court be particularly slow to interfere with matters which occur within the Oireachtas. However, the Court rejected the argument put forward on behalf of the PAC and the State respondents in Kerins which was to the effect that there was an absolute barrier to justiciability save in those cases where the coercive power of the State was sought to be invoked.

6.4 The particular circumstances which the Court considered gave rise to the possibility of it being appropriate for a court to intervene were the fact that the PAC, in the circumstances of Kerins, operated significantly outside of its terms of reference, that a relevant committee of the Oireachtas (the CPP) had also considered that the PAC was operating outside those terms of reference, and the possibility (subject to an appropriate conclusion on the facts being capable of being reached at a subsequent hearing) that it might be considered appropriate to characterise the actions, as opposed to the utterances, of the PAC as being unfair in the sense of having invited Ms. Kerins to attend before it on one basis but having proceeded to conduct its hearing on a significantly different basis.

6.5 Against that background, it will be necessary, for the purposes of considering the issues which arise in this case, to consider whether the actions of the CPP can be assessed as to their lawfulness in the circumstances of this case.

6.6 Next, it should be recalled that in Kerins the Court determined that the same privileges and immunities which apply to a House or the Houses of the Oireachtas or their members apply in relation to a committee or its members where that committee has been entrusted by a House or the Houses with the task of conducting part of the constitutional remit of the House or Houses concerned.

6.7 It is, of course, the case that Mr. O’Brien no longer seeks a remedy from this Court in respect of what actually happened in the Dail. Rather, he seeks to challenge what happened before the CPP. However, on that basis it will be necessary to consider, in the light of certain comments made in Kerins , whether it can properly be said that the CPP was carrying out a constitutional function of the Houses of the Oireachtas so that it and its members would attract the same privileges and immunities that would attach to the Houses themselves on the basis of the analysis conducted in Kerins .

6.8 In that context, it must be noted that there may be an issue as to whether there might be a constitutional obligation on the Houses of the Oireachtas to put in place appropriate measures to ensure that the constitutional rights of citizens were protected within the Houses (and in circumstances where the courts did not have jurisdiction precisely because of the privileges and immunities which the Houses enjoy). If that proposition should find favour then it would follow that the role of the CPP in considering complaints by citizens to the effect that their rights have been interfered with by what happened in the Houses might fall to be considered as the exercise of a constitutional function of the Houses (being to put in place a mechanism to secure the rights of citizens) which had been conferred on the CPP. It will be necessary to return to this question in the course of this judgment.

6.9 Finally, there is the issue which was touched on in Kerins , but not determined, as to whether there might be a Callely type exception to the privileges and immunities of the Houses or their members in the case of a particularly egregious breach. The question noted in Kerins was the possibility that it might be said that a particularly egregious or persistent breach by the Houses of their possible constitutional obligation to put in place appropriate rules and enforcement mechanisms to protect the rights of citizens might lead to the issue becoming justiciable.

6.10 As that issue was also not determined in Kerins it will be necessary to return to it in this case.

6.11 However, there are some important features of the issues which arise in these proceedings which it is important to record and consider before going on to discuss the extent to and the manner in which the overall conclusions reached in Kerins impact on the resolution of this case and thereafter to discuss the proper answers to the questions which fall for determination on this appeal.
7. Some Discrete Questions
7.1 It is first important to recall that the parties to the privacy proceedings commenced by Mr. O’Brien returned to the trial judge in those proceedings (Binchy J.) for the purposes of clarifying whether, in the view of Binchy J., the order which he had made was intended to restrain members of the Houses of the Oireachtas from disclosing any of the information specified in that order in the course of contributions in the Houses themselves. It is clear that Binchy J. indicated that his order was not intended to extend that far. However, it seems highly likely that the considerations which led Binchy J. to so indicate stemmed from the very constitutional questions which lie at the heart of these proceedings. Given the undoubted fact that there are significant immunities conferred against proceedings arising out of utterances made in the Houses of the Oireachtas, it seems clear that Binchy J. simply did not consider it appropriate that any order which he might have made should be considered to purport to interfere with the freedom of speech in the Houses guaranteed by the Constitution.

7.2 It follows that no question of contempt of court as such arises as a result of the revelation of the relevant information in the Dail. However, that is far from the end of the matter.

7.3 As has been repeatedly emphasised by this Court, and as is reiterated in the judgment delivered in Kerins , the constitutional rights of citizens do not disappear at the gates of Leinster House. Rather, the constitutional architecture requires that, to the extent that the Constitution itself confers immunities in respect of court proceedings relating to what happens within Leinster House, citizens must look to the Houses themselves to vindicate their rights including, where appropriate, resolving any question of balancing rights and obligations which arise.

7.4 The fact that a court order designed to protect a constitutional right of privacy does not, in and of itself, extend to precluding utterances made in the Houses of the Oireachtas does not mean that, in an appropriate case, there may nonetheless be an impermissible interference with the privacy rights of a citizen as a result of utterances made in the Houses. Furthermore, where such interference takes place there may at least arguably be a concomitant obligation on the Houses to have, at a minimum, mechanisms in place through which a citizen may seek vindication of any rights said to have been infringed.

7.5 However, it is also important to identify some significant areas of difference between this appeal and the Kerins appeal.

7.6 First, the “utterances” giving rise to Mr. O’Brien’s initial concern were clearly utterances made in a House of the Oireachtas and therefore none of the questions concerning the scope of any immunity enjoyed by a committee, which are discussed in detail in Kerins , have any application to this appeal.

7.7 Second, those utterances were not made in the context of a situation where Mr. O’Brien had been invited to participate in a process and had accepted that invitation. Thus, the issues discussed in Kerins as to whether obligations lie on the Houses of the Oireachtas generally or their committees as a result of an invitation to a citizen to participate directly in their business have no application on this appeal.

7.8 In that context, it is appropriate to turn to the argument put forward on behalf of Mr. O’Brien.
8. Mr. O’Brien’s Case
8.1 Mr. O’Brien seeks to argue that, for the purposes of the orders sought from this Court, Articles 15.12 and 15.13 are not engaged. First, Mr. O’Brien contests the High Court’s conclusions to the effect that, in asking the Court to review and rule on the CPP’s work, the Court is drawn into adjudications relating to the content of the utterances in question as well as the motivation of the speakers. In the context of his complaint regarding the CPP’s finding that Deputy Murphy had acted in good faith, Mr. O’Brien argues that he is in fact contending that there was no evidence or submission enabling the CPP to make this determination. This contention, he submits, entails looking at the work of the CPP and not the motivation of Deputy Murphy. It is submitted that a similar view can properly be taken in respect of other aspects of Mr. O’Brien’s claim. It is submitted that an order to the effect that the CPP omitted to determine that Order 57(4) and/or (5) had not been abided by would not offend the separation of powers.

8.2 Alternatively, it is argued that, even if the relief sought by Mr. O’Brien would involve adjudicating on utterances, that this is irrelevant as Articles 15.12 and 15.13 do not extend to the CPP.

8.3 Having suggested that it is not clear on the authorities that Article 15.13 does in fact apply to committees, Mr. O’Brien submits that this is irrelevant in the present context as Mr. O’Brien does not know what utterances were made by CPP members in coming to their decision. Rather, it is argued that Mr. O’Brien’s declaratory relief is aimed at the decisions of the CPP and as such these cannot constitute utterances made by a particular member of the Houses of the Oireachtas. Mr. O’Brien goes on to argue that, in any event, the grant of declaratory relief could not infringe Article 15.13 because it would not make a member “amenable” within the proper meaning of that provision.

8.4 Mr. O’Brien also submits that Article 15.12 cannot apply to the CPP itself, as distinct from the utterances which it was considering. It is argued that the reasoning of the High Court is inconsistent in relation to the distinction between Articles 15.12 and 15.13 and that it is unclear as to the basis on which that Court considered that Article 15.12 was relevant to the determination of the CPP. It is further argued that the declaratory relief sought by Mr. O’Brien is aimed at the decisions of the CPP and not at any publication or medium by which the determinations were delivered. It is contended that the letters communicating the determination could not have constituted “an official report or publication” as they were sent privately to Mr. O’Brien and were not published widely. Therefore, it is argued, they do not fall within the terms of s. 92(2)(b) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (“the 2013 Act”), nor Article 15.12. Indeed, Mr. O’Brien argues that s. 92 of the 2013 Act and Article 15.12 merely provide that a report is “privileged” wherever published and suggests that this does not prevent declaratory relief. Finally, Mr. O’Brien submits that, if Article 15.12 were to apply to committee determinations, this would be irreconcilable with Haughey and Abbeylara , as it would allow a committee to circumvent those authorities by “fast-forwarding” a report and then claiming immunity.

8.5 Against that background it is necessary to turn to a discussion of the issues which arise in this case above and beyond the matters considered and determined by the judgment of this Court in Kerins .
9. Discussion
9.1 Having regard to the argument put forward on behalf of Mr. O’Brien, it seems to the Court that it is necessary to attempt to characterise the precise legal and constitutional status of the decision of the CPP which he seeks to challenge. As is clear, the question which the CPP was considering was as to whether Mr. O’Brien’s complaint concerning the relevant deputies was well founded. Can the decision of the CPP in that context properly be characterised as an “action” of the CPP and, if so, is it potentially covered by the privileges and immunities to be found in Article 15?

9.2 First, it must be recalled that the standing orders of the Houses confer on the CPP the task of determining whether there has been a breach by a deputy or deputies of the rules and standing orders of the Houses. There is no doubt but that Article 15.10 confers on each House the power to make such rules and standing orders and the power to attach penalties for their infringement. On one view, therefore, it might be said that a complaint to the appropriate designated body (being the CPP) of a breach of rules or standing orders is a matter purely internal to the Houses which is not justiciable in the light of the majority view in Callely . That would certainly seem to be the case, following Callely , in circumstances where a deputy or senator sought to challenge the proceedings of the CPP.

9.3 As already noted, it has frequently been said that the constitutional rights of citizens do not disappear inside the gates of Leinster House. Rather, as has also been noted, it is for the Oireachtas itself to protect those constitutional rights in respect of that which occurs within the Houses. It follows that the role of protecting the rights of citizens for actions within the Houses is a constitutional role of those Houses, and one, therefore, which the Houses are bound by the Constitution to fulfil. That analysis does not, of course, answer the question of whether the courts have any role in overseeing whether the Houses have fulfilled that obligation. But the starting point has to be to acknowledge that the Houses do have a constitutional obligation to protect the rights of citizens in respect of that which transpires within the Houses themselves.

9.4 Furthermore, it seems to the Court that it is appropriate to characterise the mechanism whereby Mr. O’Brien was entitled to make a complaint to the CPP as forming part of the constitutional response by the Houses to their obligation to protect the rights of citizens. It is, of course, the case that the consideration and determination of a complaint against a deputy or senator might be seen as only an indirect way of vindicating the rights of a citizen in an appropriate case. However, such indirect means can have particular practical importance, not least because of the fact that the existence of a mechanism whereby appropriate complaints can be considered and, if necessary, sanctions imposed, may properly be seen as part of the means by which the rights of citizens in respect of that which occurs within the Houses can be protected.

9.5 It is always necessary to be careful in pushing analogies too far. However, it is worth noting that the European Court of Human Rights in McCann v. United Kingdom (1996) 21 EHRR 97 determined that there was an obligation on a subscribing state to ensure that there was a proper investigation into the circumstances surrounding the death of a person allegedly involving the state or its agencies. This obligation was seen as deriving from the right to life guaranteed by the European Convention on Human Rights. Obviously, no investigation by the state could bring the person concerned back to life nor could that person, precisely because they were no longer alive, be given any direct remedy. Nonetheless, the obligation to investigate was seen as deriving from the requirement to protect the right to life.

9.6 Likewise, it can be said that the obligation to consider whether there have been breaches of the rules and standing orders of the Houses which have infringed the rights of citizens can be seen as deriving from the constitutional rights of a citizen coupled with the constitutional obligation of the Houses to protect those rights. On the basis of that analysis it is appropriate to characterise the work of the CPP, when considering a complaint by a citizen that the rights of the citizen concerned have been infringed within the Houses, as constituting part of the constitutional function of the Houses in complying with their obligation to protect those rights. On that basis, it seems to the Court that, while the work of the CPP, in respect of its own members and when acting on foot of standing orders, is not justiciable, the same considerations do not necessarily apply when the CPP is considering a complaint by a citizen where the substance of the complaint concerned is that the citizen’s rights have been infringed by a House or Houses. It is important, in that context, to distinguish such a case from a case where a citizen merely brings to the attention of the CPP an alleged breach of rules or standing orders which does not affect the rights of the citizen concerned directly but might rather be described as being of a public interest nature.

9.7 From that analysis, it seems to follow that it can properly be said that the CPP, in considering the complaint of Mr. O’Brien, was carrying out a delegated function of the Dail in protecting the constitutional rights of citizens in respect of matters occurring within the Dail. It follows in turn from the analysis conducted in Kerins that the same privileges and immunities attach to the CPP as would attach to the Dail were it considering the same matter.

9.8 The next issue which therefore arises is as to whether those privileges and immunities render the decision of the CPP non-justiciable.

9.9 In that context it is important to recall that the only complaint made to the CPP by Mr. O’Brien concerned an allegation which directly arose out of utterances made by members of the Dail in the Dail. It is in the context of the clear immunity from amenability conferred on deputies in respect of utterances in the Dail that the role of the CPP in considering such a complaint must be assessed. It is true, of course, that the only consequence for a deputy of an adverse finding by the CPP would be that the deputy concerned might be subject to such sanction as the CPP might appropriately impose. It is further clear that the imposition of such a sanction is expressly permitted by the Constitution (on the basis that it is imposed on foot of standing orders and by a House or its delegated committee) and there could, therefore, be no question of such a determination by the CPP infringing any constitutional privilege or amenity in respect of utterances.

9.10 However, the broader question is as to whether a court, in reviewing the decision of the CPP in such a case, might be said to be indirectly or collaterally (and, therefore, impermissibly) considering the appropriateness or otherwise of utterances made in the Houses. Ultimately, the only consequence of a successful challenge to a decision of the CPP which, as here, exonerated deputies in respect of utterances made in the Houses, could be that the deputies would be put on risk again of being subject to an adverse finding and a sanction. It is true that any such sanction, should it ultimately be imposed after a further consideration by the CPP of the matter after its original decision had been quashed, would nonetheless be a sanction imposed in a constitutionally permissible way from within the machinery of the Houses. But it nonetheless would remain the case that part of the process which led to such an ultimate sanction would have been taken by a court rather than a House or a duly delegated committee of the House concerned. In the Court’s view such a course of action would infringe the immunity conferred on deputies in respect of their utterances in the House. To enable a court to interfere in the process whereby the utterances of deputies are assessed by the duly appointed committee of the relevant House would in substance be to allow the Court to have a role in the ultimate determination of whether those utterances were found to be impermissible and in a decision as to whether, and if so what, sanctions were appropriate. While indirect, such a course of action would amount to making a deputy amenable to a court in respect of utterances in the House. This would, in the Court’s view, be a breach of Article 15.13 and would amount to an impermissible departure from the separation of powers.

9.11 It should be recalled that, in Kerins , the Court identified two separate but connected bases on which it may be said that a court lacks jurisdiction to intervene in respect of matters which occur within the Oireachtas. The first of those bases concerned a situation in which it was sought directly to make a member of a House of the Oireachtas amenable to a court in respect of something said in the House or in its committee or where the Court’s intervention would amount to a breach of the privileges conferred by the Constitution itself. As noted in Kerins to do so would be a clear breach of Article 15. However, the Court went on to note that it would seem “to follow that that which cannot be achieved directly cannot be achieved by collateral means. It would clearly be impermissible to ask a court to intervene in a way which would, by necessary implication, require the Court to at least indirectly make a member amenable or breach a privilege conferred on a member. Thus, there is a clear area of non-justiciability which surrounds utterances made in the Houses or their committees or matters which are sufficiently closely connected to such utterances as to enjoy the same privileges and immunities”.

9.12 While the complaint which Mr. O’Brien urges that this Court should consider does not directly involve utterances made in the Oireachtas, it follows from that passage from the judgment in Kerins that it is necessary for the Court to consider whether Mr. O’Brien’s complaint may amount, in substance, to an indirect or collateral challenge to utterances made in the Dail.

9.13 It should be emphasised that the only matter under consideration on the facts of this case is a decision of the CPP which involves a complaint confined to utterances made in the Dail. It seems to the Court that a judicial decision which quashed or interfered with a determination of the CPP in such a case would necessarily amount to an indirect or collateral challenge to the utterances themselves. As noted earlier the only ultimate practical outcome of a successful challenge would be either that the CPP would be required to re-consider the matter (in the event that its decision was quashed) or might feel obliged so to do (in the event of a court declaration). In either eventuality the consequence would potentially be the re-opening of the complaint to the CPP and the possibility that a different view might be taken of the utterances of the deputies concerned. Such a process would undoubtedly involve the Court in being at least indirectly involved in the assessment of utterances made in the Houses and would, in the Court’s view, clearly be in breach of the first leg of the basis of immunity discussed in Kerins .

9.14 It follows, in the Court’s view, that the challenge to the decision of the CPP in this case is non-justiciable.

9.15 However, the Court should not be taken as reaching any decision as to whether or not decisions of the CPP might be justiciable in other circumstances. It is, for example, open to argument that a decision of the CPP in relation to the conduct of a deputy, in circumstances where a consideration of that conduct by a court would not breach the constitutional privileges and immunities conferred by Article 15, may be justiciable. The Court would propose leaving over such a question over to a case where the nature of the matter which was being considered by the CPP was not one which so clearly involved a complaint about utterances which have the protection from amenability to the courts expressly conferred by Article 15.13.

9.16 However, as suggested earlier, in the light of the Court’s finding that the decision of the CPP in a case such as this is non-justiciable, the question of whether a Callely type exception arises. The Court proposes to turn to that question.
10. Is there a Callely Type Exception
10.1 It is clear from the majority view expressed by this Court in Callely that there may be exceptional circumstances where the very basis of the constitutional architecture might be under threat, so that the courts, as guardians of the Constitution, may have an obligation to act in respect of matters which might otherwise be considered to be outside the scope of the courts’ proper role having regard to the separation of powers. On that basis, it might be argued that a compete abdication by the Houses of the Oireachtas of their obligation to put in place measures to protect the rights of citizens in respect of that which may occur within the ambit of the privileges and immunities conferred on them could be open to challenge. However, it is clear, even on the most expansive reading of Callely , that a role for the courts could only arise, if at all, in truly exceptional circumstances. A Callely type exception could never arise simply because it was said that a House or the Houses or an appropriate committee had been in error in the way in which they had dealt with the protection of the rights of a citizen in a particular case. To take any other view would, in substance, render the privileges and immunities of the Houses nugatory.

10.2 It follows that, even if a Callely exception exists, it could only apply in circumstances where there was cogent evidence that the Houses had abrogated their constitutional duty to have appropriate mechanisms in place. This might, in theory, be capable of being established because of a particularly egregious failure to vindicate the rights of a citizen without any remedial action being taken to ensure that any such failure would not be repeated. In such a case it might be inferred that the Houses truly did not intend to fulfil their constitutional role of protecting the rights of citizens.

10.3 Likewise, persistent and unrectified failures might lead to a similar conclusion. But the question has to be asked as to whether, even if the Court retains such a residual discretion, it could potentially arise on the facts of this case.

10.4 There may well be an argument that the CPP was in error in some of the ways in which it dealt with Mr. O’Brien’s complaint. While the CPP was clearly correct to indicate that it had no role in determining whether someone was in contempt of court (for to do so would itself be a breach of the separation of powers), nonetheless there may well have been an issue, which the CPP did not address, as to whether it was appropriate for deputies to act in a way which might be said to have had, in substance, deprived a citizen of the benefit of an order of the Court to decide to protect that citizen’s right to privacy. Likewise, it might be said that the CPP over-readily came to the view that those concerned had acted in good faith without sufficient inquiry. In making those points it must be recognised that the CPP would, in any event, enjoy a significant margin of appreciation in deciding whether the constitutionally recognised principle of freedom of speech within the Houses of the Oireachtas outweighed any other relevant considerations.

10.5 But even if it could be said that the CPP reached an impermissible conclusion in the circumstances of this case, same would fall a very long way short indeed of demonstrating the sort of egregious or persistent failure to vindicate the rights of a citizen which might invoke a Callely type exception, if one can be said to exist.

10.6 The Court is not satisfied, therefore, that a factual basis has been made out for the application of a Callely type exception, even if one does exist in the circumstances of the role of the CPP in considering a complaint by a citizen that their constitutional rights have been infringed by utterances made in the Dail. Given that finding, it does not seem to the Court that it would be appropriate to reach a definitive conclusion on whether a Callely type exception exists or, indeed, the precise parameters of any such exception if it does exist, for a conclusion on those issues could not affect the result of this case.

10.7 The Court, therefore, concludes that, even were a Callely exception to exist, it could not avail Mr. O’Brien.

10.8 For those reasons, the Court concludes that the High Court was correct to treat Mr. O’Brien’s claim, in the circumstances of this case, as being non-justiciable and to dismiss the claim.
11. Conclusions
11.1 It is important to note both the common ground between the issues which arise in this case and those which arose in Kerins in respect of which judgment was delivered last week. It is also, however, important to note the differences.

11.2 Before the High Court, Mr. O’Brien sought relief in respect of two different types of claim. The first leg concerned directly statements or “utterances” made by two deputies in Dail Éireann. The second leg concerned the manner in which the CPP dealt with a complaint which Mr. O’Brien had made in respect of those utterances.

11.3 No appeal was pursued in respect of the first set of issues so that this judgment is concerned only with Mr. O’Brien’s challenge to the way in which his complaint was dealt with by the CPP.

11.4 In its judgment in Kerins , this Court identified two significant barriers to the justiciability of issues arising from matters which occur within the Houses of the Oireachtas. The first set of restrictions derive from the actual wording of the relevant sub-articles of Article 15 of the Constitution which confer significant privileges and immunities on the Houses of the Oireachtas and their members. As pointed out by this Court in Kerins , and as reiterated in this judgment, the People, by including those measures in the Constitution, have undoubtedly created an area where any rights which may allegedly be infringed can only be protected by the Oireachtas and not by the courts.

11.5 For the reasons set out in this judgment, the Court confirms the view expressed in Kerins that included in the matters which are immune from review by the courts are questions which relate indirectly or collaterally to utterances made in the Houses. The Court has concluded that the challenge which Mr. O’Brien has sought to bring to the decision of the CPP involves, in substance, an indirect or collateral challenge to the utterances of the deputies themselves. The only practical consequence of a successful outcome to proceedings such as this would be that it might lead to a reconsideration by the CPP of its decision in respect of Mr. O’Brien’s complaint. If that should lead to a different result, then a court would have been, at least indirectly or collaterally, involved in dealing with utterances made in the Houses. In the Court’s view such a course of action is impermissible under the Constitution.

11.6 The Court has also considered whether it might be said that there is a Callely type exception to the general rule against non-justiciability which the Court has held applies in this case. However, the Court has indicated that, even if such an exception may exist, it could only apply in the case of either an egregious breach by the Oireachtas of its obligation to protect the rights of citizens in respect of matters which occurred within the Houses or a persistent failure to deal with matters in a way from which it might legitimately be inferred that the Oireachtas did not intend to afford appropriate protection to citizens. Neither of those situations could be said to exist on the facts of this case so that, even if a Callely type exception does exist, it could not avail Mr. O’Brien. For those reasons the Court proposes to leave over the question of whether such an exception exists to a case in which it might prove decisive.

11.7 However, in that same context, the Court has also noted that there is a constitutional obligation on the Houses of the Oireachtas to provide protection for the constitutional rights of citizens in respect of matters which occur within the Houses. Thus, the role of the CPP, in considering complaints by citizens, may involve the carrying out of a delegated constitutional function by the CPP. The CPP thus enjoys the same immunities and privileges as the Houses when carrying out that role.

11.8 However, having made those observations, the fundamental point on which this appeal turns is the view of the Court that the challenge which Mr. O’Brien seeks to bring to the decision of the CPP would amount to an indirect or collateral challenge to utterances made in the Dail, and as such that challenge is impermissible. For those reasons, the Court concludes that Ní Raifeartaigh J. was correct in her conclusion that these proceedings are non-justiciable and further correct in her decision to dismiss Mr. O’Brien’s case. On that basis the appeal must be dismissed.

Riordan v. An Tánaiste

[1998] 1 I.L.R.M. 494

COSTELLO P: INTRODUCTION.

Article 41.3.2 of the Constitution provided that no law should be enacted providing for the grant of a dissolution of marriage. A proposal to amend this provision was contained in the 15th Amendment of the Constitution Bill, 1995. It was proposed that there should be substituted for this sub-article a provision by which a court designated by law would be entitled to grant a dissolution of marriage in certain circumstances set out in the proposed amendment. The proposal was submitted to the people by Referendum held in November, 1995 and by a majority of votes cast in the Referendum approved. The validity of the Referendum was challenged by a petition which was heard in the High Court and then the Supreme Court. The challenge was unsuccessful and the Bill was signed and promulgated by the President on the 17 June, 1996.

In these proceedings the plaintiff has six distinct causes of action. Firstly, he challenges the constitutionality of the 15th Amendment of the Constitution Act, 1995, as distinct from the validity of the Referendum. Secondly, he challenges the validity of the Family Law (Divorce) Act, 1966, an Act which permitted a court to grant a dissolution of marriage provided certain provisions (being those contained in the constitutional amendment) were fulfilled; Thirdly, he challenges the appointment of Mr Alan Dukes as a Minister of the Government which retired from office on the 26 June, 1997; Fourthly, he challenged the validity of the appointment of Miss Justice Carroll as chairperson of a committee concerned with nurses pay and conditions; Fifthly, he challenges the constitutional validity of the appointment of Mr Justice McCracken as sole member of a Tribunal established under the provisions of the Tribunals of Enquiries (Evidence) Act 1921. Sixthly, he challenges the constitutional validity of the establishment by the Government which left office on the 26 June, 1997 of the office of Tanaiste and the appointment of Minister of State to that office.

THE FIRST CLAIM.

The Constitution makes a clear distinction between (a) the power to make laws for the State, which is vested in the Oireachtas (Article 15.2) and (b) the power to amend the Constitution, which is vested in the people (Article 46). It makes provision as to how these distinct powers are to be exercised. Laws enacted by the Oireachtas are instituted by a Bill (Article 20). As soon as a Bill (other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution) has been passed or deemed to have been passed by both Houses of the Oireachtas it is presented to the President by the Taoiseach and is signed by the President and promulgated by him (Article 25.1). Every Bill becomes law as and from the date it is signed by the President (Article 25.4.1). Different provisions apply to the exercise of the power to amend the Constitution. A proposal to amend the Constitution must be initiated in Dail Eireann as a Bill. If passed or deemed to have been passed by both Houses of the Oireachtas the proposal is submitted by a Referendum for decision of the people. If a majority of votes cast in a Referendum are in favour of its enactment into law then the proposed amendment has been approved by the people. On being satisfied that the constitutional provisions have been complied and that the proposal to amend the Constitution has been approved by the people the President is required to sign the Bill containing the proposed amendment and promulgate it as a law (see Articles 46 and 47). It is clear, therefore, that the Oireachtas has no power to enact laws which amend the Constitution — its power is merely to submit constitutional amendments for the approval of the people. It follows, therefore, that the “laws” referred to in Article 15.2.1 and which that Article empowers the Oireachtas to make do not include laws which amend the Constitution. Furthermore the prohibition against the enactment of “laws” repugnant to the Constitution contained in Article 15.4.1 must be a reference to “laws” other than laws to amend the Constitution itself. The Constitution is, of course, a “law” but it is different in kind to laws enacted by the Oireachtas. Approved constitutional amendments are contained in “laws” promulgated by the President. Such laws become part of the Constitution and these too are different in kind to laws enacted by the Oireachtas.

The jurisdiction of the High Court is extended to “the question of the validity of any law having regard to the provisions of the Constitution” by Article 34.3.2. There are two reasons why the “law” referred to in this Article can only be construed to be a law enacted by the Oireachtas under Article 15.2.1 and not a “law” which contains an amendment approved by the people and promulgated by the President under Article 46.5. Judges are required to uphold the Constitution which the people have enacted (Article 34.5.1). And the judges obligation is to uphold the Constitution both as originally enacted and as amended. It would be entirely inconsistent with that duty if judges could declare invalid any provision contained in the Constitution either as originally enacted or as later amended. It follows, therefore, that Article 34.3.2 cannot be construed as conferring on the High Court any jurisdiction to consider the validity of laws which amend the constitution.

Secondly, the Constitution expressly provides that the people have the right “in final appeal to decide all questions of national policy according to the requirements of the common good” (Article 6). Decisions relating to the amendment of the Constitution involve decisions of national policy (see judgment of the Chief Justice in Hanafin v Minister for the Environment and Others 12 June, 1996 at page 39; Reported at [1996] 2 ILRM 161). And so the courts can have no power judicially to review any question of national policy, which has finally been determined by the people, including amendments the people make to the Constitution, and Article 34.3.2. should be so construed.

There is another reason why this claim must fail. The power of amendment expressly enables the people to vary the original Constitution in any way it thinks fit. This means that they are empowered to insert a new provision into the Constitution which is different from and perhaps incompatible with the original text. Such an incompatible provision cannot be invalid as the Constitution permits it to be made. The claim that an amendment to the Constitution can be declared invalid because it infringes some provision of the original text of the Constitution is unsustainable.

The preliminary objection to this first claim which has been raised by the defendants is that the plaintiff is not entitled to make, and the court has no jurisdiction to entertain a challenge to an Act to amend the Constitution which has been duly approved by the people in Referendum and signed by the President pursuant to Article 46 of the Constitution. The objection is, in my judgment, correct and I will dismiss this claim.

THE SECOND CLAIM.

The second claim is a claim for a declaration that the Family Law (Divorce) Act 1996 is repugnant to the Constitution and is therefore unconstitutional null and void and is inoperative. The plaintiff has not pleaded nor has he submitted that this Act is not permitted by the 15th Amendment of the Constitution. Accordingly, if the 15th Amendment cannot be impugned then the Family Law (Divorce) Act 1996 is valid. I therefore must dismiss this claim.

THE THIRD CLAIM.

The third claim is for a declaration that the appointment of Alan Dukes on the 3 December, 1996 as a member of the Government was unconstitutional and therefore null void and inoperative. This claim is based on an allegation that on the 3 December, 1996 the President was physically outside the State, that Mr Dukes was appointed a member of the Government by the Commission constituted by Article 14.2.1 of the Constitution, that the Commission acted unconstitutionally in acting in place of the President on that date and that the appointment was therefore invalid.

The Government of which Mr Dukes was a member left office on the 26 June, 1997. The plaintiff has accepted that the point raised by him is now moot and did not press me to make a declaration under this claim. This is clearly correct and accordingly I dismiss the claim.

THE FOURTH CLAIM.

The fourth claim is for a declaration that the appointment of Miss Justice Mella Carroll as Chairperson of the Commission on Nursing is repugnant to Article 35.3 of the Constitution.

Article 35.3 of the Constitution provides that no judge shall be eligible to hold any other office or position of emolument. It is claimed that as Miss Justice Carroll is still being paid her “wages as a judge by the taxpayer even though she is deliberately, intentionally and knowingly not performing her constitutional duties as a judge”. It is claimed that this is a fraud against the taxpayer by people placed in a position of public trust and that as she is still being paid her salary by the taxpayer she occupies a position of emolument as chairperson of the Commission on Nursing.

The defendants have submitted that the plaintiff has failed to establish the locus standi necessary to invoke the jurisdiction of the court to make the declaration sought and that accordingly this part of the claim should be dismissed. I agree with this submission for the following reasons.

The question of locus standi was considered by the Supreme Court in Cahill v Sutton 1980 IR 269. In that case the plaintiff claimed damages for personal injuries alleged to have been suffered as a result of her treatment by a doctor the defendant in the proceedings. The defendant inter alia pleaded section 11(2)(b) of the Statute of Limitations 1957 and claimed that her claim was statute barred. The plaintiff challenged the validity of this sub-section arguing that as it did not contain any exception in favour of an injured person who did not become aware of the relevant facts on which the claim was based until after the expiration of the period of limitation it was invalid. It was held by the Supreme Court that it was an admitted fact that the plaintiff had known within the statutory period all the facts necessary to enable her to institute an action against the defendant claiming damages for personal injuries and that as the plaintiff’s challenge to the constitutional validity of the sub-section was based solely on the absence of a statutory provision which, if present would not be applicable to the facts of the claim she could not establish any right of hers which had been infringed or was threatened by the absence of such provision. Accordingly, the Supreme Court held that the plaintiff had failed to establish the locus standi necessary to invoke the jurisdiction of the court to determine the validity of an enactment having regard to the provisions of the Constitution.

In the course of his judgment (p 276) the Chief Justice pointed out that had the sub-section been framed so as to incorporate the saver suggested by the plaintiff this would have availed her nothing and the alleged invalidity of the section therefore infringed no right of the plaintiff nor caused her any prejudice. The court, had, therefore, felt bound to consider whether the plaintiff had a sufficient standing to raise this question and the Chief Justice indicated that he was satisfied that she had not the standing necessary. He agreed with the judgment of Mr Justice Henchy and added as follows;

“This court’s jurisdiction, and that of the High Court, to decide questions concerning the validity of laws passed by the Oireachtas is essential to the preservation and proper functioning of the Constitution itself. Without the exercise of such a jurisdiction, the checks and balances of the Constitution would cease to operate and those rights and liberties which are both the heritage and mark of free men would be endangered. However, the jurisdiction should be exercised for the purpose for which it was conferred — in protection of the Constitution and of the rights and liberties thereby conferred. Where the person who questions the validity of a law can point to no right of his which has been broken, endangered or threatened by reason of the alleged invalidity, then, if nothing more can be advanced the courts should not entertain a question so raised. To do so would be to make of the courts the happy hunting ground of the busy body and the crank. Worse still, it would result in a jurisdiction which ought to be prized as the citizens shield and protection becoming debased and devalued.

That is not to say, however, that if those whose rights are affected cannot act or speak for themselves the courts should refuse to hear one who seeks to speak or act for them, even if his own rights are not affected. Such exceptional cases, hopefully rare, must be entertained”.

In the course of his judgment (which was the judgment of the court) Henchy, J, pointed out that in other jurisdictions the widely accepted practise of courts which are invested with comparable powers of reviewing legislation in the light of constitutional provisions “is to require the person who challenges a particular legislative provision to show either that he has been personally affected injuriously by it or that he is in imminent danger of becoming the victim of it” (p 282). He pointed out that this general rule whilst not an absolute rule had much to commend it. He went on (p 283).

“While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury to bring proceedings to have a particular statutory provision declared unconstitutional, there are countervailing considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is essentially another persons case would not be conducive to the administration of justice as the general rule. Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality.

He added, however, (p 285).

“This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so require . . . There will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case there is a transcendent need to assert against the statute the constitutional provision that has been invoked . . . It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule”.

The plaintiff has failed to establish that any right of his has been infringed or threatened by the appointment of Miss Justice Carroll as chairperson of the Commission on Nursing. He has failed to advance any countervailing considerations which would justify a departure from the rule that in the absence of an infringement or threatened infringement of a plaintiff’s constitutional rights the courts should not entertain his claim. Accordingly, I must hold that the plaintiff has failed to establish the locus standi necessary to invoke the jurisdiction of the court to make the declaration he now seeks and I must dismiss this claim.

FIFTH CLAIM.

The fifth claim is for a declaration that the appointment of Mr Justice McCracken as Chairperson of a Tribunal of Enquiry is repugnant to Article 35.3 of the Constitution.

It is pleaded that Mr Justice McCracken was appointed sole member of a Tribunal of Enquiry. This Enquiry was entitled a “Tribunal of Enquiry into payments to politicians by Bernard Dunne, Dunnes Stores and its Subsidiary and Associated Companies”. His appointment was made on the 7 February, 1997. The plaintiff claims that in calling the Chairman of a Tribunal of Enquiry the “sole member of the Tribunal” that this is a deliberate and blatant attempt to undermine the spirit of Article 35.3 of the Constitution, that Mr Justice McCracken is still being paid his wages as a judge by the taxpayer even though he is deliberately intentionally and knowingly was not performing his constitutional duties as a judge, that this is a fraud against the taxpayer by people placed in a position of public trust, that the judge is being paid wages by the taxpayer and hence he does occupy a position of emolument as a sole member of the Tribunal of Enquiries (Dunnes Payments)”.

The defendants have pleaded that the plaintiff has failed to establish the locus standi necessary to invoke the jurisdiction of the court to make the declarations sought and that accordingly this claim should be dismissed. I agree.

The reasons which I have just given as to the locus standi of the plaintiff to seek the declaration sought in the fourth claim apply equally to this claim. The appointment of Mr Justice McCracken as a member of the Tribunal of Enquiry has not infringed any right of the plaintiff or threatened any right of the plaintiff. He has not been able to advance any countervailing consideration as to why the ordinary rule of locus standi established in Cahill v Sutton should not be applied and accordingly I must dismiss this claim.

THE SIXTH CLAIM.

In January, 1993 the “office of Tanaiste” it is claimed was established. The plaintiff claims a declaration that such establishment was illegal and unconstitutional since no legislation was enacted by the Oireachtas to legalise its establishment. He further claimed that the “office of Tanaiste” is not a Department of State and that accordingly the appointment of a Minister of State, Eithne Fitzgerald, to the Office of Tanaiste was illegal and unconstitutional and a declaration is sought that such appointment was illegal and unconstitutional. Other reliefs are claimed arising from what is alleged are these wrongful acts.

The Government which established the office of Tanaiste left office on the 26 June, 1997 and the acts of which the plaintiff complains have ceased. In the course of his submissions I pointed out to the plaintiff that in these circumstances the point raised by him appeared to me to be moot and that I should not entertain this claim. The plaintiff disagreed but notwithstanding this disagreement I ruled against him and concluded that I should dismiss the claim.

The court has no jurisdiction to hear and determine an issue which is purely hypothetical; it is not a justiciable issue, no matter how intellectually interesting the point may be. As the impugned administrative acts were committed by a government which has left office and have expired with it and as the plaintiff suffered no personal detriment from them the court must decline to entertain this claim. Even if an impugned administrative act or statute is not spent the court may still decline to adjudicate on the issue raised because of a plaintiff’s lack of standing. That is the position in this case. For reasons already given the plaintiff has no locus standi to raise this issue and his claim should be dismissed on this ground also.

It follows, therefore that all the claims advanced by the plaintiff are dismissed.

Howard and Ors v Commissioners of Public Works in Ireland and Ors (No. 2)

[1994] 2 ILRM 301 Lynch J
Preliminary
This plenary action arises out of and follows on from earlier proceedings bearing record number 331JR of 1992 (the 1992 action) between the same plaintiffs as in the present action as applicants and the first named defendant only (the commissioners) as respondent.

In the 1992 action the plaintiffs claimed and were granted declarations and an injunction relating to the proposals by the commissioners to build a visitor centre on a site in the Burren National Park near Mullaghmore in the County of Clare, proposals which have given rise to much public controversy. This action is brought to interpret and enforce the declarations and the injunction granted in the 1992 action on 12 February 1993 in the light of the State Authorities (Development and Management) Act 1993 (the 1993 Act) which was passed by the Oireachtas and became law on 18 February 1993, that is to say six days after the delivery of the judgment of the High Court on 12 February 1993.

The 1992 action was tried by Costello J and the order of the High Court on 12 February 1993 was consequent on a reserved judgment delivered by him on that date (see [1994] 1 IR 101). The operative part of the order of 12 February 1993 is as follows:

The court doth declare that the development by the respondent of the Burren National Park Visitor Centre at Mullaghmore in the County of Clare undertaken pursuant to a decision communicated to the applicants herein about 23 October 1992 is ultra vires the powers of the respondent

And the court doth declare that the aforesaid development is illegal by reason of there being no planning permission for such development

This action was heard by me commencing on Tuesday, 26 April 1994 and concluding on Friday, 29 April 1994. The trial before me was by agreement of the parties based on affidavits sworn and filed in connection with an application for an interlocutory injunction which was granted on 29 July 1993 in this action. Those affidavits comprised a joint affidavit by the first and second named plaintiffs, James Howard and Patrick McCormack, sworn on 7 July 1993; a joint affidavit sworn by Declan Kelleher, Sean Roche and Sean O’Brien on 23 July 1993; affidavits of Patrick Flanagan and Michael O’Donoghue both sworn on 23 July 1993 and an affidavit of Michael Canny sworn on 26 July 1993.

The controversy in this action related to the status of the first declaration as to ultra vires and the injunction based thereon in the judgment and order of the High Court of 12 February 1993 in the 1992 action in the light of the 1993 Act. S. 2 of the 1993 Act so far as is material to this action provides as follows:

(1) A state authority shall have, and be deemed always to have had, power—

(a) to carry out, or procure the carrying out of, development,

(b) to maintain, manage, repair, improve, alter, enlarge, reduce in size, remove or otherwise deal with buildings or structures or other works or property of, or provided under paragraph (a) of this subsection by, a state authority,

(c) to procure the maintenance, management, repair, improvement, alteration, enlargement, reduction, removal or dealing aforesaid,

(d) to supply goods, and to provide services, whether upon payment or free of charge.

(2) A state authority shall have, and be deemed always to have had, all such incidental, supplemental, ancillary and consequential powers as, in the opinion of the authority, are necessary or expedient for the purposes of the exercise by it of the powers aforesaid.

(3) If, because of any or all of its provisions, subs. (1) and (2) of this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of those subsections shall be subject to such limitations as are necessary to secure that they do not so conflict but shall otherwise be of full force and effect.

The facts of the matter giving rise to this action are set out fully in the judgments of the High Court of 12 February 1993 and of the Supreme Court of 26 May 1993 in the 1992 action and accordingly I do not repeat them here.

The submissions for the plaintiffs
Counsel for the plaintiffs submitted that by virtue of s. 2(3), the 1993 Act has no application to the site of the proposed visitor centre because otherwise the plaintiffs’ constitutional rights based on the judgment and order obtained by them on 12 February 1993 would be unconstitutionally affected by depriving the plaintiffs of the fruits of the said judgment and order. They submitted that the commissioners can never develop this particular site as a visitor centre and consequently the existing works should be removed and the site restored to its pre-works condition although they conceded that by virtue of the 1993 Act and subject to obtaining planning permission, the commissioners might build an identical visitor centre next door to this site or might likewise erect anything other than a visitor centre on this site.

The plaintiffs submitted further that if the 1993 Act were construed so as to apply to the judgment and order of 12 February 1993 it would involve an invasion of the exclusive domain of the courts in the administration of justice and also an attack on their personal constitutional right of access to the courts and on their constitutional property rights and an injustice done to them.

Apart from the foregoing broad outline of the plaintiffs’ case, counsel advanced detailed submissions under six headings as follows:

(1) The nature of the judgment and order of 12 February 1993.
(2) The content and effect of that judgment and order.
(3) The effect of the 1993 Act in relation to the judgment and order.
(4) The modes of interpretation of retrospective statutes.
(5) The judicial domain, and
(6) Remedies.
I do not think that it is necessary for me to review in detail the many authorities cited in support of these propositions. A list of the authorities cited by counsel for both the plaintiffs and the defendants is annexed to this judgment. A nutshell summary of counsels’ submissions under these six headings is as follows.

Under heading (1) counsel submitted that the judgment and order of 12 February 1993 vested in the plaintiffs a constitutional personal right and property right which has to be vindicated through the courts to remove an injustice done to the plaintiffs. A right/status is conferred on the plaintiffs by the judgment and order and must be vindicated.

Under heading (2) counsel submitted that the status of the commissioners who caused the works to be done is what is in question in the action and that the court should give effect to the finding of their status as having no power to do the works by requiring them to reinstate the site to its pre-works condition. He also referred to the plaintiffs’ right as arising from the Constitution based on a judicial determination to have that right vindicated so as to remedy the injustice done as found in the judicial determination of 12 February 1993.

Under headings (3) and (4) counsel submitted that while the 1993 Act was n general intended to be retrospective, it was not so in relation to the site of the Mullaghmore development. To construe it otherwise would give it an unconstitutional effect and s. 2(3) of the 1993 Act expressly ensured that it did not apply to the Mullaghmore development.

Under heading (5) counsel submitted that if the Act were construed to abrogate the final judgment and order of 12 February 1993 it would contravene Articles 34 and 35 of the Constitution and therefore no such construction could be adopted. The plaintiffs have a vested personal and property right arising from the judgment and order of 12 February 1993 not only to have the benefit of the declarations therein contained but also to have effect given to them by a mandatory injunction to remove the works already done and restore the site to its pre-works condition.

Under heading (6) counsel submitted that all organs of state were bound to support the constitutional personal and property rights of the plaintiffs acquired by the final judgment and order of 12 February 1993 and therefore the proper remedy was for the court to grant a mandatory injunction requiring the defendants to remove the works already done as partly shown in photographs E2 and E3 and restore the site to its pre-works condition, that is to say as a disused quarry as partly shown in photograph E1, the said three photographs being exhibited in the affidavit of Michael Canny already referred to.

The submissions for the defendants
Counsel for the defendants submitted that the declarations in the judgment and order of 12 February 1993 deal with the legal position up to and including that date and not otherwise. The first declaration says that the development at the Burren ‘is’ultra vires; the second declaration says that the development is illegal ‘by reason of there being no planning permission for such development’.

Counsel further submitted that the parties to the 1992 action litigated their disputes resulting in a final decision, namely that of 12 February 1993. The organs of state respect each other’s domain. The High Court found an absence of powers in the commissioners which had never been adverted to previously. The Oireachtas accepted the correctness of that finding and therefore did not appeal therefrom but instead sought as a matter of urgency, in view of the many other buildings and projects which might otherwise be in jeopardy, to rectify the position and confer such powers on the commissioners. However, the Oireachtas did not seek to interfere in any way with the judgment and order of the High Court of 12 February 1993 in the 1992 action. Hence s. 2(3) of the 1993 Act the effect of which is to leave in full force and effect the status of absence of powers in the commissioners in relation to the Mullaghmore development up to 17 February 1993 as found and declared by the High Court on 12 February 1993 in the 1992 action. The judgment of Costello J of that date in the 1992 action and also the interlocutory injunction granted by him in this action on 29 July 1993 clearly envisaged that additional powers might and indeed ought to be conferred on the commissioners to meet the exigencies of the present age and this is precisely what has been done by the 1993 Act.

Counsel further submitted that nowhere does the judgment or order of the High Court of 12 February 1993 confer on the plaintiffs a right to prevent the defendants from proceeding with the Mullaghmore development if they are given the powers to do so by the Oireachtas (as has been done by the 1993 Act) and if they obtain planning permission from the appropriate planning authority. The plaintiffs have no vested or accruing contractual or property or other rights which are affected by the 1993 Act. They now ask for a mandatory injunction to restore the site to the condition of a disused quarry, something which they did not ask for in the 1992 action and they have revealed now in the course of argument that their real purpose in this action is to bring pressure on the commissioners and the government to abandon the Mullaghmore development rather than any genuine concern for vague and incomprehensible constitutional rights which they claim to have vested in them.

Conclusions
The plaintiffs do not allege any actionable nuisance by the defendants and they accept that the development at Mullaghmore is on the defendants’ lands and not on any lands which they own.

Throughout his submissions counsel for the plaintiffs referred to the injustice done to his clients. For example, he said that the finding that the commissioners acted ultra vires meant that an injustice was done (presumably to his clients, the plaintiffs) and that that injustice should be remedied to ensure that right is done. This seems to me to be erroneous. It does not follow that because a person does something which he has no power to do that he thereby does an injustice to someone else.

Again counsel said that the plaintiffs’ right in this action arose out of a constitutionally based judicial determination (the order of 12 February 1993) to vindicate the right of the citizen so as to remedy the injustice as found in that judicial determination. Once again this seems to me to be quite erroneous. The judgment and order of 12 February 1993 nowhere finds that any injustice was done to anyone. It finds that the commissioners had no power to do the works they had undertaken and for that reason it injuncted them from continuing to do those works. It also found that even if the commissioners had power to do those works, they would first have to obtain planning permission before they could lawfully do them and for that reason also because they had not obtained planning permission the order injuncted them from continuing to do those works.

Again when submitting that the 1993 Act must not be construed so as to invade the judicial domain and having stated that the purpose of these proceedings was in effect to persuade the commissioners and the government to change their minds about proceeding with the Mullaghmore visitor centre, counsel said that an injustice done is any wrong not necessarily affecting any citizen. This seems to me to be an extraordinarily wide definition of an injustice done. The country lad returning home from his local cinema in hours of darkness on a bicycle with no lights, front or rear, and the motorist driving at 40 m.p.h. in a 30 m.p.h. speed limit area certainly do wrong but having arrived safely home without colliding with any person or thing they would not be surprised to be told that they had done wrong, and indeed criminal wrong, but probably would be very surprised, and in my opinion rightly so, to be told that they had done an injustice. Perhaps because their conduct involved criminal activity, they might be said on a philosophical view to have done an injustice to the people of Ireland but this could hardly be said in relation to conduct which is merely wrong in civil law such as I put to counsel in the course of argument, namely a private company doing something which its memorandum of association does not empower it to do but not detrimentally affecting any other citizen.

Because of counsel’s constant reference to ‘injustice done’, I asked him at the end of his submissions in reply to explain to me in plain ordinary language what was the injustice done. He replied:

An injustice has been done in that the determination obtained in the High Court by the judgment and order of 12 February 1993 is not to be upheld or to ensure to the plaintiffs’ benefit as a logical extension on the determination on ultra vires.

I regret to have to say that I remain as wise after this explanation as before.

The plaintiffs relied very heavily on the decision of the Supreme Court in Shelly v. Mahon [1990] 1 IR 36 as establishing that something which is a nullity because of contravention of a citizen’s constitutional rights cannot be validated by legislation. That is undoubtedly so but it does not decide that the matter which constituted the contravention cannot be corrected by legislation so as to allow appropriate steps to be taken thereafter. I quote from the judgment of Walsh J at p. 44 of the report:

On the assumption that the initial complaint was a valid complaint and was made within time the position is that this complaint has not yet been heard and is outstanding and has yet to be tried. If it is to be tried it can be tried only in actual proceedings before a court properly constituted and presided over by a judge whose appointment is valid under the Constitution.

See also the concluding paragraphs of the judgments of Griffin J at p. 435/491 and of Keane J at p. 440/496 in the case of Glavin v. Governor of Mountjoy Prison [1991] 2 IR 421; [1991] ILRM 479.

As is clearly stated in the judgment of Costello J of 12 February 1993 in the 1992 action, the commissioners are a creature of statute and therefore have only the powers given to them by statute. Having comprehensively reviewed the various statutes creating and relating to the commissioners, including pre-union Irish statutes dealing with the precursors of the commissioners and right down to An Blascaod Mór National Historic Park Act 1989, Costello J found that none of the statutes creating or relating to the commissioners conferred power on them to carry out the development proposed at Mullaghmore. The Oireachtas cannot alter or reverse that finding or the declaration and injunction made on foot of the same. To attempt to do so would contravene the constitutional separation of the powers of government given between the various organs of state established by the Constitution in that the legislature (the Oireachtas) would be trespassing on and into the judicial domain. Hence it is clear that by virtue of s. 2(3) of the 1993 Act both subs. (1) and subs. (2) must be read, in so far as the development of the visitor centre at Mullaghmore by the commissioners is concerned, as if the words ‘and be deemed always to have had’ were omitted therefrom.

The critical question in this case is then whether subss. (1) and (2), even without those words relating to the past can apply to the commissioners in relation to the visitor centre at Mullaghmore from the date of the passing of the 1993 Act and into the future without altering or reversing the finding and declaration by the High Court as to ultra vires.

The basis of that finding and declaration as I have said is that the commissioners are a creature of statute and were not given such powers by any statute prior to the date of the judgment. Nowhere is it suggested in the judgment nor could it be rationally suggested that any of the three legislatures existing since the creation of the commissioners in the year 1831, that is to say the United Kingdom legislature, the Oireachtas created by the Constitution of 1922 and the present Oireachtas, could not have conferred such powers by appropriate legislation in the past. Why should it be impossible for the Oireachtas to do so now by the 1993 Act?

The conferring of such powers was not only envisaged by Costello J but was implicitly suggested by him in the concluding part of his judgment on the question of the powers or the absence of powers in the commissioners to develop and manage the visitor centre at Mullaghmore and I quote (at p. 116):

I must conclude that this early 19th century administrative machine is being asked to perform functions it was never designed to perform — to meet 20th century demands it needs to be supplied with new parts, as was done in the case of the Blasket Islands: perhaps even, it requires to be replaced altogether.

I am satisfied therefore that there is no constitutional bar to the application of s. 2(1) and (2) of the 1993 Act omitting the words ‘and be deemed always to have had’ therefrom to the commissioners in respect of the development of the visitor centre at Mullaghmore in the County of Clare.

In so far as concerns the powers of the commissioners, the declaration in the order of 12 February 1993 remains valid and unaltered as at that date but circumstances having since changed and the missing powers having been conferred, it is no longer a valid basis to support the injunction contained in the order. The second declaration as to illegality by reason of there being no planning permission remains and supports the injunction as long as that situation obtains. The injunction contained in the order of 12 February 1993 in the 1992 action is worded in rather absolute terms without any reference to the two preceding declarations on which it is founded. It would have more accurately reflected the terms of the judgment if it read as follows:

AND IT IS ORDERED that the respondent be restrained from proceeding with or undertaking any works forming part of the development of the proposed Burren National Park Visitor Centre and waste treatment plant and car park thereof at Mullaghmore in the County of Clare so long as the respondent has no power to carry out the said works and so long as the said development remains unauthorised under Part IV of the Local Government (Planning and Development) Act 1963.

I myself in the course of submissions by counsel raised the question as to whether I could have any power to alter the injunction even if the factual basis of both declarations ceased to be valid and subsisting. The injunction is not an interim or interlocutory injunction. It is a final injunction given at the end of a full trial and in relation to the planning aspect of the matter after a full hearing and judgment in the Supreme Court.

It is however clear to me that Costello J envisaged alteration of the injunction if circumstances changed. As I have already mentioned, the matter was tried by me by agreement of the parties on affidavits used to ground an application for interlocutory injunctions in this case and that application was heard by Costello J in July 1993. In a reserved judgment delivered on 29 July 1993 Costello J stated inter alia as follows:

The order of 12 February was made because it was concluded (a) that the proposed development was ultra vires the commissioners’ statutory powers and (b) that the proposed development was illegal because it was being undertaken without permission under s. 24 of the Local Government (Planning and Development) Act 1963.

…

But Mr Sutton SC on behalf of the plaintiffs has pointed to a second reason why the plaintiffs are entitled to injunctive relief. He points out that until the order of 12 February 1993 is vacated or altered no visitor centre can be constructed at Mullaghmore.

This has not been accepted by Mr O’Reilly SC on behalf of the commissioners. But I think the contention is correct. It seems to me that the order of the court quite clearly prohibits the commissioners from carrying out any development involving the erection of a visitor centre at Mullaghmore and that order will remain effective even if permission for development under the 1993 (sic 1963?) Act is obtained. Should such permission be obtained it would of course then be open to the commissioners to apply to the court to discharge the injunction on the ground that no invalidity attaches to the proposed development because (a) permission to develop has been obtained under the 1963 Act and (b) a statutory power to develop has been conferred.

As a visitor centre cannot be constructed at Mullaghmore until the order of 12 February 1993 has been vacated I propose to order that until the trial of this action or further order no development of a visitor centre at Mullaghmore be undertaken until the order of 12 February 1993 has been vacated or appropriately amended to permit it. In these circumstances it is unnecessary for me to express any views on the plaintiffs’ contentions on the effect of the 1993 Act.

…

The parties may well consider that this central legal issue between them, namely the effect of the 1993 Act, should best be determined in these proceedings rather than on an application to vacate the order of 12 February and so I will give leave to serve pleadings in the long vacation.

The interlocutory order dated 29 July 1993 perfected on foot of the foregoing judgment provides as follows:

It is ordered that the defendants and each of them, their servants or agents be restrained pending the trial of this action (or until further order) from carrying out any further development on the visitor centre at Mullaghmore Kilnaboy in the County of Clare until the order of 12 February 1993 has been vacated or appropriately amended to permit it.

I have held that s. 2(1) and (2) of the 1993 Act apply to the commissioners prospectively and now give them the powers which they lacked prior to 18 February 1993. That basis or foundation for the injunction of 12 February 1993 is now gone but I am conscious of the fact that this is a separate plenary action from the 1992 action in which the injunction was made. I do not see that I can by an order made in this plenary action amend an order made in completely separate judicial review proceedings (the 1992 action). I think that an application should be brought in the 1992 action based on this judgment if the order of 12 February 1993 is to be vacated or amended and I think that the decision of the Supreme Court in the case of Attorney General (Society for the Protection of Unborn Children) v. Open Door Counselling [1994] 1 ILRM 256 envisages that this may be done, where the order as perfected does not accurately reflect the judgment. In this case, Costello J concluded his judgment on the ultra vires aspect of the 1992 action as follows (at p. 116):

I am forced to conclude that the commissioners are acting ultra vires in continuing with the erection of this visitors’ centre and would be acting ultra vires if they were, having built it, to manage it. Accordingly, the applicants are entitled to a declaration to this effect and to an appropriate injunction.

The order as drawn and perfected does not contain an ‘appropriate’ injunction. The injunction contained in the order is absolute and unqualified in terms, instead of being qualified in the manner suggested earlier in this judgment as more correctly reflecting the terms of the judgment of Costello J of 12 February 1993 in the 1992 action.

In this case I think that it is appropriate that I should go through each of the reliefs claimed in the prayer at the end of the statement of claim and deal with each of them individually.

(A) A declaration that by virtue of the judgment and order of the High Court Costello J made 12 February 1993 to the effect that the development by the first named defendants of the Burren National Park Visitor Centre at Mullaghmore in the County of Clare is ultra vires the powers of the first named defendants the provisions of the State Authorities (Development and Management) Act 1993 have no application to the development carried out or intended to be carried out by the first named defendants, their servants or agents on the first named defendants’ lands at Mullaghmore Kilnaboy in the County of Clare and that the said works and development and the intended or proposed works on the said site are illegal.

I refuse this declaration. The 1993 Act applies to the development in question as I have already found.

(B) A declaration that the first named defendants are not entitled and have no power in law to build or continue with any development, building work or site clearance work on, at or near the first named defendants’ lands at Mullaghmore Kilnaboy in the County of Clare.

I refuse this declaration. The commissioners now have such power by virtue of the 1993 Act subject, of course, to obtaining appropriate planning permission.

(C) An injunction restraining the defendants either by themselves, their servants or agents from carrying out any building, development or site clearance work on, at or near the defendants’ lands at Mullaghmore Kilnaboy in the County of Clare.

I refuse this injunction. So far as the absence of planning permission is concerned, the commissioners are already injuncted by the order of 12 February 1993 in the 1992 action and there is no basis for making a further such injunction in this action. However, it is right that I should point out that the appropriate form of injunction in the 1992 action having regard to the passing of the 1993 Act would now be:

AND IT IS ORDERED that the respondent be restrained from proceeding with or undertaking any works forming part of the development of the proposed Burren National Park Visitor Centre and waste treatment plant and car park thereof at Mullaghmore in the County of Clare so long as the said development remains unauthorised under Part IV of the Local Government (Planning and Development) Act 1963.

(D) If necessary an interim and/or interlocutory order or injunctions restraining the defendants either by themselves, their servants or agents from carrying out any building, development or site clearance work on, at or near the defendants’ lands at Mullaghmore Kilnaboy in the County of Clare.

An interlocutory injunction was granted on 29 July 1993 and has, with the delivery of this judgment, now lapsed.

(E) A declaration that the State Authorities (Development and Management) Act 1993 and in particular s. 2(1) and s. 2(2) are invalid having regard to the provisions of Articles 40 and 43 of the Constitution of Ireland and Articles 6 and 34 of the Constitution of Ireland.

I refuse this declaration.

(F) A mandatory injunction directing the first named defendants, their servants or agents to clear the site of the proposed visitor centre at Mullaghmore Kilnaboy in the County of Clare of all building materials, buildings, machinery, offices, tarmacadam, pipes and all other material brought onto the said site for the purpose of and connected with the building of the said visitor centre and to restore the said site to the condition it was in prior to the commencement of building work on the said site on 23 October 1992 and if necessary an interim and/or interlocutory injunction or injunctions in this regard.

I refuse this injunction even though the works presently on the site were unlawfully executed and are unlawful. The proper forum henceforth for the determination of the question whether or not the existing works may remain and whether or not the visitor centre may be completed is the planning authority.

(G) Such further and other declaratory and/or injunctive orders as to the court might seem proper and just.

Refused.

(H) Further and other relief.

Refused.

(I) Damages.

Refused.

(J) Liberty to apply.

I give liberty to all parties to apply as they may think proper and necessary.

(K) Interest pursuant to the Courts Act 1981, s. 22 as amended.

Refused.

(L) The costs of the proceedings.

I will hear submissions from counsel for the plaintiffs and counsel for the defendants as to the costs.

McD (a minor) v Minister for Education & Skills

[2013] IEHC 175

Judgment of Ms. Justice lseult O’Malley delivered the 17th April. 2013
1. Introduction
This is an application for a mandatory interlocutory injunction directing the first, seventh and eighth respondents to provide forthwith an appropriate educational placement for the applicant. The applicant is a teenage girl with a variety of mental health problems. She has been expelled from school and an appeal against that decision was turned down. In the substantive proceedings in the case she seeks orders of certiorari in relation to those decisions; in the alternative orders of mandamus directing the first, second, seventh and eighth respondents to provide for her an appropriate educational placement together with appropriate educational, therapeutic and support services suitable to her needs; a declaration that the failure to provide her with the foregoing has deprived her of her constitutional rights under Articles 40, 41 and 42 of the Constitution and also her rights under s.7 of the Education Act, constitutional and statutory rights.

2. The application currently before the court arises from the fact that she has been out of school since the expulsion and efforts to find an alternative placement have to date been unsuccessful. At the moment her education is limited to 10 hours per week although funding is available to her for up to 20 hours.
Background
3. The applicant was born on the 3rd July, 1998 and lives with her father and younger brother. The diagnosis of her condition is complex and includes moderate intellectual disability, mixed emotional and conduct disorder with significant challenging behaviour, a history of attachment disorder, attention deficit hyperactivity disorder and, possibly, foetal alcohol syndrome. What this means in terms of her behaviour is described by her father in his affidavit sworn on the 2nd November, 2012:

[A.] can be hostile towards both me and my son and has often been violent towards me. This has taken the form of hitting, kicking, punching and biting, all of which are regular occurrences. She sleeps very poorly in spite of the fact that she has been prescribed sleep medication for a number of years. She frequently wakes up after only a few hours sleep, and will often begin assaulting me with no reason while I am asleep. There have been many times when I have had to lock M., my son, into his bedroom at night, because he too has been subjected to assaults in the middle of the night. A. also regularly assaults M. during daylight hours, and this is often exacerbated if she has seen me showing him affection. She dislikes me showing him any affection and this has caused a significant difficulty for both M. and me.
A is often effectively kept under house arrest for her own protection, and in those circumstances she has been known to break furniture and smash windows in frustration. The incidents of her being kept in the house have increased over the last year due to the fact that I have no respite care available for A. A previous respite arrangement, which I had in place with my sister, whereby she would take A. every weekend, broke down and a subsequent respite arrangement that had been arranged through the HSE also broke down after a very short time due to A.’s violent behaviour towards the respite carer and her husband.

A will often lie on the floor and scream at the top of her voice if she does not get her own way and she has done this in public on a regular basis. This has resulted in a significant diminution of my ability to have a normal family life with her.

4. Is should be said that A’s father has demonstrated enormous motivation and determination in caring for his children in extraordinarily difficult circumstances and that A.’s relationship with him is spoken of highly.
5. Between 2005 and 2008 A. and her family were living in Northern Ireland. A. attended school there and had access to therapeutic supports but it is noted in the reports that her violence to other pupils was a difficulty. In 2008 the family came back to this jurisdiction. It seems to have taken quite some time to organise an appropriate school placement for her. In 2010 A. finally obtained a place in St. Michael’s House Grosvenor School (“St. Michael’s”). It appears from the reports that initially she was in a class of eight, with a teacher and two Special Needs Assistants. Her behaviour was very challenging, and after some time she was put in a class with only one other pupil, a teacher supported by two SNAs. It seems that even with this level of attention there were incidents of violence. By the end of December, 2011 she had been suspended three times. On the one day that she went to school in January, 2012 she was violent to another pupil and was re-suspended.

6. On the 20th February the Board of Management decided to expel A. “in order to ensure good order, discipline and the smooth and safe running of the school”. After a 20 school-day consultation period the Board confirmed its decision on the 20th March, 2012, stating that

“The Board considers that A.’s behaviour is a persistent cause of significant disruption to the learning of others and to the teaching process, and that her continued presence in the school constitutes a real and significant threat to the health and safety of other pupils and staff”
7. An appeal pursuant to s.29 of the Education Act, 1998 was turned down by the fourth, fifth and sixth named respondents on the 22nct May, 2012. The appeals committee considered that the sanction was proportionate to the behavioural challenges experienced by school management and staff when dealing with A.
8. On the 12th June, 2012 the Department wrote to A.’s father to inform him of the result of the appeal and to further inform him of the availability of assistance in securing a school place from the National Educational Welfare Board.

9. The decisions in relation to the expulsion are, as noted above, yet to be dealt with as part of the subject-matter of the substantive proceedings.
Developments since A.’s expulsion from school
10. From the 23rct April to the 29th June, 2012 A. received two hours home tuition per day.

11. On the 21st June, 2012 A.’s solicitor wrote to the Department of Education and Skills referring to the failure of the appeal, the fact that A. was now to make appropriate provision for her schooling. The letter stated that it was “very important that she has social interaction with her peers in a school environment”. In closing, it was stipulated that in the event that no reply was received within 14 days, application would be made to court.

12. The Department replied on the 5th July and again, in greater detail, on the 26th July, 2012. This letter set out the first named respondent’s understanding of his constitutional obligations (specifically, “to provide for education and, where the public good requires it, to provide other educational facilities or institutions rather than to provide education directly”) and his obligations pursuant to the Education Act, 1998 (“to ensure, subject to the provisions of the Act, that there is made available to each person resident in the State a level and quality of education which is appropriate to meeting the needs and abilities of that person”). The services provided by the National Council for Special Education, the National Educational Welfare Board (“the NEWB”) and the National Educational Psychological Service were outlined. Of these, it would appear that the NEWB was the most immediately relevant body, as it is responsible for school attendance and is charged with giving assistance in cases where there is difficulty in finding a placement.

13. In relation to the specific circumstances of A.’s case, it was stressed that the Minister did not have a direct role in identifying school placements but that, in an effort to be of assistance, applications for enrolment had been made to Carmona Special School in Dun Laoghaire and St. Augustine’s School in Blackrock. It was considered that Carmona would be appropriate because it was planning to establish a new class in September 2012, while St. Augustine’s could also be suitable because A. lived in its catchment area and it had a special class attached to St. John of God’s hospital. The Department said that a named Education Welfare Officer was liaising with Carmona Services and that if additional resources were required for A.’s support in accessing the placement the NCSE would consider any applications from the school.

14. The Department also referred to the fact that Ms. Elaine Nolan, of the NEWB, was in the process of convening a meeting on the 9th August, 2012 for the purpose of facilitating A.’s return to school at the earliest opportunity. The persons to be invited to attend were described as “key personnel (including education stakeholders) who have been involved in A.’s case to date.”

15. After the meeting the applications to Carmona (originally made in May) and St. Augustine’s (originally made in July) were followed up, although according to Ms. Nolan A.’s father wished to prioritise an appeal against the expulsion. St. Augustine’s turned down the application because it is a school for children with mild intellectual disability and not suitable for A., who has moderate intellectual disability. Carmona’s initial response was that it could not take A. because it did not have access to psychiatric supports and therefore felt unable to meet her needs. Ms. Nolan continued to pursue this application, asking for it to be brought to the school’s Board of Management and, as appears from the correspondence, liaising with the Health Service Executive, requesting support services to address the school’s concerns. Carmona responded in October, requesting reports from A.’s school in Northern Ireland, St Michael’s, hospital and psychological reports and information in relation to involvement with the HSE from birth to date. Ms Nolan was not in a position to furnish these as the NEWB considered that they should be sourced directly by the school. She continued to ask Carmona to progress the application. It would appear that Carmona replied in late December saying that it could not progress matters without the reports. Ms Nolan then requested a meeting in January, to which she proposed to invite the relevant organisations to gather the information required by Carmona.

16. Meanwhile, by order made on the 5th November, 2012 the applicant had been granted leave to seek judicial review as set out above. This Notice of Motion was issued on the 6th November, 2012 and came on for hearing on the 6th March, 2013.

17. On the 8th November, 2012 the Department sanctioned a further grant of home tuition for up to 20 hours per week. This is still available to A. but as it happens she is not able to cope with more than two hours per day. There is no complaint about the tutor who is working with A.

18. The requested meeting with Carmona was scheduled for February, 2013 and then re-scheduled for the 4thMarch, 2013, two days before the hearing of this application. It was attended by A.’s father and her home tutor, representatives of the NEWB, Carmona School, the HSE and the Department of Education. Carmona confirmed its view that it did not have the clinical and therapeutic supports needed by A. and it would not, therefore, offer her a place.

19. As a result of the discussions at the meeting Ms. Nolan contacted St. Catherine’s Special School in Wicklow to enquire about applying for a place there. She says that she was told that there was a waiting list and A. was outside the catchment area. She further says that A.’s father contacted her the next day, after consulting his solicitor, to say that he did not want an application to be made at this time. Ms. Nolan says that she will continue to seek alternative placements for A.

20. Mr. McD., for his part, wishes to make it clear that he felt that it was obvious after the conversation Ms. Nolan had with the principal of St. Catherine’s that A. would not be offered a place and that he thought there was no point pursuing it. He states his belief that Ms. Nolan has done all that she can do to find a placement for A. but that, through no fault of hers, no placement appears to be available.

21. As of the date of hearing, therefore, the position is that A has not attended school for well over a year. She now receives two hours home tuition per day, with the option of extending that up to four hours if she was able to cope with it.

22. It is Mr. McD.’s belief that the lack of a school place is having a deleterious impact on A.’s social skills as well as on her education, with consequent limitations on her future prospects.
The Health Service Executive
23. Although the HSE was not a party to this motion its role was the subject of some comment and affidavits filed on its behalf in the main action were relied upon to some extent.

24. As it is not a party I will not make any findings or rulings in respect of the HSE and therefore I think I should not go into the affidavits in any great detail. It may however be important to note that in January 2012 a report by Dora Marciniak, Clinical Psychologist, remarked that

“A. seems not to know how to interact with her peers and other children. She would benefit from social skills activities, which would support development of abilities such as making friends, entering and ending conversations appropriately and playing with other children.”
25. The care plan drafted for A. by Celine Judge and Karen Hall, Acting Team Leader of the Protection and Welfare Social Work Team, after the institution of these proceedings states that
“A. requires an educational placement in a school for children with moderate learning difficulties, with a clinical team including speech and language, social work, psychology [and} psychiatry.
It will be essential that a care plan is devised at a Multidisciplinary Meeting when A. recommences education, which will take into consideration A.’s educational needs and abilities, speech and language needs, attachment difficulties, behavioural difficulties and social skills and plan how best to meet any deficits in her development.”

Submissions
26. It is common case that the State has a constitutional obligation to provide for free primary education and the applicant has a right to receive free primary education. On behalf of the applicant Mr. de Blacam says that that right must be enforceable by way of a mandatory order where that is necessary to ensure that provision is made, or it will be meaningless. He acknowledges the principle, based on the separation of powers and most strongly enunciated in Sinnott v Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259, that the courts are reluctant to make mandatory orders against State parties and prefer where possible to grant relief by way of declaration but says that the authorities do provide scope for exceptional cases. This, he contends, is one such case. It is further argued that declaratory relief would not be appropriate in this application, there being no such thing as an interim or interlocutory declaration.
27. In particular, the applicant relies on the following dicta.

Sinnott
• Keane CJ at p. 631-

“..while in principle there is nothing to preclude the granting of mandatory relief directed to the Minister concerned, it is appropriate, in my view, for the courts to presume that where this court grants a declaration that he or she has failed to meet his or her constitutional obligations, the Minister will take the appropriate steps to comply with the law as laid down by the courts.’

• Denham J at p. 656 –

“…the courts assume that decisions will be implemented and that mandatory orders are not necessary. Thus a declaratory order, if any order is necessary, is usually appropriate. However, I would not exclude the rare and exceptional case, where, to protect constitutional rights, the court may have a jurisdiction and even a duty to make a mandatory order.”

• Geoghegan J at p. 724 –

“…I do think that in very exceptional circumstances it may be open to a court to order allocation of funds where a constitutional right has been flouted without justification or reasonable excuse of any kind.”

• Murray J at p. 336-

“…I do not wish to determine that the courts may never make a mandatory order in anv form as opposed to a declaratory or other order, against an organ of state.
In so far as McKenna v An Taoiseach (No.2) [1995] 2 IR 10, Crotty v An Taoiseach [1987] IR 713 and District judge McMenamin v Ireland [1996[ 3 IR 100 might be said to be authority for the making of some form of mandatory order where there is “a clear disregard” by the State of its constitutional obligations, it must be borne in mind that in none of those cases was a mandatory order granted …. For example, a mandatory order directing the executive to fulfil a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its obligations in an exemplary fashion. In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness”.

28. It might be noted in passing that this last passage was agreed with by Hardiman J, who however commented that he did not believe that any circumstances which would justify the making of such an order had occurred since the enactment of the Constitution.
29. The applicant further relies on two High Court decisions that post-date Sinnott and T.D., being the judgments of Herbert J in Nagle v Southwestern Area Health Board unrep. High Court, 30th October, 2001 and Laffey J in Cronin v Minister for Education and Science [2004] 3 IR 205.

30. In Nagle, a mandatory injunction was granted directed to the Minister for education requiring that he forthwith provide for appropriate, free primary education and support services to the plaintiff, who was not at the time receiving any education service at all. Herbert I said that he felt he had no option but to do so, since he could not make an “interim declaration” and believed that he should not make a final declaration at the interlocutory stage. In Cronin, Laffey J granted an order where the “refined, narrow matter” before the court was the provision of money for a programme specific to the plaintiff, limited both in quantum and duration and could have no significant resource or budgetary implications for the Minister.

31. In asserting an entitlement to an order at this stage of the proceedings the applicant relies on the decision of the Supreme Court in Campus Oil Ltd v Minister for Industry and Energy (No. 2) [1983] IR 88. In that case the defendant minister sought a mandatory injunction compelling the plaintiffs to comply with the terms of an order made by him pending the determination of the plaintiffs’ claim that the order in question was unlawful. The plaintiffs resisted on the basis that it was probable that the validity of the order would not be upheld. The case is the leading authority for the proposition that a mandatory injunction may properly be granted where 1) the party seeking it can establish that there is a fair question concerning the right sought to be protected or enforced by the injunction and 2) the circumstances are such that the balance of convenience lies on the side of the granting of the injunction. It is argued on behalf of the applicant in the instant case that there can be no doubt as to either the existence of the right in question or the balance of convenience.

32. On behalf of the respondent Mr. Dignam SC contends as a preliminary argument that the applicant has failed to discharge the burden of proof in that, it is argued, it has not been shown by expert evidence that the current provision of home tuition, as opposed to a school placement, does not accord with her best interests or that it does not constitute an appropriate response to her educational needs. He relies on the principle that mandatory interlocutory injunctions should rarely be granted and invokes the authorities already referred to in relation to the separation of powers. Having regard to the failure of the applicant’s previous placement, he says that it is clear that no placement will succeed without the support of services necessarily supplied by the HSE rather than by these respondents. (This latter proposition is accepted by the applicant, without resiling from the contention that it these respondents who bear the constitutional obligation to ensure that A.’s rights are respected.) The court should not, it said, make an order incapable of fulfilment- the Minister cannot compel a school to accept the applicant (except in the case of an appeal against a refusal to admit a pupil).
Conclusions
33. In my view the respondents are incorrect in the submission that the applicant has not discharged the burden of proof as to the shortcomings of her current educational provision. Apart from the obligation to provide for free primary education, Article 42 of the Constitution requires the State to ensure that children receive “a certain minimum education, moral, intellectual and social”. It is absolutely clear from her father’s evidence, from the psychologist’s report and from her history in school that A.’s social education is gravely deficient. Further, it is clear that the efforts of everyone involved from the field of education have been to find her a school placement. Home tuition, as Mr. Dignam concedes, was only ever meant to be a stop-gap measure, sanctioned on a temporary basis from time to time because A was out of school. I do not believe that evidence is required from an educational expert to establish on the balance of probabilities that home tuition, even with the best of tutors, is not designed to replace the form of social education gained by learning how to get along with one’s peers and other people. If this is not remedied, her future life will be difficult in the extreme.

34. However, it is not possible for me to find that the very high standard for a mandatory interlocutory injunction against these respondents has been met. The passages quoted above from Sinnott and T.D., while supporting a general proposition that in extreme cases such an order may be made, do not assist this applicant since her situation, bad though it undoubtedly is, is not in the class of case envisaged by the Supreme Court as within the definition of “extreme”. There is no element of bad faith, no matter how it might be described. This is not a situation where the rights of A have been consciously and deliberately disregarded or flouted. Notwithstanding the argument made in relation to the burden of proof at the hearing, nobody involved in her case thinks that she should receive only home tuition and efforts continue to be made to find a school. The case on her behalf is effectively made, without those elements, on the basis that she is entitled to a school place, she does not have one and this is having a harmful effect on her development. That does not suffice for an order of the type sought.

35. I also agree with the view of Herbert J expressed in Nagle that a declaration at this stage of proceedings is not appropriate. However, the applicant’s substantive proceedings are at an advanced stage of readiness and I see no reason why a full hearing should not be held in early course.

36. I therefore refuse the relief sought in this application.

Kavanagh v The

Caretaker Government of Ireland & anor

[2020] IEHC 220 (11 May 2020)

EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 11th day of May, 2020

1. On 8th April, 2020 I heard an ex parte application by Mr. David Kavanagh, who acts for himself, for an interim injunction suspending the operation of the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act, 2020. The premise of the application was that the legislation was somehow invalid because no new Government had been appointed following the dissolution of Dáil Éireann on 14th January, 2020 and the general election which was held on 8th February, 2020.

2. On the same day, for the reasons given in a short ex tempore judgment in open court, I refused the application.

3. On 27th April, 2020 Mr. Kavanagh sent to the registrar a form of notice of motion which he proposed to issue, returnable for 29th April, 2020 seeking an order for the release to him of a transcript of the digital audio recording (“DAR”) of the hearing before me on 8th April, 2020. The grounding affidavit sworn in support of the application does not disclose the reason why the transcript is sought but the notice of motion indicates that the transcript is required for the purposes of an appeal. The form of notice of motion was addressed to the Chief State Solicitor, the Registrar of the Supreme Court and unidentified “solicitors for the caretaker Government of Ireland and the President of the Republic of Ireland.”

4. Order 123, r. 9 of the Rules of the Superior Courts allows any party or person who seeks access to any part of a record of proceedings which is held by or for the High Court to apply to the court for such access. The rule provides that any such application should be made by motion on notice to the other party or parties to the proceedings, grounded on an affidavit. Leaving aside the obvious misconception and misdescription in the title to the proceedings, I do not believe that, purposively construed, the rule requires notice to be given to the named defendants in a case where the record concerned is the record of an ex parte application in proceedings which have not been served and of which the named defendants were not on notice.

5. Order 123, r. (9)4 allows the court to permit an applicant to have access to the relevant record where the court considers it necessary in the interests of justice to do so. As the Court of Appeal recently explained in Bank of Ireland v. Gormley [2020] IECA 102, access to the DAR is not automatic or something to which an applicant – even if a party to the proceedings – is entitled as of right. There is an onus on the applicant to give a legitimate reason for the request.

6. The intention of an applicant for access to the DAR to pursue – or perhaps defend – an appeal is, as in this case, frequently the reason given. Mr. Kavanagh has a right of appeal under the Constitution and I am satisfied that it is in the interests of justice that he should have access to the DAR.

7. The application on 8th April, 2020 was made, and my decision given, in open court. In the circumstances it seems to me that nothing would be achieved by requiring Mr. Kavanagh to issue and serve a notice of motion and I am satisfied that the application is one which can properly be dealt with ex parte.

8. By O. 123, r. 9(5), unless the court otherwise directs, access to the relevant record where permitted is to be afforded solely by the provision to the applicant of a transcript, on payment to the transcript writer of the fee for producing the transcript. Mr. Kavanagh asks for the “oral transcripts [DARS]” which I understand to mean a transcript, rather than a copy of the audio recording. If I misunderstand what Mr. Kavanagh seeks and he wished to have the audio recording, I see no reason to depart from the ordinary rule that access is to be afforded by the provision of a transcript.

9. In light of the Covid-19 pandemic and in accordance with the practice direction given by the Chief Justice and the Presidents of each court jurisdiction on 24th March, 2020 a copy of this ruling has been sent to Mr. Kavanagh before being posted on the Courts Service website.

Gormley v Minister for Agriculture, Food and the Marine

[2013] IEHC 459
JUDGMENT of Mr. Justice Hogan delivered on the 14th day of October, 2013
1. This is an application pursuant to O. 44, r. 3 of the Rules of the Superior Courts seeking to leave to issue a motion to commit the Minister for Agriculture, Food and the Marine for contempt of court. The applicants contend that the Minister has breached an undertaking given to this Court on 30th July, 2013, in the course of judicial review proceedings to the effect that no appointments would be made to particular posts then being advertised by the Department.

2. These judicial review proceedings arise in the following way. The applicants are both technical agricultural officers who are employed by the Department in Co. Galway. Both applicants hold a BSc in Rural Development and the second applicant holds a Masters qualification in rural environmental conservation and management. While both applicants were informally advised that their present posts were surplus to requirements in July 2009, they were only formally advised of this by letter dated March 15th, 2011.

3. The Public Service Agreement 2010 – 2014 (“the Croke Park Agreement”) provides for mechanisms whereby surplus staff within a given Department may be deployed within the civil service. Staff so redeployed are generally entitled to priority under the terms of that Agreement save where special skills are required. For various reasons, however, the applicants were not in fact so redeployed.

4. In November 2012 the Department sought applications for seven posts of Assistant Agricultural Inspectors (“AAI”) by way of open competition. The application form required that applicants hold an honours degree in Agricultural Science or its equivalent. Although the applicants maintain that their degree qualifications must be regarded as equivalent for this purpose, they were rejected by letter dated 30th January 2013 on the ground that they did not satisfy “the essential requirements” as outlined in the application form.

5. The applicants were naturally disappointed with this and arranged for their trade union to engage with the Department regarding their status and redeployment. To this end there was much correspondence and several meetings took place between the parties. One practical suggestion which was made was that the Department was holding internal competitions for these positions to which the applicants might also apply. Such a competition was advertised on 12th April, 2013, and interviews for these positions were held on 3rd July, 2013. But for the undertaking tendered in these proceedings, seven candidates would have been selected for the internal competition panel.

6. The applicants had – very understandably from their perspective – applied for these internal posts. They were crestfallen to learn by letter dated 24th June, 2013, that they were again deemed ineligible for these positions. A critical feature of the proceedings is the claim advanced by the applicants that their exclusion from the internal competition on this ground is unfair and arbitrary.

7. While a conciliation conference of this dispute was scheduled before the Labour Relations Committee on 19th August, 2013, nevertheless by mid-July, however, the patience of the applicants was wearing somewhat thin when it transpired that the Minister would not give any assurances regarding the maintenance of the status quo pending the outcome of the conciliation process. The applicants’ solicitor accordingly wrote on 19th July, 2003, in the following terms:

“We are instructed that the Department has not confirmed that it will not take any further step in relation to the [agricultural inspector] competitions. Consequently, our clients apprehend that the Department is continuing to take steps in relation to [these] competitions and that the relevant posts will be filled in advance of the Conciliation Conference scheduled for the 19th August 2013. In the light of that apprehension on the part of our clients, we have been instructed to seek you urgent confirmation that the Department will maintain the status quo, will not take any further step in relation to [these] competitions and will not fill the relevant posts pending the outcome of the LRC conciliation process.”
8. There was no response to this particular request and the present proceedings were accordingly commenced. For the avoidance of any possible doubt, I should, perhaps, make clear that the merits of these judicial review proceedings will have to be determined at a later date.
9. We can now come to the most significant development of all. On the 30th July, 2013, counsel for the Minister gave an undertaking to this Court and it is this undertaking which is said to have been breached. The undertaking was in the terms of paragraph 4 of the applicants’ notice of motion seeking interlocutory relief. By this undertaking the Minister was prevented until 18th September, 2013:

“…from selecting or appointing [a] person or persons to the AAI posts advertised pursuant to the internal competition for such posts advertised on 12th April, 2013, or otherwise.”
10. It is not disputed but that the Minister subsequently appointed three persons from the external competition panel in the period covered by the undertaking. The Minister contends, however, that the undertaking was understood to relate to appointments from the internal panel only, so that the undertaking did not apply to appointments from the external panel.
The position of the Minister for Agriculture and Food
11. While the motion for committal seeks relief against the Minister for Agriculture, Food and the Marine, it quickly became clear during the course of the hearing that it would be inappropriate even to consider granting such relief in the present case, at least in that unqualified form. It is only fair that I should emphasise that the actual present office-holder, Mr. Simon Coveney T.D., had no personal involvement in the appointments made in respect of this competition or in respect of any of the decisions which are the subject matter of these proceedings.

12. It is true that by virtue of s. 2 of the Ministers and Secretaries Act 1924 the Minister is a corporation sole so that he is legally answerable for all the actions of the entire cohort of civil servants working in his Department. It is equally clear that the Minister as an individual member of the Government is responsible to Dáil Eireann (Article 28.4.1) and as a member of that Government must also take collective responsibility “for the Departments of State administered by the members of the Government” (Article 28.4.2). But to a large extent these are legal fictions created by the Constitution and the law to ensure that the executive branch and its civil service will be politically responsible to the Dáil, thus preserving a key element of democratic responsibility. In addition, by deeming the Minister to be a corporation sole, legal continuity is preserved and there is, furthermore, a legal person answerable at law “for a wrongful act done by him as such Minister, or by his orders or direction” : see Carolan v. Minister for Defence [1927] I.R. 62, 69, per Sullivan P.

13. But legal fictions can sometimes hinder precise analysis as well as obscuring real facts. The office holder, Mr. Coveney, knew nothing of these events and the theory of the law makes the Minister responsible only for the purposes of democratic accountability and civil liability. Thus, the Minister could not dispense with his constitutional duty and obligation to account to the Dáil for the actions of his civil servants even though he might have had no personal knowledge of the events. Nor would the Minister’s own personal knowledge be generally relevant to the question of whether the Minister was legally responsible for some wrongful act giving rise to civil liability.

14. But such are the limits of this legal fiction and it can have no real application where it is sought to make the office holder criminally responsible for the actions of his Department. Here it may be recalled that criminal responsibility is normally personal to the individual and as the Supreme Court made clear in Re Article 26 and the Employment Equality Bill 1997 [1997 2 IR 321, 373, per Hamilton C.J., the Oireachtas cannot constitutionally ascribe criminal liability on some imputed or vicarious basis save where the offences are essentially regulatory in nature and are designed to ensure that a licence holder complies with appropriate standards in relation to environmental and consumer protection. It is quite clear that deliberate contempt of court – such as is in effect alleged here – is of a quite different order to the type of technical, regulatory offence contemplated in the Employment Equality Bill reference.

15. Here the applicants freely admit that the Minister had no personal involvement in the filling of the posts. In these circumstances, there could be no question of granting the leave to issue contempt proceedings against the Minister personally. It is, of course, true to say that the rule of law must prevail and the members of the executive are not – and could not be allowed to be – above the law in an appropriate case. But it may be suggested that for the most part a declaration to the effect that the Minister (or his or her officials) have breached a court order will generally suffice and that mechanisms to deploy the remedies of attachment and committal should generally be reserved for the rarest of cases.

16. For all the reasons I have endeavoured to set out, it would be inappropriate to grant leave on the facts of this case either as against the Minister personally or in his corporate persona as a corporation sole.
Whether there was an actual breach of the undertaking
17. It is clear on the evidence that there was a fundamental misunderstanding between the parties. The applicants considered that the undertaking extended to all appointments, whether external or internal. From their perspective this was perfectly understandable given that the undertaking extended to the advertised internal positions, but was also expressed to apply “or otherwise”. They naturally construed the undertaking as extending to all appointments to AAI posts, irrespective of whether the competition was an internal competition or a completely open competition.

18. For their part, however, the officials in the Department had a completely different understanding of the issue. The applicants had not challenged their exclusion from the external competition and, hence, the undertaking was not understood as extending to external competitions as this would have seemed pointless. A further consideration was that the appointment process for the external posts – which was handled by the Public Appointments Commission – was already underway and it was not within the Department’s power to halt this process, at least at this juncture. I think it clear from the evidence that the Department would never have contemplated even giving an undertaking had it been understood that it extended to the appointment of the persons selected from the open external competition.

19. In many ways this case bears a striking similarity to Mespil Ltd v. Capaldi [1986] ILRM 373. In that case both the plaintiff company and a related company had sued the defendants in two separate, but related, proceedings. One of those actions was compromised by a hastily drafted agreement, the terms of which were not fully reduced to writing as between counsel. It later transpired that one of the parties considered the settlement had resolved all the proceedings between the parties, whereas as the other party considered that it was a full and final settlement only of one set of proceedings.

20. In these circumstances the Supreme Court held that the settlement was a nullity by reason of mutual mistake. While fully acknowledging the different context to the undertaking given in these proceedings to this Court, the words of Henchy J. nevertheless have a clear resonance and importance for the present case as well. He first said:

“No blame is to be attributed to the two and able and experienced counsel in question who, in the limited time available to them on the morning of the hearing, sought to achieve a binding settlement in accordance with their respective instructions. But, not having time to reduce the terms of settlement to full and unambiguous written expression, the heads of settlement which they authenticated with their signatures were not sufficiently specific to exclude ambiguity. The result was that the two counsel left court that day, each with a genuine but opposite belief as to what the settlement had achieved.”
21. One may pause here to observe that exactly the same may be said of the present case. The applicants understood that the undertaking extended to both internal and external competitions, whereas the Department understood that the undertaking extended to internal competitions only.
22. Henchy J. went on then to articulate a principle which also has relevance to the present case in as much as the undertaking in the present case was, in effect, a contractual agreement offered to the court:

“It is of the essence of an enforceable simple contract that there be consensus ad idem, expressed in an offer and an acceptance. Such a consensus cannot be said to exist unless there is a correspondence between the offer and the acceptance. If the offer is made by the person in a fundamentally different sense from that which is tendered by the offeror and the circumstances are objectively such as to justify such an acceptance, there cannot be said to be the meeting of minds which is essential for an enforceable contract. In those circumstances the alleged contract is a nullity.”
23. Having articulated this principle, Henchy J. then went on:-
“applying these principles to the present case, it is clear that the form of the written consent, viewed in terms of its wording and of the negotiations leading up to it, was capable of justifying the opinion of counsel for the defendants that the settlement was adequate to cover all outstanding complaints between the parties.”
24. One might also pause here to say that that is certainly true in the present case. Counsel for the applicants could perfectly reasonably have considered the words “or otherwise” to cover not only the situation of the appointment of internal candidates but also the appointment of external candidates by reason of open competition. The position of the other party must, of course, also be considered. On this point, Henchy J., having examined the position of the defendants in Mespil, then said:
“It is also to be said, on an objective consideration of the relevant circumstances, that counsel for the plaintiffs is justified in thinking that the settlement is limited to matters in dispute in the two actions then being settled. In those circumstances of latent ambiguity and mutual misunderstanding it must be held there was no real agreement between the parties. The two counsel who negotiated the settlement were understandably at crossed purposes. The result was that the written agreement expressed in the written consent was in fact no agreement. There was a fundamental misunderstanding as to the basis of the settlement. It is clear the defendants would not have agreed to make the payments required by the settlement if they knew that the plaintiff could seek to oust them from the premises by means of other proceedings. It is equally clear that counsel for the plaintiffs would not have signed the settlement if he knew it would be treated by the defendants as an absolution of them from all complaints by the plaintiffs. Objectively viewed, the situation justified the misapprehension on each side. The result is that, for want of correspondence between offer and acceptance, the unenforceable contract was made. The alleged settlement whether in the interpretation of the plaintiffs or in that of the defendants must be held to be a nullity.”
25. These principles also clearly apply to the present case as well. While just as in Mespil, no blame can be attributed to either party, it is plain that the parties were entirely at cross-purposes so far as the appointment of external candidates is concerned. In these circumstances, applying the principles articulated in Mespil, the undertaking must be adjudged to be a nullity so far as the external competition is concerned.
Conclusions
26. It follows, therefore, that there has been no breach of any unenforceable undertaking in the present case because, for the reasons I have ventured to set out, there was no mutual agreement regarding the scope of the undertaking. The parties were at cross purposes with regard to the scope of their agreement. It follows, accordingly, beyond the commitment not to appoint candidates from the internal competition (on which the parties were in fact agreed and which was in fact honoured), as there was no true understanding so far as any possible wider application to the external competition, the undertaking was rendered a nullity by reference to the Mespil principles.

27. It is only fair to say in conclusion that while neither party are to blame for this misunderstanding, the applicants were also within their rights to object to what occurred. I accordingly propose that this consideration will be reflected, to some degree at least, in any order for costs which I am later called upon to make.

MacDonncha v Minister for Education and Skills

[2013] IEHC 226

JUDGMENT of Mr. Justice Hogan delivered on 29th May, 2013

1. We live in hard and stirring times. Since September, 2008 the State has been grappling with an economic, fiscal and banking crisis of almost unparalleled severity. It is perhaps idle to endeavour to identify the root causes of this crisis, still less to hazard any prediction as to when these acute challenges to the public finances will dissipate. One thing has, however, become painfully clear, namely, that the State has felt itself obliged during this period to examine the continued utility and desirability of almost all items of public expenditure with a view to ensuring that the public finances quickly return to equilibrium.

2. There are, naturally, many views on these wider questions. Some question the desirability of this general exercise and insist that it is economically counter-productive, while others express opposition to the fairness and wisdom of particular public expenditure reductions, stressing that any revenue deficits should be addressed by means of higher taxation. Yet others insist that such retrenchment, however painful, is necessary to restore the economy to health and that the economy has reached the limits of its taxation capacity. No one living in this State or, for that matter, elsewhere in the European Union, can be but aware of these intense debates which have informed and moulded public opinion on these matters both here and elsewhere.

3. These general debates form the backdrop to the present proceedings which, as we shall presently see, concern the re-organisation by the Oireachtas of the vocational educational sector, culminating in the enactment of the Education and Training Boards Act 2013, on 8th May, 2013 (“the 2013 Act”). Yet it is perhaps necessary to stress at the outset that the general wisdom of the policy of fiscal consolidation which the executive and legislative branches have pursued over the last five years or so is not a matter which the courts can question or review. For even if the judicial branch possessed – which it does not – the skill and understanding of a Keynes or a von Hayek or a Friedman or a Krugman in matters of general macroeconomic theory, this would not alter matters in the slightest. This is because questions of the wisdom, efficacy and general fairness of these policies are committed exclusively to the democratic process. Article 5 of the Constitution proclaims the State to be a democracy and this means that questions of general economic policy of this nature are committed to the two branches of government which are ultimately answerable to the People in the electoral process.

4. It is perhaps necessary to re-state these propositions against the background of the present case, because at times arguments were addressed to this Court in the course of argument which seemed more appositely to belong either to the realm of political debate on the one hand or that of the industrial relations process on the other. At the same time, the responsibility and duty of the judicial branch in such matters is clear, namely, to ensure that the Constitution is upheld and the law is applied. Not least when confronted with a plain illegality, the court must not allow itself to be deflected from discharging its judicial duty for reasons of convenience or the acute nature of the fiscal crisis or the siren call of emergency: cf. here the comments of Hardiman J. in Dellway Investments Ltd. v. National Asset Management Agency [2011] IESC 14, [2011] 4 I.R. 1. In cases of such kind, the court must neutrally apply the law, without fear or favour and still less must it dilute or even compromise legal principle by a jurisprudence which itself was distorted by a judicial desire to bring about a result deemed to be convenient or expedient in the public interest.

5. None of this is to suggest that the courts should remain oblivious to economic reality and proceed as if the economic climate were benign. Quite the contrary: the courts can quite properly take account of these unpleasant contemporary realities in assessing, for example, the extent to which an otherwise legitimate expectation has been defeated by an abrupt worsening in the public finances (cf. the judgment of Dunne J. in Curran v. Minister for Education [2009] 4 I.R. 300) or the proportionality of a measure reducing the remuneration of professionals supplying services to the public on behalf of the Government (cf. the judgment of McMahon J. in J.J. Haire & Co. Ltd. v. Minister for Health and Children [2009] IEHC 562, [2010] 2 IR 615). But what the courts cannot do is to turn a blind eye to ultra vires executive and administrative action.

6. As I have just indicated, the re-organisation of the vocational educational sector forms the backdrop to the present proceedings. Both of the applicants have been appointed as Chief Executive Officers of Vocational Educational Committees. Mr. MacDonncha was appointed as CEO of Co. Galway VEC on 16th January 2006 and Dr. Sweeney was appointed CEO of Co. Mayo VEC on 1st September 2006. They are both statutory officers whose offices and entitlements are governed by the terms of the Vocational Educational Acts 1931—2001.

7. There are at present some 33 VECs and reform and restructuring has been in contemplation in official circles for quite some time. The present litigation commenced by the grant of leave of this Court (Ryan J.) on 18th September, 2012 and during this period the Educational and Training Boards Bill 2012, was proceedings through the Oireachtas. Indeed, the Bill was signed by the President and became law on 8th May, 2013, the last day of the hearing in these proceedings.

8. The actual coming into force of the new law, Educational and Training Board Act 2013 (“the 2013 Act”), is made dependent on the making of ministerial orders appointing commencement dates for some or all of the provisions of the Act. When commenced, the 2013 Act will effect a repeal of the Vocational Education Acts 1930-2001 (with the exception of s. 36 of the Vocational Education Act 2001) and the various statutory instruments made thereunder. Critically, the commencement of the 2013 Act will lead to the abolition of the existing 33 VECs and their replacement by 16 new Educational and Training Boards (“ETB”).

9. With this in mind, the Minister for Education and Skills promulgated a Circular No. 24/2012 on 19th June, 2012 (“the 2012 Circular”) which set out the categorisation of the new ETBs “for the purposes of the pay scales applicable to CEOs of these Boards.” The new ETB for the City of Galway, Co. Galway and Co. Roscommon fell into Category II, as did the new ETB for Co. Mayo, Co. Sligo and Co. Leitrim. Paragraph 3 of the Circular stated that this categorisation “will apply from the commencement date of the legislation bringing into force the new Education and Training Boards”.
The Industrial Relations Aspect of the Dispute
10. The Croke Park Agreement (2009)(“CPA”) provided for the re-organisation of the wider public service. In return for assurances regarding the employment security, public sector trade unions agreed to a series of pay cuts and organisational efficiencies. It is only fair to record that these applicants – like so many others in the public service – have already stoically and patriotically accepted the not inconsiderable reductions in their pay in the national interest. It is also appropriate to note that the integrity, diligence and capability of these two applicants is not in any way in doubt. Indeed, counsel for the Minister, Ms. Butler S.C., was at pain to stress this point and with commendable fairness she paid a handsome tribute in open court to the dedication and ability of these two applicants.

11. At a latter point in this judgment I shall revisit the issue of the justiciability of the CPA, but for the moment it suffices to describe the industrial relations aspect of the case. The CPA expressly envisaged that there would be special sectoral agreements in particular areas of the public service. To this end the Department of Education concluded an agreement with SIPTU (the trade union representing the CEOs of the VECs) which provided for a redeployment agreement for the VEC sector: “Arrangements for the Redeployment of those appointed (other than in a temporary acting capacity) in the Grade of Chief Executive Officer of a Vocational Education Committee” (“Arrangements Agreement”).

12. Under the Arrangements Agreement, appointment to the position of the newly created position of CEO of the ETBs was to be determined by seniority and preference. No other criteria were employed. The Arrangements Agreement provided for an elaborate system whereby all existing CEOs were asked to state their first and second preferences and selections was made accordingly.

13. Mr. MacDonncha was assigned his second preference, namely, the CEO for the newly created ETB for Mayo, Sligo and Leitrim. He was not assigned his first preference – namely, Galway – because that has been given to a person deemed to be more senior than him. This assignment is not regarded by Mr. MacDonncha – who lives in Bearna, Co.Galway – as satisfactory because it will enormously increase his travelling and commuting times and he participated in the process only with very considerable reluctance.

14. The position of the second, Dr. Sweeney, is somewhat different. She again participated with some reluctance in this process and gave the position of the CEO for the Mayo, Sligo and Leitrim ETB as her only preference. She did not actually obtain this position – which went to Mr. MacDonncha by reason of his seniority – but she remains in a queue for this purpose, given that she remains automatically in line for designation as a CEO of one of the ETBs should a vacancy arise between now and 2014. Under the terms of the Arrangements Agreement, she remains eligible for other redeployment – perhaps even on a compulsory basis – to another position, although the Minister has stressed that he wishes to respect the individual preferences of each CEO insofar as this can be achieved.
The Transport Liason Officers Allowance
15. An allowance was paid to CEOs known as the Transport Liason Officers Allowance (“TLOA”). While the amount of this allowance varied annually and differed somewhat as between different VECs areas, in recent times the annual amount averaged somewhere between €11,000 and €12,000 in the case of Dr. Sweeney and slightly more than €12,000 in the case of Mr. MacDonncha.

16. It seems clear that the original rationale for the allowance was in recognition of the extra administrative burdens which were placed on the CEOs as a result of the operation of the school transport system. The rationale for the payment of this allowance was probably undermined over time in that, for example, the actual organisation and administration of the scheme – such as dealing with correspondence with parents and schools – seems to have been largely carried out by support staff.

17. At all events, following a review of the TLOA by the Department of Finance (which recommended that the payment would cease for new entrants), the Government decided in 2010 that the role of the TLO would cease and that the responsibility for the administration of the scheme would be transferred to the actual transport providers. The CEOs were informed by the Department of Education that their role as actual Transport Liason Officer would cease as of the end of December, 2011. By way of concession, however, the TLOA payments continued to be paid until June 2012. At that point the payments ceased for all CEOs of VECs.

18. These issues were first referred to the Labour Relations Commission which issued certain proposals both in relation to ETBs and the payment of the TLOA on 28th May, 2012. (While these issues are strictly separate, they were nonetheless heard in tandem for reasons of convenience by the Commission). On 15th August, 2012, the matter of the payment of TLOA was ultimately referred by SIPTU to the Labour Court which, following a hearing in November 2012, ultimately ruled on the matter on 15th January, 2013 (Labour Court Recommendation No. 20448). On this point the Labour Court noted as follows:-

“The Court notes that this is an allowance in the nature of pay and is reckonable in the same way as basic pay for pension purposes. It is further noted that the allowance relates to specific additional duties and the requirement for those in receipt of the allowance to continue performing these duties has ceased. In these circumstances the Court accepts that its elimination is justified. In this case the Department have offered to pay the established compensation formula of 1.5 times the annual loss in the case of each individual affected. The Court recommends that this offer be accepted.”
19. The court went on to state that the abolition of the allowance had implications for pensions purposes and it recommended further that:-
“The parties should enter into central negotiations with a view to reaching a generally applicable agreement on measures by which loss arising from the elimination of pensionable allowances can be ameliorated”
20. The applicants originally sought a variety of reliefs, but in the end the matter reduced itself to three fundamental issues. First, was the purported categorisation contained in the 2012 Circular which was to apply to the new ETBs as and from the commencement of the new legislation lawful? Second, had the Department complied with the terms of the Croke Park Agreement in the manner in which it organised the re-deployment of CEOs and, in any event, did the CPA give rise to enforceable legal rights, whether in contract or legitimate expectations? Third, was the termination of the TLOA allowance lawful? I propose now to consider these issues in turn.
The validity of the 2012 Circular
21. One theme which runs through the affidavits and grounding statement of the applicants is the concern that the Minister might in practice endeavour to establish some form parallel system for the governance of vocational education pending the enactment and entry into force of any new legislation by the Oireachtas and that their existing entitlements qua CEOs of the existing VEC structures might be compromised as a result. A variation of this was a concern that an interim “super CEO” might be created prior to the enactment of such legislation and that such a person would get preferential treatment in the new structures as a result. The legal position is, however, perfectly clear.

22. The applicants hold statutory offices pursuant to legislation already enacted by the Oireachtas. These statutory offices cannot be dismantled or the statutory entitlements of those office holders compromised merely by executive action or by directions given by or behalf of the executive: this can be achieved through legislation alone. Article 28.2 of the Constitution provides:

“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.” (Italics supplied)
23. The exclusive right to legislate is, of course, assigned to the Oireachtas by Article 15.2.1 and is one of those other provisions of the Constitution to which the exercise of the executive power is subject. It follows that it is the right of the Oireachtas alone both to make and to unmake law. One aspect of the executive power is that it is duty of the Government to ensure that these laws are carried into effect and enforced. But the Government enjoys no right to suspend or to disapply the law, for if such a power were to be allowed, it would be tantamount to saying that the Government could in effect secure a repeal of the law without the necessity for legislation. This would plainly violate Article 15.2.1 and, moreover, this Court had already said as much in Duggan v. An Taoiseach [1989] I.L.R.M. 720. In that case Hamilton P. held that a Government instruction to suspend the operation of the Farm Tax Act 1985 was unlawful.
24. None of this means, of course, that the Government cannot plan for or initiate legislative change. Formulating new policy and planning for change (whether legislative or otherwise) is a core business of government and is a central feature of the executive power. Ministers and civil servants have sought to anticipate and plan for legislative change since the formation of the State in 1922 and it would be remarkable to suggest that this could not be done. The process of actually initiating and processing legislation through both Houses is, of course, committed to the two Houses of the Oireachtas by Article 20 of the Constitution and as Maguire C.J. said in Wireless Dealers Association v. Fair Trade Commission, Supreme Court, 14th March, 1956, the courts have no power “to prevent or stay the operation of Article 20.” He added:

“The Constitution…entrusts to the two Houses of the Oireachtas the power and duty of considering and passing Bills which become law on being signed by the President. The consideration of proposed legislation is a matter which it entrusts to the Oireachtas alone, and in which the courts have no part.”
25. All of this means that the courts have no role at all in the lead up to or in the planning of new legislation or in respect of its passage through the Oireachtas. In the present case this meant that, provided, of course, that the Government continued to operate the Vocational Education Acts pending their repeal by the Oireachtas, it was entirely free to plan for the new contingencies which would or might arise following the enactment of new legislation which repealed the old provisions and replaced them with a new structure.
26. Is this what has happened? While the applicants had understandable concerns regarding the new structures and the manner in which the new vacancies might be filled, in the end no steps have actually been taken to compromise their position. Pending the enactment and commencement of the 2013 Act, the applicants remain undisturbed in their posts and the only steps which have been actually taken are in the nature of forward planning. Here again it may be recalled that paragraph 3 of the 2012 Circular – to which the Circular the applicants took exception – nonetheless critically stated that the categorisation of the ETBs and the new salary scales applicable to them “will apply from the commencement date of the legislation bringing into force the new Education and Training Boards.”

27. In these circumstances, I find myself unpersuaded by the contention that the respondents have taken any actual steps to compromise the legal entitlements of the applicants as statutory officeholders prior to the enactment of the new legislation or that the 2012 Circular is unlawful in any way.
Whether the Department had complied with the terms of the Croke Park Agreement in the manner in which it organised the re-deployment of the VEC CEOs and the termination of the TLOA?
28. Both applicants object strenuously to the manner in which the redeployment scheme has been organised by the Minister and they contend that the respondents have breached specific terms of the Croke Park Agreement (“CPA”) in the manner in which the re-deployment of the CEOs has been organised.

29. The Minister contends in turn that the Arrangements Agreement (which, let us recall, is but a sectoral agreement within the CPA process) binds the applicants, in that Clause 7.4.1 provides that:

“The Arrangements shall commence on the date on which agreement is reached with SIPTU or on the date where a determination is provided by the Labour Court on any matters of dispute in relation to it.”
30. The Minister submits that this clause is intended to ensure that the Labour Court decision is binding. Indeed, this is one of the reasons why it is said the applicants cannot litigate the validity of the TLOA allowances in these proceedings, given that – or so the argument runs – the matter is effectively res judicata in the light of the Labour Court’s decision. To this one might add that paragraph 1.24 of CPA expressly states that the outcome of any industrial relations process – involving, for example, the Labour Relations Commission or the Labour Court – “will be final.”
31. Finally, it may be noted that in its recommendation the Labour Court noted that the matter had come before it pursuant to the CPA and that “the parties have agreed to be bound by the Court’s recommendation.”

32. For my part, however, I see no reason to alter the views which I expounded at greater length in Holland v. Athlone Institute of Technology [2011] IEHC 414, [2012] ELR 1 regarding the legal status of the CPA. In that judgment I stressed that the whole tenor of CPA was that it was an agreement designed to operate in the political and industrial relations spheres. Everything therein suggested that it was not intended to create legal relations, not least through its use of imprecise and aspirational language and the creation of particular dispute resolutions mechanisms (paragraphs 1.18 to 1.22 of the CPA) which plainly operate outside the conventional legal sphere.

33. As I said in Holland:

“For my part, I do not consider that the Agreement can be taken to have created enforceable legal rights which are justiciable in law at the hands of an individual public sector employee. The commitment given by the Government with regard to public sector redundancies in paragraph 1.6 thus applies in the sphere of political and industrial relations sphere, but not the legal sphere. The proviso to that commitment (“This commitment is subject to compliance with the terms of this Agreement and, in particular, to the agreed flexibility on redeployment being delivered…”) would seem to be at odds with the idea of an enforceable legal right, since it would be extremely difficult for a court to apply legal standards to determine whether, for example, the public sector unions had been sufficiently flexible on redeployment issues. This would seem to be a matter of judgment for either politicians or industrial relations specialists. This in itself demonstrates that the parties never intended thereby to create legal rights, or, at least, that the Agreement was not intended to be enforceable at the hands of third parties such as the plaintiff.”
34. Accordingly, the reference to “finality” of the industrial relations process – which, in the present case, culminated in the Labour Court recommendation of January 15th, 2013 – is to “finality” in the industrial relations sense of that term. It means no more than that the Government and the public sector have agreed a mechanism inter se whereby disputes arising from the CPA can be resolved. Accordingly, the CPA does not seek to vest the Labour Court recommendation with a legal status it would not otherwise enjoy.
35. Here it may also be noted that the Labour Court assumed jurisdiction under s. 26(1) of the Industrial Relations Act 1990 (albeit in the context of the dispute resolution procedures envisaged by the CPA) and that it merely issued a recommendation. The whole purpose of the Labour Court’s functions in matters of this nature is to advance a solution to industrial relations disputes. Although the Court’s functions are sometimes clothed in the language of law (e.g., the very use of the term “Court”) and while it employs legal principles when adjudicating on matters relating to legal rights (such as, for example, cases involving the rights of part-time workers or employees on fixed term contracts), in the present context it is really acting as a form of industrial relations mediator. When adjudicating on matters relating to the CPA, therefore, the Labour Court is accordingly not deciding legal rights or employing exclusively legal concepts to resolve such disputes. On the contrary, when issuing recommendations in this context the Court will often – perfectly properly – adopt a purely pragmatic and practical approach to such questions. Its role in such cases is to resolve disputes and to maintain industrial peace and the criteria which underpin its recommendations are not strictly legal ones.

36. In summary, therefore, the recommendation of the Labour Court at most amounts to a binding resolution of any such dispute for industrial relations purposes. While the decision to terminate the TLOA was one which was (probably) taken outside of the strict confines of the CPA, it cannot be said that the use of the CPA dispute resolution procedures (such as, in this instance, the reference to the Labour Court) rendered the outcome binding or final for legal purposes. This is not only because the Court’s jurisdiction under s. 21 of the Industrial Relations Act 1990 is not invested with that quality of legal finality, but also because for all the reasons set out in Holland the CPA itself does not create – and was not intended to create – legally justiciable rights.

37. It follows, therefore, that the Labour Court recommendation does not create res judicata nor does it preclude the applicants from applying to this Court for declarations as to the legality of the withdrawal of the TLOA allowance. Before considering this latter issue, we must, however, next address the issue of legitimate expectations and the CPA.
Legitimate expectations and the CPA
38. Both the applicants stress that the new arrangements transgress specific commitments contained in CPA with regard to redeployment and that in that respect the Department has violated legitimate expectations which they had acquired as a result of the terms of the CPA. One may give a number of examples of specific provisions of CPA on which the applicants relied.

39. Paragraph 1.6 of CPA provides:

“The Government gives a commitment that compulsory redundancy will not apply within the public service, save where existing exit provisions apply. This commitment is subject to compliance with the terms of this Agreement and, in particular, to the agreed flexibility on redeployment being delivered.”
40. The applicants maintain that the Minister violated Paragraph 1.6 by stating that the role of the TLO is redundant. In this regard, I rather think that the applicants have sought to read too much into this commitment. It was not a commitment that no post would be abolished, but it was instead rather a commitment that no person would be made redundant from the wider public sector. This construction of Paragraph 1.6 is underscored by the redeployment provisions contained in Paragraph 6.2.1 et seq., because these obviously involve the abolition of certain positions and duties. Why else would the CPA make such elaborate provision for redeployment?
41. Nor do I think that other specific commitments have been violated. Thus, for example, Paragraph 6.2.1 provides:

“These procedures [regarding redeployment in the education sector] will be implemented in an open and transparent manner with full regard to the need for consultation with individuals and the representative Trade Unions.”
42. It is quite clear that there has indeed been consultation with relevant trade unions, since the Arrangements Agreement was conducted with SIPTU in October 2011. The Arrangements Agreement further endeavours – admittedly subject to seniority – to respect individual preference. All CEOs were, after all, invited to give their preferences for the new ETB assignments. Furthermore, Paragraphs 5.2.1 of the Arrangements Agreement provides for elective deployment in the education sector at an analogous grade for which the individual has the necessary skills, qualifications and competence. In these circumstances, I find it difficult to say that provision is not made for at least some consultation before an individual is redeployed.
43. So far as Paragraph 6.2.8.iii is concerned, I cannot see that the Arrangements Agreement does not faithfully reflect it:

“Where there are no or insufficient volunteers, management will be able to require staff to redeploy. Selection will be made in accordance with the ‘last in, first out’ principle (LIFO). Seniority in the context of LIFO is defined as the most senior in terms of pensionable service within the grade, save where different arrangements exist for the determination of seniority.”
44. While it is true that Paragraph 6.2.8.iii refers to “volunteers”, this simply corresponds to the exercise of choice of those wishing to redeploy. Under the Arrangements Agreement, all existing CEOs were effectively asked to volunteer to transfer to the new positions (described by Paragraph 3.2.1 of the Arrangements Agreement as “elective assignment”) from which selection would then be made on a seniority basis. (The seniority list had itself been assembled in advance on a transparent basis under the terms of the Arrangements Agreement). In effect, therefore, Arrangements Agreement assigned the new positions in accordance with volunteered preferences which were then governed by seniority.
45. Objection is also taken that the respondents failed to comply with the assurances promised by Paragraphs 6.2.13 and 6.2.14 to the effect that:

“Where staff are being redeployed to another organisation in accordance with these principles, they will be assigned to a post within a 45km radius of their current work location or home address, whichever is the shorter commute. Regard will also be had to reasonable daily commute time. Given that Public Service organisations and posts are fewer in number and more dispersed in some parts of the country than in others, redeployment options may of necessity be beyond these guidelines times and distances in some instances. In these circumstances, consultations will take place with the relevant employee(s) and union(s) in relation to the assignment(s) on offer.”
46. It is clear that Mr. MacDonncha has been redeployed far beyond the 45km radius (in that he now has responsibility for Mayo, Sligo and Leitrim, instead of the county of Galway), but here it is envisaged by Paragraph 6.2.14 that this may occur. There has, moreover, been some consultation with both individuals and unions in relation to the redeployment options in that the former were consulted regarding their preferences and the latter were involved in the Arrangements Agreement, even if it must also be accepted that none of these deployment options can be regarded as very appealing from the Mr. MacDonncha’s point of view.
47. There is, in any event, a more fundamental objection to all of the applicants’ arguments based on legitimate expectations, whether by reference to Paragraph 1.6 or any of the other specific commitments contained in the CPA on which the applicants have relied.. Paragraph 1.6 is admittedly at the heart of the CPA with its commitment regarding compulsory redundancies. But that commitment is immediately qualified by the statement that this is subject “to compliance with the terms of this Agreement and, in particular, to the agreed flexibility being delivered.”

48. These very qualifications are inconsistent with the existence of any legitimate expectation, because as I pointed out in Holland, the language used “is too imprecise, conditional and aspirational to permit of this.” Critically, however, the rest of the commitments in the CPA are predicated on the delivery of such change and flexibility One might add that the nature of the commitment does not lend itself to judicial evaluation by reference to cognisable legal standards. As I pointed out in Holland, in the context of whether the CPA created legally enforceable rights (which passage I have already quoted above), how could a court determine, for examine, whether the public sector unions had been “sufficiently flexible” in respect of redeployment issues? Yet as the entire CPA is premised on this and must be read subject to these basic qualifications, it follows that none of the CPA’s provisions can give rise to a legitimate expectation.
The validity of the termination of the TLOA
49. If I may re-echo the sentiments I expressed at the commencement of this judgment, the validity of the termination of the TLOA so far as these proceedings must be governed entirely by legal considerations only. To that extent, considerations which would be very much to the fore in industrial relations bargaining or in any conciliation process before the Labour Relations Commission have no direct bearing on any of the legal issues which come before me. Thus, counsel for the applicants, Mr. Stewart S.C., emphasised that the Department of Finance review had originally recommended that these allowances be abolished for new entrants only. Ms. Butler S.C. countered by noting that as the applicants were no longer performing the duties of TLOs, they should not receive any supplementary pay for this purpose.

50. It was further emphasised that this matter was considered by the Labour Court and in its determination in January 2013 it had recommended a formula – which was accepted by the Department – that the CEOs receive a once-off compensation payment for the abolition of the allowances and, furthermore, that some protection for the associated pension entitlements would also be given. Under this formula, Mr. MacDonncha’s pension entitlement would be almost completely unaffected by the new regime, albeit that this was not quite so in the case of Dr. Sweeney, save in the event that she were to retire within the next seven years. I should pause to explain that the reason for this apparent discrepancy is that Mr. MacDonncha is closer to retirement age than Dr. Sweeney. It should also be recalled that the Labout Court recommendation called for further negotiations between the parties regarding the pensionability of the allowance in respect of persons such as Dr. Sweeney whose pension entitlements are affected by the abolition of the TLOA.

51. Yet the answer in legal terms is absolutely straightforward. Section 15(6) of the Vocational Education Committee (Amendment) Act 2001 (“the 2001 Act”) provides:

“A chief executive officer shall hold office upon and subject to such terms and conditions (including terms and conditions relating to remuneration and allowances) as may be determined by the vocational education committee for which he or she is chief executive officer with the consent of the Minister.”
52. The allowances to which the CEO is entitled are determined by the local vocational education committee. It is, of course, true that the Minister must consent to the relevant employment terms, including such remuneration and allowances. But the sub-section unambiguously assigns the role of determining the terms and conditions of the CEOs to the local VECs. This inevitably includes all decisions regarding any variations concerning the conditions of employment, including the termination of allowances.
53. Yet no evidence has been supplied to show that any decision to terminate the allowance was taken by the relevant VECs (namely, Co. Galway and Co. Mayo respectively). Quite the contrary: it is instead clear that the decision was taken by the Minister for Education. But as is clear from the express terms of s. 15(6) of the 2001 Act, the Minister has absolutely no role in terminating the allowances or otherwise varying the terms and conditions of employment of the CEOs. It is thus plain that the purported termination of the allowances by the Minister was unlawful.
Conclusions
54. It remain only to sum up my principal conclusions:

A. The applicants hold statutory offices whose operation cannot be terminated or suspended by executive action alone. But while the Government cannot suspend the operation of law, it can plan for future legislative changes.
B. Pending the enactment and commencement of the 2013 Act, the applicants remain undisturbed in their posts and the only steps which have been actually taken are in the nature of forward planning. Paragraph 3 of the 2012 Circular critically stated that the categorisation of the ETBs and the new salary scales applicable to them “will apply from the commencement date of the legislation bringing into force the new Education and Training Boards.” In these circumstances, the 2012 Circular cannot be held to be unlawful as a form of executive attempt to circumvent the legislative regime which obtained immediately before the coming into force of the 2013 Act.

C. The Minister has not violated the terms of the CPA in the manner in which the redeployment of VEC CEOs has been organised. In any event, for the reasons set out more fully above, the terms of the CPA itself cannot give rise to a legitimate expectation because the entire agreement is predicated on the existence of sufficient flexibility and a commitment to change on the part of the employee side and these are criteria which are beyond the capacity of the judicial branch usefully to evaluate.

D. By virtue of s. 15(6) of the 2001 Act the payment of allowances is to be determined by the Vocational Education Committee themselves and the Minister’s role is simply to consent to such payment. The Minister is, however, given no power to terminate such payments in the manner in which he purported to do so and the revocation of such payments in June 2012 by the Minister must accordingly be judged to be unlawful.

55. For completeness, I should stress that this judgment addresses the situation only with regard to the situation which obtains immediately prior to the coming into force of the 2013 Act. Any arguments which might conceivably arise with regard to the operation of the 2013 Act would, of course, have to be addressed in separate proceedings.

The Executive

Cases

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Callely -v- Moylan & ors

Riordan v. An Tánaiste

Howard and Ors v Commissioners of Public Works in Ireland and Ors (No. 2)

McD (a minor) v Minister for Education & Skills

Caretaker Government of Ireland & anor

Gormley v Minister for Agriculture, Food and the Marine

MacDonncha v Minister for Education and Skills

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