The Irish Constitution clearly sets out the three distinct powers of Government: The legislature (the Oireachtas), the executive (the Cabinet), and the judiciary.
Those entities exist separately but do on occasion interact.
As yesterday’s Supreme Court judgment in the Angela Kerins vs members of the public accounts committee (PAC) case states: “The real issues which arise in the context of separation of powers concern questions relating to the boundaries between the respective powers.”
Since 2011, when the public voted down the referendum proposal to give Oireachtas committees the power to make adverse findings against individuals, there has been an ongoing battle as to where the lines of demarcation lie.
Along with Ms Kerins, the businessman Denis O’Brien has also sought to defend his name against comments made by TDs under privilege.
The significant partial judgment of the country’s top court in favour of Ms Kerins has potentially profound implications for politicians seeking to exercise their powers in the public interest.
The judgment in the original High Court case concluded: “For upwards of four centuries it has been recognised in common law jurisdictions throughout the world that the courts exercise no function in relation to speech in parliament. This is fundamental to the separation of powers and is a cornerstone of constitutional democracy. The Constitution guarantees freedom of speech in parliament, not to protect parliamentarians, but the democratic process itself. The constitutional order requires that speech in parliament remain unfettered by considerations such as jurisdiction. If members of either House were constrained in their speech in the manner contended for by the applicant, the effective functioning of parliament would be impaired in a manner expressly forbidden in absolute terms by the Constitution.”
The Supreme Court found the PAC was “acting very significantly outside of its remit” and therefore acted unlawfully. Crucially, while recognising the privileges and immunities of the Oireachtas are extensive, the Supreme Court concluded they are not absolute and in some cases an individual has the right to take a case against the Dáil or one of its committees.
The court, in its judgment, chastised the failure of the Oireachtas to offer suitable remedies to those who feel they are unfairly treated by one of its committees and yesterday’s partial judgment will only galvanise calls for greater restrictions to be placed on such committees.
No one can defend a committee which repeatedly defied its clearly defined remit, but the PAC has been the forum where many public scandals have been unearthed and forensically probed. CervicalCheck, the ‘Grace’ foster abuse scandal, and the saga of the Garda Training College in Templemore are a few which spring to mind from the past couple of years. In truth, the PAC, at its best, should be a thorn in the side of the powers that be.
Given how successful it has been in making life uncomfortable for those on high, the PAC has been on the radar of the establishment for some time. An establishment which desperately wants to clip its wings.
The PAC and the Oireachtas must rightly take stock of the Supreme Court’s initial findings, but reducing the powers of the Dáil’s most important committee is not the solution.