(SCC0041)

Written evidence submitted by the Ireland Houses of the Oireachtas

1. What powers do investigative committees in your Parliament have to summon witnesses and call for the production of documents? Are these powers set out in legislation or in standing orders? The committees of the Oireachtas have the power to compel witnesses and the production of documents. These powers are set out in both legislation and Standing Orders which are engaged depending on the type of witness appearing before the committee.

There are effectively 3 categories of witness that can appear before Oireachtas committees: (i) voluntary witnesses, (ii) accountable witnesses, and (iii) compelled witnesses. Voluntary witnesses come before the committees pursuant to the Standing Orders, as the ordinary procedures of invitation are followed in this instance.

Accountable witnesses are persons who are legally accountable to the Oireachtas committees pursuant to legislation, for example accounting officers1 who are accountable to the Committee of Public Accounts. Accountable witnesses come before the committees based upon their obligations pursuant to the legislation governing the office they hold and the Standing Orders, as they too are appearing before the committees voluntarily, albeit that they are fulfilling a legislative requirement.

The final category of compelled witnesses come before the committees on a legislative footing as exercising a power of compellability pursuant to Standing Orders alone would not, in this jurisdiction, be legally enforceable.

In general, any person in the State, any Irish citizen outside the State, or any person in an Irish registered vessel or aircraft or on an Irish diplomatic mission outside the State may be compelled2.

A committee engaged in the usual or ordinary business of that committee (‘other committee business’) can only seek to send for “persons, papers and records” where they have been given the power to do so in their Terms of Reference. Currently, only two committees have this power in their Terms of Reference: the Committee of Public Accounts3 and the Committee on Budgetary Oversight4.

1 An Accounting Officer is the person to whom the duty of preparing the appropriation accounts of a Department is assigned pursuant to section 22 of the Exchequer and Audit Departments Act, 1866, and generally speaking, will be the Secretary General of the Department, or the Head of the Department. 2 Exceptions exist in certain circumstances for the President, an officer of the President, Judges, the Master of the High Court, the Attorney General, an officer of the Attorney General, the DPP, an officer of the DPP and persons entitled to diplomatic immunity. See section 83 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 3 See Standing Order 186(4). (SCC0041)

Where a committee has been conferred with such powers, the committee must then seek the consent, in writing, of the Committee on Procedure and Privileges (“the CPP”) to exercise them5. The CPP may give such consent generally or in any particular case6. Any consent may be given subject to such conditions and directions as are specified by the CPP at the time the consent is given7. Once the Oireachtas Committee obtains the requisite consent it may give the “compellability direction” to the relevant persons in line with the procedural rules set out in the Standing Orders8.

Any committee may also seek to run a ‘Part 2 Inquiry’, which is a statutory inquiry pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 that allows the committee to make certain defined findings of fact. Part 2 of the 2013 Act provides for the following types of inquiry: a) Inquire, Record and Report Inquiry9 b) Inquiry relating to the exercise of any one or more legislative functions including whether there is a need for new legislation10 c) Inquiry into the Removal of Certain Officeholders as provided for in the Constitution or in other legislation11 d) Inquiry relating to the Conduct of a Member of either House of the Oireachtas12 e) Inquiry to Hold the Government to Account13 A point of distinction between each type of inquiry is the character of the findings which the committee conducting the inquiry may make. A paragraph (a) inquiry is limited to recording and reporting evidence and making findings of uncontested fact or findings of relevant misbehaviour (i.e. non-cooperation with the Inquiry), where the terms of reference for the inquiry expressly provide for that power. The other inquiries allow for contested fact- finding, including findings of relevant misbehaviour against public office holders, where the terms of reference for the inquiry expressly provide for that power.

A committee conducting a Part 2 Inquiry must have the power to send for persons, papers and records conferred on it by the Oireachtas14. The Oireachtas determines the extent of the power and can impose conditions on the exercise of the power15. A Committee conducting a Part 2 Inquiry cannot exercise its compellability powers until the time for receipt of the person’s submissions has expired and it has taken into account the submissions (if any) given by the person16.

4 See Standing Order 186A(4). 5 See sections 76 and 77 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, together with Standing Order 119. 6 Section 77 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 7 Section 2(4)(b) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 8 Standing Order 97. 9 Section 7 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 10 Section 8 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 11 Section 9 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 12 Section 10 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 13 Section 11 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 14 Section 66 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, together with Standing Order 136. 15 Section 66 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. (SCC0041)

A witness that has been compelled may be directed to attend before the committee on a date and at a time and place to give evidence and/or to provide any document in their possession or control17. A witness can also be directed to make discovery on oath of any documents that are or have been in their possession or control relating to any matter relevant to the proceedings of the committee and to specify in the affidavit of documents concerned any documents mentioned therein which they object to producing to the committee and the grounds for the objection18. A witness may be directed to make a statement in writing on the matters on which they are required to give evidence19. Committees also have an overarching power to give any other directions that appear just and reasonable20.

2. Are there any recent examples from your Parliament of contempts relating to investigative committees, including non-compliance of witnesses summoned to appear before a Committee? We have recently had dealings with non-compliance of witnesses appearing before committees. However, in both instances neither witness was compelled to attend.

Kerins v McGuinness & ors (2019)21 The Public Accounts Committee is a committee of Dáil Éireann established by the Standing Orders22 of which the defendant and others were members. The PAC has the power under the Standing Orders to send for persons, papers and records23. Ms. Kerins, the plaintiff, was the Chief Executive Officer of the Rehab Group (“Rehab”) from December 2006 until her resignation in April 2014. While the income of Rehab is derived from a number of sources, some of which derive from public funds, it was at all times an independent entity operating in the private sector and Ms. Kerins was a private sector employee.

On the 27th February 2014, Ms. Kerins appeared before the PAC, having been invited to do so on the 18th February 2014. Ms. Kerins' attendance was voluntary. Her appearance before the PAC lasted for seven hours with one short break and she was subjected to heavy questioning and criticism from the Committee.

16 Section 26(3) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 17 Section 67(1)(a) and (b) for Part 2 Inquiries and section 83(1)(a) and (b) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 18 Section 67(1)(c) for Part 2 Inquiries and section 83(1)(c) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 19 Section 67(1)(d) for Part 2 Inquiries and s.83(1)(d) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 20 Section 67(1)(e) for Part 2 Inquiries and s.83(1)(e) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 21 Kerins v McGuinness & Ors. [2019] IESC 11 (“the first judgment”) and Kerins v McGuinness & Ors. [2019] IESC 42 (“the second judgment”). 22 It is also defined in s. 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 as “the committee of Dáil Éireann established under the rules and standing orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General”. 23 Standing Order 218. (SCC0041)

Following this hearing, Ms. Kerins says that she suffered from shock, stress and anxiety. She further detailed that she had been hospitalised from the 2nd March 2014 to the 11th March and on the 14th March attempted to take her own life. On the 13th March 2014, the PAC wrote to Ms. Kerins requesting her attendance before the Committee on the 10th April 2014. On the 2nd April 2014, Ms. Kerins resigned from her position as CEO of Rehab.

On the 10th April 2014, the PAC proceeded with its scheduled meeting. Ms. Kerins was not in attendance, but she was again heavily criticised by the PAC. The PAC subsequently applied to the Committee on Procedure and Privileges (“CPP”) seeking compellability powers, but on the 16th July 2014, the CPP issued its decision refusing to grant such powers.

Ms. Kerins brought a claim against the PAC seeking declaratory reliefs to the effect that the PAC lacked jurisdiction to undertake the examination described in the proceedings; the examination undertaken by the PAC was tainted by bias of individual members of the Committee; an order seeking to remove from the record of the PAC any reference to Ms. Kerins; and a declaration that the procedures adopted by the PAC were unfair rendering the proceedings unlawful. She also made a claim for damages.

The Supreme Court 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 light of the fact that the Court had found that: (1) The PAC was acting significantly outside its terms of reference and that the CPP had come to that view; and

(2) The PAC was acting significantly outside of its remit;

(3) PAC had invited Ms Kerins to attend before it on one basis but had proceeded, when she attended, to deal with her on an entirely different basis.

The Court also found 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 of which complaint was made.

In reaching its decision the Supreme Court made the following key findings:

1) 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. This clarifies the law in that, prior to this, while committees had obviously enjoyed privilege pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, it had not been clearly established that they enjoyed the same privileges and immunities as the Oireachtas under the Constitution. The Court has also confirmed that the privilege attaches to utterances of non-members before committees. (SCC0041)

2) It is permissible for a Court to receive and consider evidence of what was said at a meeting of a committee, such as the Public Accounts Committee (“PAC”), for the purpose of determining in what actions the committee was engaged. Consideration of such evidence—which obviously includes transcripts of hearings—does not infringe the privileges conferred by Article 15 of the Constitution.

3) While the privileges and immunities of the Oireachtas are extensive, these privileges and immunities 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 this regard, the Court stated “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”.

4) Proceedings cannot properly be brought which either would: (a) involve the Court breaching the privileges and immunities expressly set out in Article 15 of the Constitution or in acting in a manner which would invoke a jurisdiction in respect of matters closely connected with those privileges and immunities; or (b) otherwise amount to an inappropriate breach of the separation of powers. The Court also held that: “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”, but rather it would be necessary to assess whether judicial intervention was appropriate “in the circumstances of an individual case”.

5) What requires to be assessed, before a Court can intervene in accordance with point 4, is the actions of a committee as a whole and not a consideration of individual utterances of members of the committee concerned. A Court will intervene where the unfair conduct and order of the hearing represents the actions of the Committee as a whole, rather than an individual member. The Oireachtas can specify, in its rules and orders, the way in which business is to be conducted and, in particular, the role and powers of the Chair of any committee “to ensure the committee concerned operates properly within the scope both of its remit and of any invitation issued to an attending citizen”. The Oireachtas can control this; both the rules and ensuring observance of the rules. It is clear that the role of the Chair will be of particular importance, and the extent to which the Chair seeks to impose appropriate limitations on the actions of the committee will be a relevant factor for consideration. On the facts of this case, the Court was persuaded by the particular facts arising, most notably, the finding of the CPP that the PAC had exceeded its remit and the complaint that the Oireachtas had not provided a remedy to Ms Kerins. (SCC0041)

6) 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. In this respect: (a) 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 (b) 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”.

7) It follows from this that the Oireachtas has a number of obligations, including 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 freedom of speech within the Houses guaranteed by Article 15.10 and protecting the Oireachtas from any inappropriate interference with its entitlement to carry out its constitutional role. The Court also noted that it is arguable that there is a constitutional obligation on the Oireachtas to put in place appropriate mechanisms to remedy any wrong done.

8) 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. A Court will find a Committee acted unlawfully if it departs significantly from the terms of the invitation to the witness.

9) A Court will find a Committee acted unlawfully if it acts “significantly outside its terms of reference”. This is capable of being remedied by the Houses, as the terms of reference can be adjusted by the Oireachtas “in whatever way it considers appropriate” as long as those terms of reference remain within the constitutional remit of the Houses. The Court suggests that a mechanism could be put in place which would allow for quick and efficient changes.

Ms. Kerins claim for damages in relation to alleged breaches to her constitutional rights, her right to a good name and misfeasance in public office will now be heard before the High Court, in the second module of the case.

Mr. John Delaney’s appearance before the Joint Committee for Transport, Tourism and Sport On the 10th April 2019 the Board of the Football Association of Ireland (the FAI) appeared before the Oireachtas Joint Committee for Transport, Tourism and Sport to respond to the Committee’s requests for information about corporate governance structures and a loan made to the association by former CEO John Delaney. The CEO of Sport Ireland was also requested to attend the meeting, as an accounting officer, to discuss the level of funding it had granted to the FAI. (SCC0041)

Sports Ireland is a public body established under statute to govern the development of sport in Ireland and is funded through public monies. The Football Association of Ireland is the governing body of soccer in Ireland and a private company. The income of the FAI is derived from a number of sources, some of which derive from public funds. Its CEO, Mr. John Delaney, was a private sector employee. The Joint Committee had no compellability powers nor did they seek any.

The Committee was within remit in calling upon Sports Ireland to answer questions about the exercise of its statutory functions, which would include its provision of money to the FAI, as well as the criteria upon which this money was granted and the controls that it has in place. The Committee was also within remit to enquire into the governance controls and procedures that were in place to ensure that monies granted were appropriately spent and accounted for.

Given that the Committee had invited the FAI to the meeting to seek information about its corporate governance structures and a loan made to the association, this line of questioning towards the FAI was also permissible. However, there were at that time matters at large in public discussion about Mr Delaney which neither the FAI nor Sports Ireland could be reasonably or properly expected to comment, and which the Committee would not be within remit to investigate.

Mr. Delaney provided the Committee with an opening statement which he read aloud at the meeting. Mr. Delaney thereafter refused to expand upon his opening statement or to take questions on any financial matters due to his own legal advice. Please find a link to the official recording of the meeting of 10th April 2019.

There were a number of internal and external investigations held in relation to the FAI and its corporate governance procedures, including criminal investigations, subsequent to the Committee meeting. Mr. Delaney resigned from his position in the FAI on the 28th September 2019.

3. What sanctions are available to your Parliament in cases of non-compliance or other contempts on the part of witnesses? When a committee is exercising a power of compulsion pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, a failure to comply with a direction of a Committee may amount to an offence. In summary, the following amount to offences under the Act: a) If you have been directed to attend to give evidence, failing without reasonable excuse to comply with that direction where you have had certain expenses tendered to you in advance24; b) If you have been directed to attend to give evidence, refusing to take the oath or answer a question to which the Committee is entitled by law to an answer25;

24 Section 75(1)(a) for Part 2 Inquiries and s.90(1)(a) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. (SCC0041)

c) Failing without reasonable excuse to comply with a direction under section 67(1)(b) to (e) for Part 2 Inquiries or section 83(1)(b) to (e) for Other Committee Business26; d) Doing anything in relation to the Committee proceedings which, if done in relation to Court proceedings, would amount to contempt27; e) Giving false evidence to the Committee, which, if given in Court, would amount to perjury28 . It may also amount to a criminal offence to fail to comply with a court order. A court order may arise in the context of Committee proceedings if, for example, a person fails to comply with a direction of the Committee and the Committee obtains a court order requiring the person to comply with its direction29.

A prosecution for any of the offences outlined above pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 may be brought only by or with the consent in writing of the Director of Public Prosecutions30. A summary offence under this Act may be prosecuted by the Oireachtas Commission31 acting with the consent in writing of the Director of Public Prosecutions32. These provisions are, at the date of writing, untested.

A person found guilty of any of these offences may be subject, on summary conviction, to a fine up to €5,000 or imprisonment for a term not exceeding 6 months, or both, or on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years, or both.

In addition, if a person fails, without reasonable excuse, to comply with any direction from a Part 2 Inquiry Committee, this may have consequences in relation to legal costs or expenses33 .

25 Section 75(1)(b) for Part 2 Inquiries and s.90(1)(b) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 26 Section 75(1)(c) for Part 2 Inquiries and s.90(1)(c) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 27 Section 75(1)(d) for Part 2 Inquiries and s.90(1)(d) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 28 Section 75(2) for Part 2 Inquiries and section 90(2) for Other Committee Business of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. In relation to Other Committee Business only, where the Committee is exercising compellability powers, section 82 also provides an offence for providing false or misleading information knowingly or recklessly. 29 Section 99 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. Note in sections 75(4) and 90(4) it provides that if you have been sanctioned for failing to comply with an order under section 99 you cannot also be sanctioned under sections 75(2) or 90(2), or vice versa. 30 Section 125(1) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 31 The Oireachtas Commission was established in 2004 as a body corporate that is the governing body which oversees the delivery of services to the Houses of the Oireachtas, their Members and members of the public by the Houses of the Oireachtas Service. It is independent in the performance of its functions and has no role in relation to parliamentary business or procedure. 32 Section 125(2) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 33 See sections 48(1)(a) and 55(1)(a) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. (SCC0041)

Outside of the exercise of a statutory power of compulsion, committees have no power to sanction a non-compliant witness.

Voluntary witnesses are free to leave a committee session at any stage. Witnesses are entitled to expect that a committee will question them on the broad areas which are set out in the invitation to appear. The Supreme court in the Kerins case stated, however, that witnesses are free to answer questions which go beyond the witness invitation. Implicit in this is the corollary that witnesses are also entitled to refuse to answer such questions.

The other category of accountable witnesses, being those witnesses who have a statutory obligation pursuant to legislation to account to an Oireachtas committee, cannot be sanctioned by a committee if the witness is uncooperative. Such persons would potentially face disciplinary action over their failure to fulfil their statutory duties based on the terms and conditions of their employment. Furthermore, as these accountable persons are accountable under statute, it also means that they are appointed under statute by the relevant Minister and may ultimately be removed from that office by the Minister or the Board34. The position in relation to the Secretary General of a Department, who is the ‘accounting officer’ for their Department, is similar. Each head of a Department is appointed by the Government, on the recommendation of the Ministerial head of the Department, thus dismissal of a Secretary General is a matter for the Government35. Again, depending on the circumstances, it could be open to the relevant Committee to seek to pursue a ‘Part 2 Inquiry’, outlined above, to remove such an officeholder36.

4. What rules and guidelines do you have to ensure witnesses and potential witnesses before select committees are treated with fairness and due respect?

Procedural advice is continually provided to the Chair of a Committee by the Clerk to the Committee, either in advance or during a Committee meeting in relation to the treatment of a witness by members.

The Houses of the Oireachtas Service provides a Witness Protocol to witnesses who are invited to appear (Protocol for persons giving evidence to Committees of the Houses of the Oireachtas) and for witnesses who are compelled to appear (Guidelines For Witnesses And Other Persons On Compellability) in advance of their appearance. These links are to the current protocols in use, however, these documents are currently under review by a Working Group established in 2019 to review the procedures of the Houses and, in particular, their Standing Orders following the Supreme Court judgment in Kerins v McGuinness and Ors37.

34 See for example section 13(2) of the Residential Institutions Statutory Fund Act 2012 and section 29(7) of the National Cultural Institutions Act, 1997. 35 It is only in rare cases that a Secretary General has been dismissed. One such case is that of DJ O'Donovan in 1951; O'Toole and Dooney, Irish Government Today, 3rd edn (Dublin: Gill and Macmillan, 2009), p.170. 36 Section 11 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013. 37 Kerins v McGuinness & Ors. [2019] IESC 11 (“the first judgment”) and Kerins v McGuinness & Ors. [2019] IESC 42 (“the second judgment”). (SCC0041)

The Working Group was required to consider a broad range of issues in relation to House and Committee procedures, oversight mechanisms, citizens’ rights and remedies and sanctions, and the role of the Houses of the Oireachtas Service, and to report with recommendations to procedural committees on the changes to the Standing Orders of both Houses of the Oireachtas, and any other related actions, which are considered necessary in order to respond to the Supreme Court judgments.

Arising out of the Working Group’s review, changes to the Standing Orders have been proposed to address the following four key areas which were highlighted by the Court as requiring a response by the Houses of the Oireachtas:

a. Oversight of Committee remit A new committee will be established to ensure that committees remain within their remit during proceedings. This Committee will also review requests from committees to extend their terms of reference.

b. Role of the Committee Chair The Chair will be responsible under the Standing orders for their committee complying with the Standing orders and for the orderly and fair conduct of their committee’s proceedings. Under the new Standing Orders, the Chair will make rulings dealing with disorder.

c. Remedies for persons adversely affected by parliamentary utterances A person will now be able to raise a matter of order at first instance with the Chair of a committee if they are unhappy with the conduct of proceedings. If in the aftermath of their attendance they believe they were adversely affected by the proceedings, they may make a complaint and a detailed complaints mechanism for witnesses is now provided for.

d. Sanctions: Dealing with disorder A member may be suspended from either House, including any committees, where they breach privilege, are grossly disorderly or disregard the authority of the Chair. On the first occasion, a member may be suspended for 2 sitting days. On the second occasion, a member may be suspended for 4 days and on the third occasion a member may be suspended for 8 days.

It is hoped that these proposed standing orders will be agreed by both Houses before the Christmas recess and we will then be in a position to send a copy you of our updated procedures. (SCC0041)

5. What is your assessment of the effectiveness of your Parliament’s powers and sanctions to deal with contempts? Sanctioning one of its own38

In this jurisdiction, Article 15.10 of the Irish Constitution provides that each House has the power to makes its own rules and Standing Orders, with the power to attach penalties for their infringement. These penalties are provided for, in the main, in Standing Orders and the Houses have a wide margin of appreciation in terms of how it carries out this power. The relevant sanctions range from censure, to the House excluding a member from both that House, and any committee of that House, for a number of days. There are no pecuniary sanctions provided for in Standing Orders. There is, however, a pecuniary sanction in the form of withholding of salary, provided for in Ethics legislation where, following a finding by the relevant committee that a member has breached the provisions of the legislation, the member’s salary can be withheld for a stated period39.

Whilst our written Constitutional provisions provide for the exclusive right of Parliament to discipline its own members, judicial oversight of the exercise of this power was explicitly referred to in the Supreme court case of Callely40. In this case, an Oireachtas committee was disciplining one of its own pursuant to the relevant ethics legislation (the dispute centred on members’ expenses). As the committee was exercising a statutory power of inquiry, judicial oversight followed on foot of the particular member issuing proceedings as against the committee.

The effectiveness of sanctioning non-members

The vast majority of Oireachtas committee hearings are conducted solely pursuant to Standing Orders. In practise, it is only when a Committee is seeking to exercise powers of compulsion that it invokes its statutory powers. Whilst our written Constitution provides for the exclusive cognisance of Parliament, and provides members and witnesses with absolute privilege for their utterances in parliament, the Kerins case proved that judicial oversight of the exercise by Parliament of its functions can occur when Parliament is engaging with non- members or strangers. It is for that reason that the Oireachtas has now provided, in a meaningful way, for fair procedures for non-members. The range of Standing Orders introduced include, for example, a complaint mechanism for a non-member who believes they have been adversely affected by the actions of a committee, a process whereby a committee can apply to another supervisory committee to quickly change its Terms of Reference to allow it conduct a specific inquiry, and references to the role of a Chair of a committee to balance the rights of members with those of witnesses.

Whilst these new provisions have not yet been tested, it is our belief that judicial oversight of Parliament will be, if any, minimal into the future. The Supreme court in Kerins stated

38 In this response paper, the sanctioning by Parliament of its own members is not addressed in detail. However, should further information be required, please let us know and same can be provided. 39 See Ethics in Public Office Act 1995 as amended by the Standards in Public Office Act 2001. 40 Callely v Moylan & Ors [2014] IESC 26 (SCC0041)

that once Parliament had provided for the rights of non-members, the Court would afford Parliament a wide margin of appreciation in how it conducts its business. The court stated: “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. If the Oireachtas provides some means of controlling the unlawful activities of its own committees then that fact would weight 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 pe=properly constituted body within the Oireachtas charged with providing a remedy for unlawful actions occurring with the Oireachtas itself. ”

The statutory powers of sanction, referred to in section 3 above, are, untested. The fact, however, that such sanctions exist is, perhaps, effective in and of itself, in that compelled witnesses are absolutely clear on the repercussions of non-compliance by them with a committee direction. Indeed, we are of the view that witnesses, as a matter of basic fair procedure, are entitled to know how they are to engage with Parliament, and the legal consequences for unlawfully refusing.

Overall, the effectiveness of the Irish system is that Parliament, itself, determines the ‘mode’ within which it is going to engage with witnesses. For most committee proceedings, Parliament’s power is that as set out in Standing Orders. Witnesses’ rights are fully recognised and provided for in these same Standing Orders and witnesses are therefore fully informed as to how their engagement with Parliament is going to be conducted. When a witness is refusing to engage, Parliament has the option to invoke its statutory powers. Similarly, when this power is invoked, compelled witnesses are absolutely clear from the statutory provisions as to how this power is to be exercised and the statutory sanctions that can befall them for a refusal to cooperate.

This dual approach of enhanced Standing Orders, providing clarity on witness rights, together with a statutory and legally enforceable power of compulsion, enables Oireachtas committees to engage with witnesses in a fair and balanced manner.

Mellissa English, Chief Parliamentary Legal Adviser.

Elaine Gunn, Parliamentary Services Division.

04 Dec 2020