The Supreme Court on 20 December 2005 allowed an appeal by the sole member of the Tribunal of Inquiry into complaints concerning some Gardaí in the Donegal Division and refused the relief Brendan Howlin had obtained in the High Court. The High Court had quashed a February 2003 discovery order seeking records from Howlin and eircom. The Supreme Court substituted an order refusing Howlin’s judicial review application; it did not make a new discovery order.
The case concerned telephone, fax and mobile phone records sought by the tribunal as part of its inquiry into allegations passed to Howlin in June 2000. Howlin had told the Minister for Justice and Garda investigators that he had received information alleging serious misconduct, including that evidence had been planted and that an internal Garda inquiry had been compromised. He said he had no evidence to substantiate the allegations and refused to identify his sources.
The tribunal said its investigations had not established a factual basis for the allegations, but were not exhaustive. It considered it necessary to identify and interview the source to establish whether there was information that could support or disprove them. In February 2003, it ordered discovery of specified records from Howlin and eircom. Howlin challenged the order, relying on constitutional protections for members of the Oireachtas and claiming common law privilege.
Justice Hardiman, delivering the Supreme Court judgment, held that Article 15.10 gives the House of the Oireachtas, or a lawful delegate, the power to protect members’ private papers. The power belongs to the House or its delegate, not to an individual deputy acting alone. To protect papers against a lawful demand for production, the committee had to make an express and specific decision identifying the papers and addressing the demand.
The committee’s February 2002 resolution authorised a parliamentary legal adviser to instruct counsel to make submissions about parliamentary powers and privileges. The Supreme Court held that this did not expressly protect Howlin’s papers or identify the documents covered. The court therefore found that the committee had not validly exercised its Article 15.10 power in this case.
The court agreed that Articles 15.12 and 15.13 did not apply to the facts established. On the common law claim, it found no basis to regard the tribunal member’s approach as legally unsound and rejected the argument that an “innocence at stake” exception could apply only at a criminal trial. The appeal succeeded and the High Court relief was refused.