Complainant

Respondent

Anonymised Parties

A Complainant

A Senator

Representatives

Sinéad Fitzpatrick, Solicitor of The Office of Parliamentary Legal Advisers

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00042555-001

19/01/2021

The complainant states that he has been discriminated against by a person, organisation, company who provides goods, services or facilities. Specifically, he brings a complaint on the grounds of disability against a member of the Houses of the Oireachtas, in their capacity as a member of the Oireachtas Joint Health Committee.

The complaint is made against the respondent in their capacity as a Member of the Oireachtas Joint Health Committee. They serve on this Committee because they are a member of the Houses of the Oireachtas, in this case as a Senator.

The complainant relies upon the Equal Status Acts to ground his complaint against the respondent who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of disability.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

( d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;”

The Office of Parliamentary Legal Advisers made a submission in relation to the claim. They submit that Article 15 confers a wide scope of privilege and immunity on the Houses and their Committees. The Supreme Court most recently reaffirmed this in Kerins v McGuinness [2019], which stated;

“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 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.”

The respondent submits as set out by the Supreme Court in Kerins v McGuinness has held that the courts can only intervene to set aside parliamentary immunity where there has been a “significant and unremedied unlawful action on the part of a committee”

And proceedings cannot be properly brought if 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 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”

Furthermore, in Niese and Baron-Niese v. An Bord Pleanála (DEC-S2015-012) the Equality Tribunal considered whether judicial immunity could apply to statutory bodies (in this case An Bord Pleanála) exercising an adjudicative function. The Equality Officer found that judicial immunity extended to statutory decision-making bodies and that as a result the Equality Tribunal was compelled to decline jurisdiction.

The respondent says the complaint is made “in relation to matters that concern the legitimate constitutional business of an Oireachtas Committee.” And “The Committees of the Houses of the Oireachtas have the same constitutional privileges and immunities as the Oireachtas.”

Section 22 of the Equal Status Act 2000 as amended provides that the Director of the Workplace Relations Commission “may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.” The claim in this case relates to the legitimate constitutional business of the Oireachtas, specifically an Oireachtas Committee. It is clear from the Constitution and the Supreme Court case cited by the respondent that the business of the Oireachtas is immune from suit. Therefore, this claim is misconceived as it is incapable of achieving the desired outcome and is not a service as defined under the Act.  I find that I have no jurisdiction to investigate this complaint and I dismiss the complaint in accordance with Section 22 of the Equal Status Acts.

This complaint relying upon the Equal Status Acts to bring an action against a member of the Houses of the Oireachtas arising from the business of the Oireachtas is not properly before me. Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss the claim and determine that I have no jurisdiction to investigate and adjudicate on the matter.

Claim dismissed misconceived – not a service – Oireachtas immunity – No Jurisdiction