Correct application of Dail privilege would chill 'inappropriate' speech: Lawyer for Denis O'Brien

By Ann O'Loughlin

A correct application by the Oireachtas of its own rules concerning what is said in parliament would involve chilling “inappropriate” speech, a lawyer for businessman Denis O’Brien has told the Supreme Court.

Appropriate speech is speech that respects the constitutional separation of powers between the legislature and the courts but inappropriate speech does not respect that, Michael Cush SC said.

The Oireachtas’ Committee on Procedure and Privileges (CPP) failed to obey its own rules when dismissing Mr O’Brien’s complaints about statements by two TDs in the Dail about his banking affairs, he said.

Denis O'Brien

There was no evidence on which the Committee could have decided Social Democrats TD Catherine Murphy and Sinn Fein TD Pearse Doherty acted in good faith and responsibly when they made the statements after Mr O’Brien had got an injunction against RTE restraining it publishing material concerning his banking relationship with IBRC.

Because the Committee failed to obey its own rules in how it dismissed the businessman’s complaint, the courts can step in to ensure vindication of the rights of a non member of the Oireachtas such as Mr O’Brien, he argued. Seeking to have the Oireachtas obey its own rules could not be regarded as “chilling” the free speech and parliamentary debate protected by Article 15 of the Constitution.

A seven judge court is hearing Mr O’Brien’s appeal against the High Court’s dismissal of his case against the Oireachtas and State over the statements made by the two TDS in May and June 2015.

The businessman claims the statements, made after he got injunctions against RTE on April 30th 2015 restraining it publishing details of his banking affairs with State-owned IBRC, amounted to “unwarranted interference” in the judicial domain because they revealed most of the information subject of the injunction and made his court action pointless.

When dismissing his case in 2016, the High Court's Ms Justice Una Ni Raifeartaigh said what Mr O'Brien sought was prohibited by the separation of powers and would have a "chilling effect" on parliamentary speech.

Irrespective of the existence of court proceedings, or how damaging what the TDs said, Article 15 confers immunity from legal proceedings on "utterances" made in the Dail and on the member who makes them and meant the court could not intervene in relation to how the CPP dismissed Mr O'Brien's complaint, she found.

The focus of Mr O’Brien’s appeal is on the decision the courts cannot intervene in the CPP finding the TDs had not breached the relevant Dail standing orders in how it addressed Mr O’Brien’s complaint.

Today Mr Cush argued the constitutional rights of Mr O’Brien were clearly and deliberately damaged by what was said by both TDs. The rights affected included Mr O’Brien’s property rights and right of access to the courts and to have his case against RTE decided without parliamentary interference.

At least one rule governing what is said in the Houses is intended to protect the rights of citizens like Mr O’Brien who are not members of the Houses against unwarranted interference by Oireachtas members in court proceedings, counsel argued.

That rule provided Deputies should try and avoid, as far as possible, prejudicial comment on matters before the courts. Members may also give notice to the Ceann Comhairle of certain utterances they intend make and the Ceann Comhairle can give guidance in that regard.

Neither TD gave notice of what they intended to say under the “extraordinary privilege” available to them and the Supreme Court should declare the CPP’s finding was based on erroneous interpretation of the standing orders.

The “real test” whether the courts can intervene in an Oireachtas Committee's decision is whether that directly affects persons outside the Houses and the High Court applied the wrong test in that regard and had also not properly assessed the issue of “amenability” within the meaning of Article 15. 5, he argued.

There is a distinction between a court hearing evidence about what was said in parliament and its effect and making people “amenable” for what was said. Mr O’Brien’s complaint was being adjudicated on by the CPP and his interests as a non-member were precisely what the relevant standing order sought to protect.

Beginning arguments for the Oireachtas, Michael Collins SC said various points had now been dropped by Mr O’Brien’s side and the key issue now seemed to be whether the CPP erred in its interpretation of standing orders.

It was important to note the High Court injunction obtained by Mr O’Brien against RTE was never intended to apply to the TDs and there was no breach by them of the court order, he stressed.

The CPP exercises the powers of the Dail itself to render TDs amenable to the Dail and the court cannot intervene with that function which is an “integral part” of the legislative process. The CPP was exercising a function under Article 15.13 in seeing should the TDs be made amenable and had not infringed any constitutional right of Mr O’Brien’s, he argued.

The appeal, listed for two days, continues tomorrow.

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