The Supreme Court has unanimously dismissed Denis O’Brien’s appeal over statements made by two TDs in the Dáil about his banking affairs.
Any interference by the courts in how an Oireachtas committee had dealt with Mr O’Brien’s complaint over the TDs’ actions is impermissible under the Constitution, the seven-judge court ruled.
That was so because it would amount to an “indirect and collateral” interference by the courts with statements made in the Oireachtas which are protected by Article 15, which confers privilege on parliamentary speech, it said.
The only practical consequence of a successful outcome for Mr O’Brien in this appeal would be to direct a reconsideration by the Committee on Procedures and Privileges (CPP) of its decision on his complaint, the Chief Justice, Mr Justice Frank Clarke, noted.
If that reconsideration lead to a different result, a court would have been, at least indirectly or collaterally, involved in dealing with statements made in the Houses, he said.
“Such a course of action is impermissible under the Constitution.”
A decision on liability for substantial costs of the case in the High and Supreme Court, which could exceed €1 million, will be made after the sides have had time to consider the judgment.
When delivering the court’s judgment today at NUI Galway, the Chief Justice said it had intended to deliver the judgment last week on the same day of its judgment on an appeal by former Rehab CEO Angela Kerins as both cases raised some similar issues.
However, for reasons unconnected with the issues in both cases, the court had considered it was desirable to defer the judgment, he said.
Mr O’Brien’s lawyers had applied for a delay because his separate defamation case against the Sunday Business Post, which also raised issues about the privacy of his banking affairs, was still underway at the time of the Kerins judgment.
Mr O’Brien’s Supreme Court appeal arose from statements separately made in the Dáil by Social Democrats TD Catherine Murphy and Sinn Fein TD Pearse Doherty in May and June 2015.
He complained those made pointless an injunction he had obtained against RTE some weeks earlier restraining it broadcasting details of his banking relationship with State-owned Irish Bank Resolution Corporation.
He went to the High Court after the CPP rejected his complaints about the TDs actions.
The High Court’s Ms Justice Una N Raifeartaigh dismissed his case, brought against the CPP, the Dáil and the State, for reasons including the reliefs sought were impermissible under the constitutional separation of powers and would have a “chilling” effect on the freedom of parliamentary speech.
The core issue before the Supreme Court was whether the courts can intervene when an Oireachtas committee allegedly fails to obey its own rules.
A “correct” application by the Oireachtas of its own rules concerning what is said in parliament would involve chilling “inappropriate” but not “appropriate” speech, it was argued on behalf of Mr O’Brien.
Giving the court’s judgment, the Chief Justice said there were similarities but also important differences between this and the Kerins case.
In the Kerins case, the court found her complaints over how the Dáil Public Accounts Committee dealt with her were justiciable, meaning a court can consider them, and also held the PAC acted outside its remit. It has adjourned to later a decision on whether the PAC acted unlawfully.
The Chief Justice said the judgment on Mr O’Brien’s appeal related only to how his complaint was dealt with by the CPP.
There may well be an argument the CPP was “in error in some ways” in which it dealt with the complaint, he said.
While the CPP was “clearly correct” in saying it had no role in determining if anyone was in contempt of court as that would itself breach the separation of powers , there may well have been an issue, which the CPP did not address, whether it was appropriate for deputies to act in a way which might be said to have substantially deprived a citizen of the benefit of a court order protecting their right to privacy.
It might also be said the CPP “over-readily” came to the view, without sufficient inquiry, those concerned has acted in good faith.
The CPP, he stressed, has a “significant margin of appreciation” in deciding whether the constitutionally recognised principle of freedom of speech within the Oireachtas outweighed any other relevant considerations, he said.
Even if it could be said the CPP reached an “impermissible” conclusion on the complaint, that would fall “a very long way short” of demonstrating the sort of “egregious or persistent” failure to vindicate the rights of a citizen which might allow the courts to intervene.
A decision on whether the courts can intervene in such circumstances would have to be decided in an appropriate case, he stressed.
The court, in the Kerins judgment, had identified significant barriers to the justiciability of issues arising from matters which occur within the Houses of the Oireachtas.
Article 15 of the Constitution confers “significant privileges and immunities” from legal action on the Houses and their members. By including those measures, the people undoubtedly created an area where any rights which may allegedly be infringed can only be protected by the Oireachtas and not by the courts, he said.
The court confirmed its view expressed in Kerins that, included in the matters immune from review by the courts, are questions which relate “indirectly or collaterally” to “utterances” made in the Houses, he said.
The challenge Mr O’Brien sought to bring to the CPP decision involved, in substance, an “indirect or collateral” challenge to the utterances of the Deputies themselves, he said.
Any exception to the general rule against non-justiciability could only apply in the case of either an “egregious” beach by the Oireachtas of its obligation to protect the rights of citizens in respect of matters which occurred within the Houses or a “persistent failure” to deal with matters in a way from which it might legitimately be inferred the Oireachtas did not intend to afford appropriate protection to citizens.
Neither of those situations could be said to exist on the facts of this case, he said.
The court would leave over to another case a decision on whether in fact such an exception exists, he added.
Update: 10.30 - Reacting to the ruling, Sinn Féin TD Pearse Doherty said he was "over the moon" with the decision.
Common sense prevails.— Pearse Doherty (@PearseDoherty) March 5, 2019
Update: - Catherine Murphy said: "Whilst I am pleased that the courts have recognised the constitutional protections afforded to those of us who may find ourselves in the position of having to use parliamentary privilege for a matter of public interest, it is hugely incumbent on us, as elected representatives, to recognise that such privilege must only be exercised with great responsibility.
"The public interest must always be to the fore and that is what has underpinned everything I have done to date."