Law clear on Dáil privilege, says State

Denis O’Brien has no constitutional right to “personal satisfaction” by having the courts declare some “impropriety” by two TDs in making Dáil statements about his banking affairs, counsel for a Dáil committee has told the High Court.

There is “no constitutional right to satisfaction” and there would be “appalling consequences” if the courts sought to examine or restrain statements made in the Dáil, Michael Collins said.

The Constitution made “absolutely clear” that Dáil statements, including by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty, about Mr O’Brien’s banking affairs, cannot be examined by any court except the “court of public opinion”.

Mr O’Brien was essentially inviting the court to find some “impropriety” in the statements made but that “cannot be done”.

Article 15 states the only entity that can examine Dáil statements is the Oireachtas and that was done as the Dáil Committee on Procedure and Privileges (CPP) had heard, and dismissed, Mr O’Brien’s complaints about the statements, he said.

The constitutional, “and only”, remedy for an alleged gross abuse of privilege in statements on the floor of the Dáil was the House itself and the court was not “a second court of appeal” for someone dissatisfied with the outcome before the committee.

Mr O’Brien was alleging a right to have the committee’s functions carried out in a particular way but there was no constitutional right to achieve satisfaction by seeing someone else being sanctioned “in the way you want”. There was also “no constitutional right to achieve some personal satisfaction by having your position approved of”.

Mr Collins, for the CPP, was continuing his arguments opposing Mr O’Brien’s action alleging that the two TDs “clearly disregarded” the constitutional separation of powers between parliament and the courts in their statements.

In his case against the CPP and the State, Mr O’Brien wants the court to declare the statements amounted to “unwarranted interference” in the judicial domain. He claims the committee failed to “properly police” the TDs over their statements, made in May and June 2015 when he had ongoing High Court proceedings against RTÉ seeking to restrain it publishing details of his banking relationship with IBRC.

In his submissions, Mr Collins said Article 15 conferred “express immunity” on Dáil statements and the walls set up by the Constitution “to repel judicial invaders” contained “nothing fuzzy or imprecise”.

The Constitution recognised TDs must have “certainty” about what they can speak about and cannot operate under a shadow of uncertainty and possible court scrutiny. That was why Article 15 provided an absolute “ouster”.

The declarations being sought by Mr O’Brien, including that the statements amounted to “unwarranted interference in the judicial domain, “cannot be made” because they would make the TDs “amenable” to the court in breach of Article 15, counsel argued.

“That cannot be done.”

The case resumes on Tuesday.

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