State argues court decision in favour of O’Brien ‘destructive’ of parliamentary speech

Businessman Denis O'Brien wants the Supreme Court to make findings that would be "entirely destructive" of, and "effectively undermine", parliamentary speech, the State has argued before the court.

Maurice Collins SC said Mr O’Brien has brought proceedings arising out of utterances in the Dáil about his banking affairs by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty that would indirectly substitute the courts instead of the Dáil as the arbiter of “appropriate or inappropriate” parliamentary speech.

The proceedings were brought over the manner in which the Dáil Committee on Procedure and Privilege (CPP) handled and dismissed Mr O’Brien’s complaint over the TDs’ statements, made in May and June 2015, he said.

The statements were made after Mr O'Brien got injunctions against RTÉ restrainig it publishing information about his banking affairs with State owned IBRC. The CPP is an agent, and made up of, members of the Oireachtas, he said.

Article 15 of the Constitution, which immunises parliamentary speech from legal action, means any decision of the committee cannot be challenged in court.

All decisions by the CPP are “non-justiciable” and any attempt to have its findings reviewed by a court breaches the separation of powers.

In his submissions on behalf of the CPP, Michael Collins SC said any finding that the committee’s decisions could be the subject of court actions meant any protection it had under Article 15 was “wholly illusionary”.

In bringing his proceedings over the CPP decision, Mr O’Brien was seeking to have the two TD’s sanctioned for their statements, he argued.

In replying arguments for Mr O’Brien, Eileen Barrington SC said the State respondents were making “a stark case” which her client, who was directly affected by “an abuse of privilege”, rejected.

Counsel were making submissions on the second and final day of Mr O’Brien’s appeal against the High Court’s dismissal of his case against the Oireachtas and the State over the statements made by the two TDs.

Chief Justice Mr Justice Frank Clarke said the seven-judge court was reserving judgment. It may take some time before the court is in a position to deliver judgment, he added.

In his appeal, Mr O’Brien claims the CPP failed to obey its own rules when dismissing his complaints about the TDs’ statements and finding there was no breach of the relevant Oireachtas standing orders. The courts are entitled to step in to ensure vindication of the constitutional rights of a non-member of the Oireachtas, he claims.

There was no evidence for the CPP finding that the TDs acted in good faith and responsibly when they made the statements, he claims. The statements, he contends, amounted to unwarranted interference in the judicial domain.

The TDs’ statements had revealed most of the information subject of the injunction against RTÉ, which made the court proceedings pointless, he has argued. His appeal is against the High Court 2016 judgment of Ms Justice Una Ní Raifeartaigh dismissing his action.

The judge said what he sought was not allowed due to the separation of powers and would have a chilling effect on parliamentary speech.