Challenging immunity of TDs in Constitution a difficult case to make

The appearance of Denis O’Brien as a witness in his own case on Thursday served as a platform for the arguments to be made against him.

O’Brien is the only witness in the case. His evidence came before counsel for the State began their submissions, but gave them an opportunity to voice points they will rely on.

In many instances, O’Brien had to agree with propositions they put to him that serve to illustrate the difficulties facing the case he is making.

Although it was his choice to enter the witness box, O’Brien spent the bulk of the one hour and 20 minutes he was there being cross-examined. His own senior counsel was finished with him after about five minutes.

Constitutional matters

The case before the court involves constitutional matters of a high order, and is being made largely by way of legal submission. This is usual in such proceedings. It is difficult, from a legal point of view, to see what the point was in O’Brien giving evidence at all.

A stark point emerged during questioning by Maurice Collins SC, for the State and the Attorney General. Collins pointed to the fact that – as stated by O'Brien's own senior counsel Michael Cush – the case being taken by O'Brien did not depend on the fact that a temporary injunction had been granted by the High Court at the time when TDs Catherine Murphy and Pearse Doherty spoke in the Dáil about O'Brien's private banking affairs.

O’Brien had already conceded that, despite his referring to the two TDs “breaching” the High Court order that aspects of his banking affairs should not be disclosed, the politicians were not, in fact, subject to the order.They could not have been because they were members of the Oireachtas.

So, Collins put it to the wealthy businessman, the fact that O’Brien had merely issued the writ seeking the gag on disclosure of his private banking details should, according to the businessman, be enough to justify the case he is now taking where, as he has accepted, he wants the Oireachtas to be censured because of what was said in the Dáil.

O’Brien said he understood the point being made.

Such a scenario, Collins said, would “greatly restrict Dáil speech”.

Yes, replied O’Brien.

Asked if he wanted the outcome of the case to be that there would be a restriction on speech during Dáil debates in the future, O’Brien said he wanted that the situation he had faced – where he had secured a High Court order preventing publication of his private banking affairs but the TDs nevertheless disclosed those matters – would not have to be faced by others in the future.

In questioning from Michael Collins SC, for the Oireachtas, it was put to O’Brien that he was asking the court to examine debates in the Dáil, the consideration by a Dáil committee of those debates, and the consideration by the committee of O’Brien’s complaints, which it had rejected.

O’Brien agreed this was the case.

Issue some sort of reproof

He also agreed that what he wanted was for the court to issue some sort of reproof or censure of the Dáil, and the Dáil committee.

Article 15.13 of the Constitution says that members of the Oireachtas cannot be held “amenable” for comments in the Oireachtas by “any court or any authority other than the House itself”.

The State is now making its legal submissions and at times referring to O’Brien’s testimony as it does so. Collins has referred to previous High Court and Supreme Court rulings on article 15.13, which, he said, illustrate the powerful “immunity” it provides to members of the Oireachtas. If a TD said something in the Dáil that caused a murder trial to collapse, he said, the immunity would still hold. “The line is drawn in neon light terms in the Constitution itself.”

As for the argument that the Constitution cannot be used to undermine the separation of powers, he said it brought to mind Ross O’Carroll Kelly saying: “The Constitution is unconstitutional.”