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Supreme Court told that judges have no power to decide if Dáil privilege is being used correctly

Denis O’Brien’s legal team has argued that TDs’ “extraordinary privilege” had led to a breach of his privacy in 2015.

Good Friday Agreement Source: PA Wire/PA Images

TODAY, THE SUPREME Court heard that the courts don’t have power to review whether Dáil privilege was being abused by elected representatives.

Businessman Denis O’Brien is appealing the ruling of a High Court case that dismissed his claims that his privacy was breached by two TDs in the Dáil in 2015.

Yesterday, the seven-judge Supreme Court heard Senior Counsel Michael Cush argue that the “extraordinary privilege” TDs have led to a breach of O’Brien’s property and privacy.

Sinn Féin’s Pearse Doherty and the Social Democrats’ Catherine Murphy gave statements to the Dáil during a 2015 debate about the sale of Siteserv in relation to O’Brien’s banking information.

O’Brien had taken an injunction against RTÉ to prevent them from broadcasting that same information, and had to drop that action as a result.

Because of Dáil privilege, those statements were seen to be protected from legal action. But O’Brien is contesting this, arguing that it was an abuse of that power as there was “no evidence” that Murphy had made her statements in good faith.

Today’s arguments

Today the Supreme Court questioned Michael Collins SC, who is representing the Oireachtas, about what powers the courts have in relation to Dáil privilege, which is a slight exemption from law that allows TDs to raise certain issues in the Dáil without fear of legal action.

The Committee on Procedure and Privilege reviewed a complaint by O’Brien that the deputies’ statements were inappropriate, and found that they weren’t a breach of privilege.

But judges asked today that if it’s not an outright breach of privilege, could it be an abuse of privilege, as it infringed on a court proceeding.

“There’s a court order at the heart of what happened here. A person had an order and the entire [point of the] order was lost because of what the deputies did,” one judge said.

“He has a complaint, brought it to the only body with power to deal with it, and Mr O’Brien says they didn’t deal with the questions asked.”

O’Brien’s legal team said yesterday that they don’t want the courts to sanction deputies, as they don’t have that power, but instead want to use the courts to put pressure on the Oireachtas Committee to ensure deputies who breach or abuse Dáil privilege are sanctioned in the future.

But Collins argued today that the courts don’t have the power to review what’s said in the Dáil in relation to privilege.

Judge: Are we allowed look at the statements made by Deputy Murphy and Deputy Doherty?
Collins: Not for the purpose of deciding was there a breach of privilege.
Judge: We can’t look at correspondence to see if the committee dealt with issue of privilege? …We can’t decide if it’s done its job?
 Collins: Precisely.

He said that if the committee made an error in this case or any other case, that wasn’t a matter for the court to handle or review, and it’s a fact for which there is no remedy.

One judge asked if the courts see that the Oireachtas isn’t handling reviews of Dáil privilege correctly, do they have the power to step in.

Using an analogy of watching weeds grow in a neighbour’s garden, she asked “what is to happen” if the Oireachtas’ Committee of Procedures and Privilege was seen to be too limited in its powers.

A member of the Oireachtas could be paid to injure a person’s privacy or reputation, she said, asking what was to happen in that case when the body that deals with reviews (the Committee) says it doesn’t have the powers to look at that question.

Collins replied that if the weeds were seen to be “growing into the house”, then that would be a cause for concern, but “that’s a long way away from where we are here”.

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