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Ordinary people - and not judges - should police our politicians' powerful privilege

For our parliament to work, there must be freedom for representatives to speak without fear of legal consequences, writes David Kenny.

David Kenny Assistant Professor of Law, Trinity College Dublin

LAST FRIDAY, DENIS O’Brien lost a High Court case in which he claimed that the Dáil Committee on Privilege and Procedure (CPP) – which has responsibility for overseeing the use of privilege by members of Dáil Éireann – had failed to vindicate his constitutional rights.

This outcome was not surprising, but it was significant.

O’Brien’s constitutional challenge sought to overturn some of the foundational principles of the constitutional order. Had he prevailed, it would have radically changed the relationship between courts and the Oireachtas.

Slim chance of victory

However, it was always going to be an uphill struggle for the plaintiff as few areas of constitutional law are more clear than the one he took aim at. The courts are very slow to get involved in policing the internal workings of the Houses of the Oireachtas, and the constitutional rules in respect of privilege are particularly strict.

The Constitution says that a member of the Oireachtas “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”. That is, the only body that can hold parliamentarians accountable for parliamentary speech is the parliament itself, and the courts cannot be involved.

The background

In 2015, deputies Catherine Murphy and Pearse Doherty made statements in the Dáil which purported to disclose some details of the businessman’s banking arrangements. O’Brien, at the time, had an on-going High Court action seeking to stop RTÉ from broadcasting these details and a temporary injunction had been given by the court.

The deputies would have violated the injunction if they had made the statements outside of the Dáil. However, in the event, they were protected under Oireachtas privilege.

O’Brien claimed that their statements were inaccurate and harmed his rights to privacy and good name, and interfered with his court action by revealing the information he sought to suppress.

The CPP, having assessed the statements made, decided that the deputies did not abuse their privilege. The Standing Orders of the Dáil prohibit members from discussing pending court cases in a manner that would interfere with them, but the Committee found these rules were not breached in this case.

O’Brien believed that the Committee made an incorrect decision, and that this procedure did not adequately vindicate his rights. He sought relief from the courts.

Traditional view wins out

In asking the courts to review the CPP in this way, O’Brien sought to overcome this constitutional hurdle and overturn the long-held understanding of the role of the judiciary in reviewing the Oireachtas.

His argument centred around the existence of the court injunction, claiming these privileged statements interfered with and sought to circumvent an order of the Court and to frustrate ongoing judicial proceedings. This, he argued, should not be allowed.

In the end, however, the traditional view prevailed, and Justice Una Ní Raifeartaigh in the High Court dismissed the claims.

The judge noted that the statements by the deputies were not made with the intention of frustrating or interfering with a judicial process, which would have violated the standing orders of Dáil Éireann.

Instead, it so happened that by revealing the information, which they thought to be in the public interest, a court process was frustrated and rendered moot.

But moreover, the judge held, the Constitution was abundantly clear that the courts simply cannot intervene in any matter related to privilege, either to pass judgement on the comments themselves or to assess the procedures or processes of the CPP in reviewing them.

The judge affirmed that the courts “simply do not have a role in policing parliamentary utterances”, even if O’Brien’s rights may have been violated by the comments.

She noted that it might be possible in truly exceptional circumstances that courts could perhaps intervene – if the entire constitutional order was in jeopardy, say – but that this case did not present such circumstances.

The High Court finding may well be appealed, but it seems very unlikely that the result will change; it is the clearly correct resolution of this case.

Any other result would have upturned one of the most important facets of our constitutional order. For our parliament to work, there must be freedom for representatives to speak without fear of legal consequences.

Justice Ní Raifeartaigh conceded that “parliamentary speech can potentially be damaging and dangerous to individuals the subject of the utterances”.

In her judgement she added:

One can readily imagine hypotheticals, such as, for example, the impact of the identification in the Dáil or Seanad of a person charged with a serious sexual offence who is legally entitled to anonymity during court proceedings and who is subsequently acquitted. One can produce many other hypothetical examples of the potential damage, hurt and danger that could be caused to persons by reason of the revealing in public of deeply sensitive personal information of various kinds.

But our Constitution values parliamentary speech above almost all else, including, potentially, the good name and privacy of citizens.

It does this because a functioning parliamentary system demands that parliamentarians can speak and debate freely, can raise any issues of public importance, and can reveal even private information or make potentially defamatory claims when it is in the public interest to do so.

The origins

The drafters of our constitution decided that the only way to ensure this is to put comments made in parliament completely beyond the reach of courts. Anything short of this will inhibit parliamentary speech for fear of legal consequences. The Constitution puts faith in our parliamentarians to use this very significant power responsibly.

This is not to say that there is no consequence for parliamentarians who abuse this power. The CPP is empowered to investigate and punish abuses of privilege and violations of the rules contained in the Standing Orders. The Committee – made up of members of parliament – will be best placed to judge whether use of privilege goes too far or is irresponsible.

O’Brien felt that he was the victim of a significant wrong, and was unhappy that there was no remedy available to him. He sought that in court. But, if a parliamentarian decides it is in the public interest to speak, and their colleagues on the CPP agree, there is no other remedy available.

This is the price we pay for the protecting the structure of our constitutional democracy.

If we are unhappy with how our representatives use the vast power that the Constitution vests in them, we have the power to voice our dissatisfaction at the ballot box, or insist on changes to the parliamentary rules or the even Constitution itself.

The responsibility for policing the use of privilege lies not with our judges, but with our elected representatives, and, ultimately, with us.

David Kenny is an assistant professor of law at Trinity College Dublin. 

Read: Denis O’Brien to take his time pondering an appeal after ‘disappointing’ court ruling

More: Denis O’Brien loses High Court case against Dáil committee

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About the author:

David Kenny  / Assistant Professor of Law, Trinity College Dublin

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