Sam Boal

Opinion Had Denis O'Brien's suit succeeded, our democratic system could have been undermined

Free speech and open debate in parliament is essential to our democratic system and would be inhibited if TDs were constantly under threat of lawsuits, writes David Kenny.

LAST WEEK, THE Supreme Court issued a surprising judgment in the Angela Kerins case, holding that it was willing to oversee statements in Oireachtas committees in some limited circumstances.

The court found that the Public Accounts Committee acted “significantly outside its remit” in its questioning of former Rehab CEO, Angela Kerins.

But Denis O’Brien’s claim, which the Supreme Court dismissed today, was a step too far. 

The Kerins case showed that there is no absolute bar on the courts overseeing the conduct of Oireachtas committees.

However, the O’Brien case shows that there is a near-absolute bar on courts ruling on privileged speech in parliament.

This result is not unexpected, but it is very important.
Had O’Brien succeeded in his claim, it would have fundamentally altered the separation of powers between the Oireachtas and the courts.

O’Brien claimed that statements made by two TDs in the Dáil, Catherine Murphy and Pearse Doherty, had violated his right to privacy by revealing information related to his banking arrangements.

The subject matter of the comments was, at the time, also under consideration in another High Court case where O’Brien was seeking to prevent RTE from broadcasting similar information.

The core of O’Brien’s appeal to the Supreme Court was that this incident had not been dealt with properly by the Committee on Privilege and Procedure (CPP), which found that the TDs had not abused their privilege.

O’Brien asked for the courts to declare that this process was inadequate.

This claim raised major issues about the scope of Oireachtas privilege.

Article 15.13 of the Constitution says that parliamentarians “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, TDs and Senators are not answerable to courts for what they say in parliament; they are answerable to their peers in the Oireachtas.

If they abuse their privilege, the CPP can investigate statements of this sort and if appropriate, impose sanctions. This is a fundamental aspect of the separation of powers.

Free speech and open debate in parliament is essential to the running of our democratic system and would be inhibited if parliamentarians worked under threat of possible lawsuits and judicial oversight.

O’Brien argued in the Supreme Court that he was not trying to make the individual TDs answerable in court, but rather asking the court to review whether the Oireachtas’ procedure for dealing with abuse of privilege in the CPP was inadequate. 

But the Supreme Court said that even this, it could not do.

O’Brien’s case was an “indirect or collateral challenge” to the statements made by the TDs in the Oireachtas.

The effect of a successful challenge to the committee on procedure would be to suggest or require a reconsideration of TDs’ statements.

In practice, the Court reviewing the CPP’s process would indirectly interfere with parliamentary speech, the very thing that the constitutional protection is designed to avoid.

This, the Court said, would be “a breach of Article 15.13 and would amount to an impermissible departure from the separation of powers.”  

The Court admitted that rights might, from time to time, be violated by parliamentarians invoking privilege and there would be nothing judges could do.

That is not to say the rights are unimportant or unprotected, but rather that the Oireachtas has a “constitutional obligation to protect the rights of citizens in respect of that which transpires within the Houses themselves.” 

The duty to defend these rights lies with the Oireachtas rather than the courts, and we have to trust the Oireachtas to perform this task well. 

The Court did not quite say that intervention would never be possible.

In the most extreme case, such as a massive or prolonged failure of the Oireachtas to meet this constitutional obligation to protect rights – perhaps the courts would have to intervene. 

However, that was far from the case here, and so the Court deferred considering this matter unless and until such an extreme circumstance arose.  

The Supreme Court’s judgment is not surprising. This case went to the very core of parliamentary privilege and the very heart of the separation of powers. 

Had O’Brien succeeded, it would have upended our understanding of the separation of powers and radically changed the relationship between the courts and the legislature.

It would also have had potentially significant consequences for freedom of parliamentary speech.

In the end, this judgment leaves the responsibility for policing Oireachtas privilege in the hands of our parliamentarians, who must use their powers responsibly, and acts as a check on any peers who do not. 

If we are unhappy with how this is done – if we feel privilege is being abused or rights being violated – then we, the people, must demand change by lobbying our politicians or using our power at the ballot box. 

The power to ensure better oversight and accountability for use of privilege never belonged to the courts. That power was and still is, in our hands.

Dr David Kenny is Assistant Professor of Law at Trinity College Dublin. He is a co-author of the recent fifth edition of the leading text on Irish constitutional law, Kelly: the Irish Constitution.

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