In defence of privilege

O’Brien v CPP

 

When businessman Denis O’Brien took RTÉ to the High Court in June to injunct the broadcast of details of his relationship with State-owned Irish Bank Resolution Corporation (IBRC), he was largely unsuccessful. Ironically, however, although he thankfully failed to breach the wall of parliamentary privilege – Independent Catherine Murphy’s and Sinn Féin’s Pearse Doherty’s right to speak freely, and to be reported, in the Dáil chamber – he won a small but significant victory.

Ms Murphy had made Dáil claims about the sale by IBRC of Siteserv to Mr O’Brien, which could be reported. But any information separately held by RTÉ which derived from legally privileged information might not be included in the broadcast or any other publications, Mr Justice Donald Binchy directed. Having insisted that he had never intended to interfere with TDs’ privilege, the judge duly also acknowledged that of his brother lawyers in their relations with clients. Both, the respective professions would insist fiercely, are essential pillars of their work without which they could not function effectively, and both are rightly protected in law. Journalists and priests also claim similar privileges – in their case of silence – and these, importantly, are also protected, although to a lesser degree.

Article 15.13 of the Constitution is clear. It says members of the Oireachtas “shall not”, in respect of any utterance made in either house, be amenable to any court or authority other than the House itself. Now, however, Mr O’Brien, having failed once, is seeking a second bite of the cherry, a judicial review of the way in which the House, through the Dáil’s Committee on Procedure and Privileges (CPP), has held, or not held, one of the TDs to account for allegedly abusing privilege.

The move has been widely denounced, not least by Fianna Fáil leader Micheál Martin who rightly argued that the case “represents a threat to a fundamental right enshrined in our Constitution, which is freedom of speech in parliament”.

At issue first for the court is, therefore, whether it should hear the substantive complaint at all. Is the CPP amenable to judicial review without fatally undermining the constitutional independence of the Dáil? From a political perspective, the crucial principle of the separation of powers between legislators and the judiciary means that the committee should be answerable only to the Houses. The answer must be an emphatic No.

That is also the clear purpose of the writers of the Constitution. Any other interpretation, however tempting to judges instinctively distrustful of the imperfection of political decision-making, will set the judiciary on a course of confrontation with parliament that it will rue, irrespective of the merits of Mr O’Brien’s cause. His case is ill-judged and dangerous, a regrettable move by a wealthy serial litigator. He should withdraw it.

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