Denis O’Brien case: ‘Appalling consequences’ if court can examine Dáil speeches

There would be "appalling consequences" if the courts sought to examine or restrain statements made in the Dáil, the High Court has been told.

The Constitution makes “absolutely clear” that Dáil statements, including those made by two TDs about businessman Denis O’Brien’s banking affairs, cannot be examined by any court except by the “court of public opinion”, Michael Collins SC, for a Dáil Committee, said.

Mr O'Brien was essentially inviting the court to find there was some "impropriety" in the statements made by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty but that cannot be done, he said.

The Constitution recognised that Dáil deputies must have “certainty” about what they can speak about and cannot operate under a shadow of uncertainty and possible court scrutiny.

That was why Article 15 provided an absolute “ouster” - as had been made clear by several legal decisions - of the courts’ jurisdiction to do so. Article 15 conferred “express immunity” on Dáil statements and the walls set up by the Constitution to “repel judicial invaders” contained “nothing fuzzy or imprecise”.

The declarations being sought by Mr O’Brien, including that the statements by the two TDs amounted to “unwarranted interference in the judicial domain, “cannot be made”, counsel argued.

The declarations either have legal consequence or they do not, he said. If they do not have consequence, they should not be made. If they do, they should not be made because they would make the TDs “amenable” to the court which, as a result of Article 15, cannot be done.

Article 15 makes clear the only entity that can examine Dáil statements is the Oireachtas itself, and that was done in this case, he said.

Mr Collins, for the Dáil Committee on Procedure and Privileges (CPP), was continuing his arguments opposing Mr O’Brien’s action alleging the two TDs “clearly disregarded” the constitutional separation of powers between parliament and the courts in their statements.

In his case against the CPP and the State, the businessman wants the court to declare the statements, made in May and June 2015, amounted to “unwarranted interference” in the judicial domain.

Mr O'Brien also claims the Committee failed to "properly police" the TDs over their statements, made when he had ongoing High Court proceedings against RTÉ seeking to restrain it publishing details of his banking relationship with State-owned Irish Bank Resolution Corporation.

In arguments before Ms Justice Una Ni Raifeartaigh today, Mr Collins said the courts had ruled, in proceedings by former taoiseach Bertie Ahern against the Mahon tribunal, the tribunal could not draw attention to whether there were inconsistencies between statements made by Mr Ahern in the Dáil concerning various loans and statements made outside the House.

In that case, the courts addressed the “fundamental privilege” over Dáil statements provided for under Article 15, he said.

That provision not only protected members of the Oireachtas from being made amenable to any court or other State authority for statements made in the Houses, it also conferred “exclusive” jurisdiction on the House itself to decide any complaints against members over statements made, the court heard.

When that body decided complaints, as the CPP did in this case, it was not breaching the separation of powers between the courts and parliament but rather sitting “four square” within Article 15.13.

When a court said it would not examine a complaint against a TD over a Dáil statement, the court was not breaching the separation of powers, it was “upholding” the separation of powers, counsel said.

The case continues.