TDs cannot be made explain utterances or be sued over them, court hears

State’s counsel in Denis O’Brien case says article 15.13 gives TDs ‘powerful immunity’

Denis O’Brien arriving at the Four Courts   where he gave evidence on Thursday. Photograph: Brian Lawless/PA Wire

Denis O’Brien arriving at the Four Courts where he gave evidence on Thursday. Photograph: Brian Lawless/PA Wire


Politicians are entitled to speak freely in parliament without the “chilling hand of litigation resting on their shoulders”, counsel for a Dáil committee told the High Court on Thursday.

That freedom is “absolutely integral” to the separation of powers between the legislature and the courts and is not just for the benefit of the individual parliamentarian, but for the benefit of parliament as a whole, Michael Collins SC, said.

While Denis O’Brien wanted the court to “examine and evaluate” statements made in the Dáil by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty about his banking affairs, that is “one of the fundamental things the court simply cannot do”.

Mr Collins, for the Oireachtas Committee on Procedure and Privileges (CPP), said the Constitution, and a series of court decisions, make absolutely clear the courts cannot intervene to make TDs answerable to the courts for anything they say in the Dáil.

This case was not about the constitutional right to freedom of speech and expression – although TDs also have that right – but was rather about the separation of powers.

No jurisdiction

The Constitution specifically states members of the Oireachtas are not “amenable” to the courts for their “utterances” in the Houses of the Oireachtas.

That provision – article 15.13 – meant the courts’ jurisdiction was “ousted”.

The “powerful immunity” given to those utterances meant the court cannot examine the TDs’ statements because requiring TDs to explain their statements amounted to making them “amenable”.

TDs cannot be required by the courts to explain their utterances, cannot be held responsible for them and cannot be sued for them, he said.

It was “almost self-evident” the declarations being sought by Mr O’Brien, including that the TDs’ statements amounted to “unwarranted interference” with the judicial domain, was an attempt to make them amenable to the court.

Mr Collins also disagreed the courts may have some jurisdiction to “reprove”, rather than sanction, the TDs.

The courts have no jurisdiction to intervene in the process of the exercise of freedom of speech in the Houses of the Oireachtas, he said.