Denis O’Brien case raises questions of political freedoms going back centuries

The high walls built by the Constitution to protect freedom of speech in the Oireachtas “have towering ramparts to protect against judicial invaders”, senior counsel for the Oireachtas Michael Collins told Ms Justice Úna Ní Raifeartaigh on Friday.

It was not the first time the case taken by businessman Denis O’Brien against the Oireachtas has heard echoes of the deep historical background to the issues being considered.

Both Collins, and Michael Cush SC, for O’Brien, have referred to the 1689 English Bill of Rights, which put limits to the power of the monarch and laid down certain rights for parliament, including the right of free speech in parliament.

Centuries of struggle, including war, aimed at achieving a working arrangement for state power, are the backdrop to the constitutional separation of powers.

In Ireland, the structures put in place include article 15.13 of the Constitution, which is key to the O’Brien case. It stipulates that members of the Oireachtas cannot be held “amenable to any court or any authority other than the House itself” for what they say in the Oireachtas. As Collins pointed out, even the wording of 15.13 reflects that of article 9 of the Bill of Rights, which established freedom of speech for members of the London parliament in 1689.

O’Brien’s case stems from his obvious and understandable fury that his personal banking details, which he wanted to keep confidential, and which he had managed, by way of a temporary injunction, to prevent RTÉ from publishing, were disclosed last year by deputies Catherine Murphy and Pearse Doherty in the Dáil.

Two arguments

He is making two arguments. One, the so-called overarching argument, is that the deputies effectively determined the issue before the courts by releasing information the court was being asked to order be kept confidential on a permanent basis. This was a breach of the separation of powers, he says. His second argument is that the Dáil committee which investigated the complaints he subsequently made, did not do so properly and breached his right to fair procedures.

Collins’ argument about ramparts and walls is that the Irish Constitution leaves no doubt about the immunity stipulated in 15.13. The privilege is absolute. The courts, he said, have no role in examining and forming views about what is said in the Dáil.

The prohibition on the courts getting involved is part of the separation of powers, he said. As stated by Mr Justice Kelly in 2008 in a case taken by the then taoiseach Bertie Ahern against the Mahon tribunal: “Mr Ahern may be judged by the court of public opinion in respect of his parliamentary utterances, but not by the tribunal.”

Personal interest

On the question of the committee, Collins said its inquiry was focused on the actions of the deputies, not on O’Brien, who was only the complainant. There was no question, he said, of O’Brien’s constitutional rights being affected. O’Brien might have a personal interest in seeing the deputies reprimanded, but his rights were not in play. The businessman had no constitutional right to having the satisfaction of seeing the deputies sanctioned.

The case has heard that judges have to be independent and impartial, and politicians, who are properly partial and political on behalf of the electorate, should not become involved in adjudicating on judicial disputes. This protects people’s rights. Elected representatives of the people should not be amenable to authorities other than the Oireachtas, such as the courts, when taking part in parliamentary debate. This protects people’s political freedoms.

It’s a model that was worked out a long time ago. How it all interacts with the facts of the case taken by O’Brien is something Ms Justice Ní Raifeartaigh is being asked to decide.