Denis O’Brien appeal result proves privilege to be ‘seriously robust’

The Supreme Court judgment dismissing Denis O’Brien’s appeal over Dáil statements by two TDs on his banking affairs makes clear that parliamentary immunity from legal action is “a seriously robust constitutional principle”, a leading constitutional academic has said.

Tom Hickey, assistant professor at the School of Law and Government in Dublin City University, said the judgment makes very clear that any court intervention, even if that were deemed possible, would have to be in circumstances where the constitutional architecture itself was “in peril”.

The O’Brien decision, along with the court’s judgment last week on aspects of former Rehab chief executive Angela Kerins appeal over her treatment by the Dáil Public Accounts Committee, means parliamentary immunity, while not “absolute”, “means a great deal” and the threshold for intervention by the courts with the workings of Dáil committees is “extremely high”.

Given the court’s decision that the PAC acted outside its remit concerning Ms Kerins, the threshold may however “not be as high as was thought” and that finding may introduce “a level of caution” into the internal conduct of Oireachtas business, Mr Hickey added.

In its unanimous judgment on Tuesday, the seven-judge court said it could not intervene in how the Oireachtas Committee on Procedure and Privileges (CPP) dismissed Mr O'Brien's complaints over the statements made by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty in summer 2015 about his banking affairs.

He complained those statements effectively made pointless an injunction he earlier obtained against RTÉ preventing it from broadcasting information about his banking relationship with State-owned Irish Bank Resolution Corporation. He claimed the CPP breached its own rules in how it addressed his complaint.

The Supreme Court said it might well be argued the CPP erred in some ways but it could not intervene with the CPP decision because that would involve an indirect attack on the constitutional immunity from legal action given to statements or “utterances” in the Houses of the Oireachtas.

Whether or not the courts could intervene in a situation of the most exceptional and “egregious” circumstances would have to be decided in an appropriate case, it added.

The judgment was welcomed by both TDs. Ms Murphy said it was “yet more recognition by the courts that parliamentary privilege is an important aspect of our system of democracy and one which is constitutionally protected”.

In a statement, Mr O’Brien said he was disappointed with, but fully respected, the judgment and would fully consider it and its implications but feared it “leaves Dáil privilege open to further abuse in the future”.