TDs who abuse free speech only get a slap on the wrist
Tycoon's lawsuit puts spotlight on how Oireachtas handles alleged abuses of parliamentary privilege, writes Shane Phelan
Businessman Denis O'Brien's mistrust of the Oireachtas stems from much more than the disclosure of his banking arrangements by two TDs in the Dail chamber.
He also believes it is possible for TDs to be used by individuals to put information in their interest into the public domain using the cloak of Dail privilege.
The media and telecoms tycoon wasn't quizzed about this view when he took to the stand last week in his High Court action against the State, the Clerk of the Dail and the Dail Committee on Procedure and Privilege (CPP). But he raised the concern in a written submission to the court, citing another lawsuit in which he is involved.
This was the much publicised dispute with Red Flag Consulting, a company run by former Independent News & Media executive Karl Brophy.
In those proceedings he alleged a conspiracy against him involving the compilation of a dossier of "damaging" information.
The documents in the dossier included a draft of a Dail speech by former Fianna Fail TD Colm Keaveney, which O'Brien said included suggested amendments by Red Flag.
Keaveney claims the speech he gave in the Dail was "his alone" with no third party influencing or contributing to it. But in drawing attention to the Keaveney speech, O'Brien said: "It is by no means inconceivable that in Ireland parties with no particular political interest seek to use deputies to communicate messages supportive of their private interests using the protection afforded by Dail privilege."
His point here is that there are a number of ways in which privilege can be abused by TDs and there need to be certain curbs on the scope of the Dail to debate. To his mind, TDs who have abused privilege have not been policed correctly by the Dail either through being stopped in their tracks by the Ceann Comhairle or afterwards, when disciplinary investigations take place.
The two TDs in this case, Social Democrat Catherine Murphy and Sinn Fein representative Pearse Doherty, were both cleared of any wrongdoing by the CPP, much to O'Brien's annoyance.
He wants the High Court to declare that the committee got things wrong.
O'Brien also wants the courts to declare that by disclosing loan arrangements he had with the Irish Bank Resolution Corporation, they effectively decided the outcome of injunction proceedings he had taken against RTE, which had been seeking to broadcast the information.
The TDs breached the separation of powers between the legislature and the judiciary and should be censured by the courts for that, he argued.
He said he was taking the case not just for himself, but so something like this would not happen to another citizen.
Seasoned legal observers spoken to by the Sunday Independent believe O'Brien's chances of winning the case are slim as the constitutional protection on free speech in the Dail may be too strong for his arguments to override.
TDs and senators are conferred with a powerful "immunity" by the constitution.
Article 15.13 states TDs and senators cannot be held amenable to the courts over something they say in the chambers of the Oireachtas.
This means that the courts cannot deal with complaints made about matters said in the Dail and that the Houses of the Oireachtas is the only authority with exclusive power to deal with such complaints. As Michael Collins SC, representing the CPP, neatly put it, if a TD said something which caused a murder trial to collapse, this immunity would hold.
O'Brien admitted under cross examination that if he was to win, the mere fact of issuing High Court proceedings would have the effect of greatly restricting Dail speech.
Collins said politicians were entitled to speak freely in the Oireachtas without the "chilling hand of litigation resting on their shoulders", a freedom which is integral to the separation of powers.
Even if he does lose, the O'Brien case is likely to be the cause of some soul searching in Leinster House.
It is commonly accepted that parliamentary privilege should be used responsibly.
But the way the Dail polices itself leaves a lot to be desired and the penalties for TDs who abuse privilege amount to little more than a slap on the wrist.
For example, the CPP found Sinn Fein TD Mary Lou McDonald had abused parliamentary privilege when she named several people, including five former ministers, as Ansbacher account holders.
In doing so, she defied legal advice the Public Accounts Committee had received urging against the disclosure of unfounded claims made by a civil servant in the so-called Ansbacher dossier.
If McDonald's comments had been made outside the Dail, those named could have sued and secured hefty libel awards.
Despite the CPP's finding against her, McDonald stood over her actions and refused to apologise, saying her comments were made "in good faith and in the public interest". There were no adverse consequences for McDonald and the issue eventually fizzled out.