Monday 24 October 2016

O'Brien entitled to disagree on privilege - but power lies with TDs, not the courts

David Kenny

Published 05/08/2015 | 02:30

Denis O'Brien
Denis O'Brien

Denis O'Brien's legal action against the Dáil Committee on Procedure and Privileges (CPP) raises fundamental questions about how and why our Constitution distributes power between our legislature and our courts.

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Mr O'Brien is claiming that the CPP was wrong to find that Catherine Murphy TD did not abuse Dáil privilege by discussing allegations surrounding his banking arrangements in the course of a parliamentary debate, the publication of which, he claimed in a contemporaneous court action against RTÉ, would breach his right to privacy.

Mr O'Brien's solicitors have alleged that the Oireachtas has no "effective parliamentary procedures to prevent a member abusing parliamentary privilege".

There is a parliamentary procedure to address potential abuse of privilege: the CPP considers statements made in the Dáil and decides whether they were appropriate, having regard to the effect such statements might have on reputation and privacy, and whether the TDs in question acted responsibly, in good faith, etc. If it finds that a member has abused his or her privilege, it has various remedies and sanctions at its disposal.

The CPP followed this procedure in respect of Deputy Murphy's statements, considered submissions from Mr O'Brien's lawyers, took legal advice, and concluded that no abuse of privilege had taken place.

Mr O'Brien's claim is that this shows how the Oireachtas cannot be trusted to police the question of privilege itself, and that the courts should intervene.

He will struggle, I think, to persuade the courts of this. There is a long line of clear and emphatic judicial authority that stands against his claim, stating that the courts should not be involved in policing the internal workings of the Houses of the Oireachtas.

One of the highest ideals in Bunreacht na hÉireann is the separation of powers: that the powers of government are divided between the legislative, executive, and judicial branches, with certain checks and balances between them. Each branch of government has particular powers and functions that are separate from the others.

Though we might think to seek help from courts when dissatisfied with the performance of the elected branches, the courts have repeatedly refused to take on a general power of oversight of the legislature and the executive. The courts allow the legislature to govern itself without judicial check where this is necessary to ensure the effective functioning of parliament and effective democratic governance.

In particular, the courts have clearly stated that the internal disciplinary procedures of the Houses of Parliament are not subject to court control as the separation of powers affords control of them exclusively to the legislature. The Oireachtas gets to decide how and whether to discipline its members, by its own standards and rules it sets for itself, without court interference.

This is not an archaic principle, dusted down from cases decades old. It was strongly restated by the Supreme Court in 2014 in Ivor Callely's challenge to his disciplinary hearing in Seanad Éireann on his expenses claims. The Court held that the Houses of the Oireachtas can make and apply their own disciplinary rules, and the courts will not review the manner in which those rules are made and applied, save perhaps in the most extreme circumstances.

There may be more scope for court intervention in parliamentary procedures, such as inquiries, when the rights of non-parliamentarians - ordinary, private citizens - are at stake, and Mr O'Brien would claim that he falls within this category. But his challenge is concerned not only with disciplinary proceedings but with the even more important matter of parliamentary privilege. Here, the constitutional text is perhaps even clearer: it says that a member of the Oireachtas "shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself".

By virtue of this constitutional provision, only the Houses of Parliament may hold parliamentarians accountable for what they say in parliament. This important democratic protection would be meaningless if, in fact, the courts had the power to say that parliament's judgment was wrong or its procedures governing the use of privilege were inadequate.

Parliamentary privilege exists to ensure open and free debate on matters of public interest. For that privilege to be meaningful, it cannot be set aside at the whim of a court.

Court challenges, indeed, are the very thing that the privilege exists to guard against, so that they will not inhibit the freedom to speak in parliament.

Mr O'Brien might say that this leaves us open to all sorts of inappropriate statements being made in the Dáil under the cloak of privilege, without oversight, and with significant risks to the rights of good name and privacy of private citizens.

But this ignores the oversight mechanism already in place: unlike courts, legislatures are accountable to the people, and the people have trusted the Houses of the Oireachtas to check themselves in their use of this power.

We trust our representatives to conduct responsible debate, to police irresponsible behaviour, and to take seriously the significant power that parliamentary privilege affords them.

We trust the Oireachtas, rather than the courts, to balance individual rights and the public interest in this instance. If they fail to do this to our satisfaction, the remedy is at the ballot box.

For my part, I think that Deputy Murphy's comments fall squarely within the proper bounds of parliamentary privilege.

Mr O'Brien is entitled to disagree, but it is not his opinion, nor mine, nor even that of a High Court judge that matters.

It is her fellow TDs who sit on the CPP - in whom the Constitution rightly entrusts the task of balancing parliamentary free speech with the rights of private citizens - who have the final word.

David Kenny is an Assistant Professor of Law at Trinity College Dublin, teaching constitutional law and legal theory.

Irish Independent

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