Saturday 17 March 2018

Denis O'Brien legal challenge: Defence argues 'no jurisdiction in courts to intervene in process of freedom of speech on floor of house'

Businessman Denis O'Brien arrives at the Four Courts in Dublin. Photo: Brian Lawless/PA Wire
Businessman Denis O'Brien arrives at the Four Courts in Dublin. Photo: Brian Lawless/PA Wire

Andrew Phelan and Shane Phelan

The defence for the Committee of Parliamentary Privilege (CPP) has begun in Denis O'Brien's High Court legal challenge.

This afternoon, Mr Cush closed Mr O’Brien’s case and Michael Collins SC, began the defence case for the CPP.

He said there were a number of “discreet issues” for decision by the judge which could be considered in a “fairly straightforward manner.”

He argued that Section 15 (3) of the Constitution covering Oireachtas privilege was an “ouster of jurisdiction” regarding any attempt to hold members amenable to the courts for what was said before the house.

He said Mr Cush had said he was not seeking to make the two TDs amenable to the court.

“I say it is almost self-evident that what is being sought to be done in the declarations does in fact seek to make the Dail amenable to the court,” Mr Collins said.

“I say there is no jurisdiction in the courts to intervene in the process of the freedom of speech on he floor of the house,” Mr Collins said.

He argued that Mr Cush’s “overarching theory” had no application in relation to Section 15 (13) of the Constitution.

He said even if the judge was against him on this point and she agreed that there was a form of “overarching or residual jurisdiction”, she would have to decide that the facts of this case warranted invoking it.

“Are these such exceptional circumstances that the court would be moved to cross that line between the judiciary and other branches of government, to cross that separation of powers?” Mr Collins asked, adding that he would be saying they were not.

He said the court did not have the power to intervene in the Dail committee.

“Mr Cush said Mr O’Brien had a right that the committee’s decision should be made properly but where is Mr O’Brien’s Constitutional right to that, in terms of the Dail’s internal process of enquiring into its own affairs?” Mr Collins asked.

He said the committee’s findings did not interfere with (Mr O’Brien’s court action against RTE) in any shape or form.

“He gave evidence today that even if the committee had reprimanded the deputies, that would have made no difference because he would still have proceeded with these proceedings,” Mr Collins said.

“The case against the committee disappears in a puff of irrelevancy,” he said, because the "circumstances were not such to justify" the court exercising whatever jurisdiction it might have.

“This is not some sort of Constitutional right vested in the Dail or the deputies’ freedom of expression,” he said of parliamentary privilege.

“We are not referring to Constitutional rights that can be put in the balance and weighed against other competing rights. It is an ouster of jurisdiction. It is something that is absolutely integral to the separation of powers.”

Mr O’Brien is the only witness in the case, which began on Tuesday.

Mr O'Brien gave evidence earlier today.

The businessman told the High Court threats were made to his and his family’s lives after a TD spoke about his banking arrangements with the Irish Bank Resolution Corporation in the Dáil.

The telecoms and media businessman was giving evidence this morning in his legal action alleging comments in the Dáil by two TDs interfered - Social Democrats' Catherine Murphy and Sinn Fein TD Pearse Doherty - with a court case he was involved in with RTÉ.

Mr O’Brien confirmed to the court that while he had often received “nasty comments”, the threats on his life were “probably the most serious.”

His barrister, Michael Cush SC, asked Mr O’Brien about “personally upsetting threats to your life and the lives of your family.”

These threats were received from two different people in on May 31 last year, just three weeks after Ms Murphy disclosed his banking arrangement in the Dáil.

He later reported the threats to gardaí, the court heard.

“You had often received nasty comments but nothing of this nature before,” Mr Cush said.

“I thought this was probably the most serious,” he replied.

The court heard the threats were made by two people, but Mr O’Brien was not suggesting TDs were in any way involved.

He was giving evidence in an action arising out of statements by Ms Murphy and Sinn Féin TD Pearse Doherty in the Dáil in May and June 2015 about his banking affairs.

At the time, Mr O’Brien was involved in injunction proceedings against RTÉ, to stop the station from broadcasting banking information.

But the court had heard Dáil statements made by the two TDs had the effect of putting all of the information at issue in the injunction proceedings into the public domain.

“If you are a long standing customer or even a customer for a week with a bank, you are discussing your private business matters… there is nothing more confidential than banking details except maybe medical records,” Mr O’Brien said.

He told the court it would be a “pretty extraordinary situation” if every citizen of the State had their banking details disclosed and their “privacy invaded.”

“I sought a court order against RTE to stop that, for privacy reasons,” he said.

“In this situation, my solicitors sought an injunction, a court order and that was granted. In parallel, two miles away in the houses of the Oireachtas, information that was part of that order was being disclosed,” Mr O’Brien continued.

Asked about the importance of this, Mr O’Brien said it meant “nobody would have any protection… that any court order could be broken by a member of the Oireachtas.”

“It would be a very bad thing, I believe, for a country to have a situation where people could rely on the courts and get an order from the courts, for that to be unravelled by a different section of the country,” Mr O’Brien continued.

He told the court he believed that, in terms of someone looking to invest in Ireland, that would be on a “checklist” and it would be considered a “considerable weakness.”

Lawyers for Mr O’Brien have previously claimed the TDs were “guilty of an unwarranted interference” in RTÉ case, and had disregarded the constitutional separation of powers between parliament and the courts.

Mr O’Brien is not seeking damages, but wants a declaration his rights were breached.

He also wants declarations that the courts had the exclusive right to determine the outcome of the proceedings with RTÉ, that the “substantial effect” of the TDs’ comments was to decide the outcome of that case, and that their interference was “unwarranted”.

Mr O’Brien also wants the court to declare that the Dáil Committee on Procedures and Privileges made an error when it cleared the TDs of any wrongdoing.

The claims are denied by the defendants.

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