Oireachtas urged to review rules around use of privilege
The overriding power of Article 15.13 of the Constitution meant businessman Denis O'Brien was always destined to lose his High Court action over the disclosure by two TDs of his banking arrangements.
This article deals with parliamentary privilege and means TDs and senators cannot be censured for anything they say in the Houses of the Oireachtas by any body except for the Oireachtas.
Mr O'Brien had asked the court to censure the TDs, who divulged his banking details at a time when he was involved in proceedings restraining RTÉ from revealing much of the same information.
But even though the court found Mr O'Brien was "undoubtedly damaged" by the deliberate actions of the TDs, under the Constitution it could not intervene on the issue.
It said courts do not have the power to draw a line between "legitimate" and "illegitimate" speech in the Oireachtas.
While Mr O'Brien lost the case, he did succeed in bringing attention to the manner in which parliamentary privilege is policed. This is done in the Dáil by the Committee on Procedures and Privilege (CPP), which has considered a number of complaints on the issue in recent years.
That committee cleared Catherine Murphy of the Social Democrats and Pearse Doherty of Sinn Féin, the two TDs Mr O'Brien complained about.
But even when the committee did find against a TD, the punishment was little more than a slap on the wrist.
For example, Sinn Féin's Mary Lou McDonald was found to have abused privilege when she named several people, including five former ministers, as Ansbacher account holders.
Her comments were made in defiance of legal advice received by the Public Accounts Committee, urging against the disclosure of unfounded claims made by a civil servant in the so-called Ansbacher dossier.
Although the committee found against her, Ms McDonald refused to apologise, saying her comments were made "in good faith and in the public interest". She faced no real sanction and the issue was soon forgotten about.
While accepting in her ruling yesterday that the courts had no role in such matters, Ms Justice Ní Raifeartaigh strongly suggested that the Oireachtas needed to look at how it regulates itself, particularly when it comes to comment on cases before the courts.
She said there seemed to be "some ambiguity and lack of clarity as to procedures and parameters concerning speech potentially trenching on sub judice matters".
"It may be that the present case throws a light on the need for a general examination of this area by a committee of a similar type in Ireland which would take into account a wide variety of factors and would not be confined to the facts relating to a particular case," she said.
The judge said such a review might consider issues such as whether and when a Dáil deputy may discuss matters which are before the courts and, in particular, reveal matters that are the subject of an injunction. It might also consider the role of the Ceann Comhairle and the CPP in such a scenario.
Whether the judge's suggestion will be acted upon remains to be seen, but it should be hard to ignore. At the very minimum it could lead to the clearer definition of parameters of acceptable comment in our parliament.