Shane Phelan: 'Protection of Constitution sinks O'Brien's appeal over Dáil speeches on banking affairs'
Businessman Denis O'Brien's defeat in the Supreme Court was the second significant ruling on speech in the Oireachtas in less than a week.
The court found in favour of former Rehab Group chief executive Angela Kerins in her battle with the Dáil Public Accounts Committee (PAC) last Wednesday.
Yesterday, the same court rejected Mr O'Brien's appeal against the dismissal of his action against another Dáil committee and the Clerk of the Dáil. So why were there two differing outcomes?
Although the cases had similarities, there were also significant differences.
In both cases, the court recognised the protections contained in Article 15 of the Constitution, which means TDs and senators are not "amenable" to any court or other authority other than the Oireachtas over what they say under parliamentary privilege.
However, an exception was found in the Kerins case, where the court signalled it could intervene where "there has been a significant and unremedied unlawful action on the part of a committee".
The court said although the Dáil Committee on Procedures and Privileges (CPP) determined the PAC was acting significantly outside of its remit in pursuing Ms Kerins, it did not seem any significant action was taken as a result.
Mr O'Brien's Supreme Court challenge related to events in 2015, when he got injunctions restraining RTÉ from airing details of his banking relationship with the Irish Bank Resolution Corporation.
Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty later revealed the information in the Dáil, actions Mr O'Brien said rendered his injunctions pointless. The businessman, who is the largest shareholder in Independent News & Media, owners of the Irish Independent, complained to Oireachtas authorities.
But the CPP found the TDs had not breached any rules.
Mr O'Brien lost a High Court action over the matter in 2017. Ms Justice Úna Ní Raifeartaigh found what he sought was prohibited by the separation of powers and would have a "chilling effect" on parliamentary speech.
In his Supreme Court appeal, the businessman argued the CPP broke its own rules.
He argued there was no evidence the CPP could have decided the TDs acted responsibly and in good faith when they made their statements.
The Supreme Court found the only practical consequence of a ruling in Mr O'Brien's favour would be a reconsideration by the CPP of its decision.
"If that should lead to a different result, then a court would have been, at least indirectly or collaterally, involved in dealing with utterances made in the Houses," it said.
"In the court's view such a course of action is impermissible under the Constitution."
The ruling stated that while it might be said the CPP "over-readily" and "without sufficient inquiry" came to the view the TDs acted in good faith, this fell "a very long way short" of demonstrating the sort of "egregious or persistent failure to vindicate the rights of a citizen" which might allow the court to intervene.
The TDs whose Dáil statements sparked the case welcomed the ruling, saying the importance of parliamentary privilege had been recognised.
Mr O'Brien said while he was disappointed, he fully respected the decision. But he added that he feared it left Dáil privilege open to abuse. He said: "A consequence of this decision would seem to be that an elected representative can make any allegation about any citizen in Dáil Éireann - be it true or untrue, defamatory or otherwise, without sanction."
This was the second major legal battle lost by Mr O'Brien in recent days. Last Friday, he lost a High Court libel action against the 'Sunday Business Post' over articles relating to his borrowings. The costs he faces from that case are estimated to be around €1m.
A similar bill could be in store should costs be awarded against him by the Supreme Court. The High Court previously found his action was not novel enough to warrant a departure from the usual rule that the losing side pays. This decision has been appealed by Mr O'Brien and will be addressed at a later date.