If the Supreme Court had found in favour of businessman Denis O’Brien there would have been big changes in how statements are made under Dáil privilege and how these are reported.
This one had big implications for the separation of powers, whereby the courts give parliament the space to order its own business.
An important decision by the same court last week found in favour of another complainant, the former head of Rehab, Angela Kerins, who felt she had been most unfairly treated at hearings of the Public Accounts Committee (PAC).
That Supreme Court ruling last Thursday, which reversed an earlier High Court ruling, left TDs and their legal advisers carefully weighing how they should approach future committee inquiries.
So there was a sense of relief among politicians at Leinster House as news of the Supreme Court judges’ latest decision filtered through from its sittings in Galway just before 11am yesterday. This relief was most evident in the response of the two politicians directly involved.
Sinn Féin’s Pearse Doherty said the Supreme Court ruling set well-defined limits to when and how parliamentary proceedings could be adjudicated on by the courts. “One of the key things that has come out of this is that the privilege bestowed on TDs, in terms of parliamentary privileges, is sacrosanct and cannot be adjudicated by the courts,” the Donegal TD said.
For Catherine Murphy of the Social Democrats, the findings also showed that neither she nor Mr Doherty had abused Dáil privilege in statements made in 2015 about Mr O’Brien’s financial affairs.
Last Thursday, the Supreme Court found it would not be a breach of the separation of powers to find some the actions of the PAC in questioning Ms Kerins were unlawful. In that case the judges found the PAC was acting outside its remit and that the Oireachtas Committee on Procedure and Privileges had already come to the same view.
That Kerins judgment was qualified in important respects. But it underlined that the privileges and immunities of TDs and senators, while extensive, are not an absolute barrier to court action against a Leinster House committee.
For yesterday’s judgment, Mr O’Brien had appealed the High Court finding that the courts had no power to intervene on issues raised by him. The issue turned on how the Dáil’s rule-making Committee on Procedure and Privileges dealt with the two TDs’ statements and his complaints.
In sum, the Supreme Court found Mr O’Brien’s claim amounted to an indirect attack on utterances made in the Dáil. This was impermissible under the Constitution.
Yet there have been recurring concerns about fair procedures for non-politicians who faced criticisms at either committee hearings or in Dáil proceedings.
In April 2015, Sinn Féin’s Mary Lou McDonald was found by the Committee on Procedure and Privileges to have made comments of a defamatory nature and abused privilege.
But Ms McDonald stood by comments linking well-known retired politicians with illicit overseas Ansbacher bank accounts. The former politicians had vehemently rejected these claims and some challenged Ms McDonald to make them again without cover of Dáil privilege. But things simply fizzled out.
In late 2017 the Ceann Comhairle, Seán Ó Fearghaíl, rated as fair by all parties and none, sounded a big note of caution about Dáil privilege. “One cannot escape the reality that privilege is now a frequent issue arising for us now,” he said.
Previously, other TDs’ sanction acted as a break. “Now some consider it a badge of honour to be sanctioned by their colleagues,” he added.