High Court: O’Brien case against the Dáil non-justicable due to separation of powers

About this case:

• Judgment:
  External link

Rejecting Mr O’Brien’s arguments, Ms Justice Úna Ní Raifeartaigh held that the case was non-justicable due to the separation of powers between the Oireachtas and the courts under the Irish Constitution.

Background

In April 2015, Mr O’Brien obtained an interlocutory injunction from the High Court in order to protect certain banking information which he anticipated would be broadcast by RTÉ as part of a documentary concerning Irish Bank Resolution Corporation.

Subsequent to the granting of the injunction, two members of Dáil Éireann revealed most of the information the subject of the injunction by way of utterances on the floor of the House.

As a consequence, Mr O’Brien was forced to concede on successive dates before the Court which had seisin of the injunction proceedings that the orders made had to be substantially varied, until a point was reached when almost nothing was left covered by the injunction.

Mr O’Brien lodged written complaints relating to the utterances with the Dáil Committee on Procedure and Privileges – which ruled that the Deputies had not breached the relevant Dáil Standing Order.

High Court

In the High Court, Mr O’Brien sought a number of declarations to condemn both the utterances of the Deputies and the rulings of the Committee; arguing that “the members overstepped their proper constitutional role and trespassed into the judicial domain when they revealed, on the floor of the House, private banking information which was the subject of an interlocutory injunction” – by doing so, “the Deputies upset the proper equilibrium established by the Constitution as between the Oireachtas and the courts, and that the Court should step in to restore this equilibrium”.

The defendants – i.e. Members of the Dáil Éireann, Ireland, and the Attorney General – argue that, for the Court, that the matters in issue are non-justiciable and that to entertain the proceedings would itself constitute a breach of the separation of powers provided for under the Constitution.

Thus, a distinctive feature of the case was that “each side invokes the concept of the separation of powers as supporting its arguments”.

Sitting in the High Court, Ms Justice Úna Ní Raifeartaigh was cognisant of the fact that the case brought by Mr O’Brien raised important issues as to the role of the Court in cases involving a breach of the principle of comity.

As such, Justice Ní Raifeartaigh defined one of the questions to consider as whether “an individual is entitled to invoke the jurisdiction of the courts where a member of the Houses of the Oireachtas has engaged in utterances which, if spoken outside the House, would constitute a breach of a court order obtained by the individual?”

Justice Ní Raifeartaigh described the issue as having wider implications than Mr O’Brien’s particular circumstances, which would “arise whatever the private nature of the information published, be it information relating to a person’s banking, taxation or other financial affairs, health or medical matters, relationships or sexual disposition, or any other information of a private and confidential nature”.

“If a court order prohibits certain information from being published, and a member of the Dáil then publishes the information on the floor of the Dáil, has the Court any jurisdiction to entertain proceedings with regard to those utterances, or with regard to subsequent proceedings of the Committee on Procedure and Privileges arising out of a complaint in relation to those utterances?”

Separation of powers

The separation of powers under the Irish Constitution involves a distribution of governmental power across three branches of the State in which there are certain inevitable points of tension as between the different organs.

According to Justice Ní Raifeartaigh, the language used in the Constitution “signals the importance with which freedom of speech in the Oireachtas, and therefore in the Irish democratic state, was viewed” and therefore none of the issues in Mr O’Brien’s case could be justiciable in the courts.

It is clear from the constitution that the Courts “do not have a role in policing parliamentary utterances except, perhaps, in some extremely exceptional and limited circumstance of which the present case is not one”.

Justice Ní Raifeartaigh added that the case might throw a light on the need for a general examination of this area by a Committee… “which would take into account a wide variety of factors and would not be confined to the facts relating to a particular case”.

While the Court has declined to enter upon an analysis concerning the parameters laid down by Standing Order 57, Justice Ní Raifeartaigh said that “at the most general level… there seems be at least some ambiguity and lack of clarity as to procedures and parameters concerning speech potentially trenching on sub judice matters”.

Justice Ní Raifeartaigh was satisfied that the case could not proceed any further in the Court, and that “any such discussion as to the future of the sub judice Standing Order could be progressed in the public arena and within the Houses of the Oireachtas”

Justice Ní Raifeartaigh held that “judicial intervention in this area would not constitute the restoration of a constitutional equilibrium disrupted by the parliamentary utterances, but would itself constitute a disruption of the equilibrium established by our Constitution”.