Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
On Appeal Expands Expression
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The High Court of Ireland dismissed an application by wealthy businessman Denis O’Brien who sought to censure two Deputy House Members of Parliament over comments they made about him during a parliamentary investigation into the sale of an Irish company to one of his entities. O’Brien argued that the Members had abused their parliamentary privilege by disclosing financial information about him when he had already obtained an injunction preventing a TV broadcaster from revealing his personal banking details. He alleged that the two Deputies had disregarded the constitutional separation of powers between parliament and the courts and that their statements had amounted to an “unwarranted interference” in the judicial domain. The Court reasoned that neither the separation of powers as codified in the Constitution nor the administration of justice outweighed parliamentary privilege and that even when the exercise of privilege had severe consequences, the relevant actions still fell to be decided and administrated upon by the House and not the courts.
On April 30, 2015, O’Brien was granted an interlocutory injunction against the broadcasting company RTÉ. The order prevented RTÉ from publishing any confidential or personal banking information with the Irish Bank Resolution Corporation (IBRC). A full hearing was set for May 12, 2015.
On May 6, 2015, the Dáil (Irish Parliament) held a debate regarding the sale of Siteserv by IBRC to an entity owned/controlled by O’Brien. During the debate, Deputy Catherine Murphy made multiple statements regarding O’Brien and the sale of Siteserv, including the number of loans he had obtained from IBRC, that he was one of the bank’s largest debtors and that he had asked to pay off the loans in his own time at low interest rates. On three occasions the acting chairman of the House asked the Deputy not to use names.
On the adjourned interlocutory injunction proceedings May 12, 2015, O’Brien’s counsel conceded that the statements made by Deputy Murphy were already in the public domain, and the Court varied its original order to exclude the matters identified by her in the House.
On May 20, 2015, O’Brien wrote to the Ceann Comhairle (House Chairman) stating that Deputy Murphy “persisted in making false and inaccurate statements to the Dáil about my personal banking arrangements based on confidential information which she knew to have been stolen” and argued that she had deliberately abused parliamentary privilege. The matter was sent to the Clerk of the Committee on Procedure and Privileges.
On May 21, 2015, the High Court granted O’Brien’s interlocutory injunction stating that his privacy rights, as protected by Article 8 of the European Convention on Human Rights and the Irish Constitution, outweighed the contrary public interest argument.
Deputy Murphy continued to make statements regarding O’Brien. On May 27, 2015 she released a statement in response to the injunction stating that it had “serious implications for the freedom of press.” On May 27 and May 28, 2015 Deputy Murphy made two more utterances regarding Mr. O’Brien and his financial dealings. She also tweeted a significant portion of her statements. On both May 28 and 29, 2015 O’Brien’s solicitor wrote to the Ceann Comhairle about Deputy Murphy’s statements and requested that immediate action be taken to prevent her from making any further statements.
On June 2, 2015 the High Court updated the injunction once again in relation to Murphy’s statements. On June 9, 2015, Deputies Doherty and Murphy made more statements regarding O’Brien during a Dáil speech on the Draft Commission of Investigation (Certain Matters Concerning Transactions Entered into by IBRC). On June 10, 2015 the Committee on Procedures and Privileges met to consider O’Brien’s claims against Deputy Murphy and found that she had not abused parliamentary privilege. O’Brien read about this the following day in a newspaper report at which time he had received no communication from the Committee. The parties continued to correspond and the Committee stood by its statement that Deputy Murphy and Deputy Doherty did not abuse parliamentary privilege.
O’Brien filed a complaint against the Clerk of the Irish Parliament and the members the Committee on Procedure and Privileges claiming that the statements made on the House floor constituted undue interference with the Court’s proceedings and requesting declaratory relief. Deputies Murphy and Doherty, who made the statements complained of, were not joined individually to the proceedings at any point.
Justice Ní Raifeartaigh’s decision for the High Court focused on the importance of the separation of powers as codified in the Irish Constitution and the importance of parliamentary privilege in a democratic society.
Referring to Irish case law and jurisprudence from European courts and other jurisdictions, the Judge said it was clear that the courts, in policing the boundary between their functions and those of parliament, have been careful to ensure that legislation does not directly or indirectly interfere with core elements of the administration of justice, such as weighing evidence and reaching conclusions upon the law and evidence. The courts have also been careful to avoid stepping outside of the boundaries of their own constitutional role into a role exclusively reserved for parliament. O’Brien had relied heavily on the case of Buckley & Ors. v The Attorney General & Anor, a leading authority on the principle that Parliament may not enact legislation which directly interferes with the function of administering justice entrusted to the courts under the Constitution. However, the Judge distinguished this from the present case on the basis that, in Buckley, Parliament had sought to direct the courts on how to determine the proceedings which was “interference of a most direct kind with the administration of justice” whereas in the present case the members released information sought to be protected by the courts into the public domain, thereby rendering the judicial proceedings moot.
Nevertheless the Judge stated that the use of parliamentary speech to render a confidentiality action before the court moot was itself a significant action which had had a substantial effect on the judicial proceedings and that the “issue remains as to whether there was an ‘interference’ with the administration of justice and whether the courts have jurisdiction to entertain proceedings concerning the utterances.” She said that this raised the question of justiciability and went on to consider the parliamentary immunities and privileges contained in Article 15, sections 12 and 13 of the Constitution to establish whether the Court had any power over the regulation of such speech.
She referred to the Irish Supreme Court decision, Attorney General v Hamilton  3 IR 227 (“Hamilton No. 2”) on the scope of the privileges and immunities in Article 15 of the Irish Constitution. In that case, Geoghegan J. engaged in a detailed review of the origin and purpose of Article 15, sections 12 and 13 and compared them with the American Bill of Rights and several common law authorities from England, the U.S. and Australia. Geoghegan also noted that section 3 of Article 15 states that members ‘shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.’ Justice Ní Raifeartaigh also quoted Hamiltion No. 2 to the effect that a House member not only cannot be disciplined by the court for his utterances, but also cannot be forced to explain them to the court. Justice Ní Raifeartaigh went on to reference more cases in which it was held that it would be inappropriate for the court to intervene with parliamentary speech, save in exceptional circumstances, which she said were restricted and did not apply in the present case.
The Judge, again citing Hamilton No. 2 that “the privilege and non-amenability is absolute and intended by the Constitution to be absolute in the sense even that it cannot be sacrificed to protect other constitutional rights“, stated that neither constitutional rights nor even the administration of justice outweigh parliamentary privileges. She also referred to Denham J.’s opinion in Attorney General v. Hamilton  2 I.R. 250 (“Hamilton No. 1”) where she considered the protection of what falls under parliamentary privilege to be very broad because parliamentary privilege is recognized as being an important element of the democratic process. The Judge also reiterated that while the exercise of privilege would have consequences and some of those severe, these actions still fell to be decided and administrated upon by the House.
In Justice Ní Raifeartaigh’s concluding remarks, she stated that Article 15, s. 12 is not confined to documents as argued by O’Brien. She also dismissed his attempt to bypass parliamentary privilege by taking action against the Clerk to Parliament, the Committee on Procedure and Privileges and the Attorney General, rather than suing the members of the House who had made the utterances. She said the use of procedural loopholes did not detract from the immunity or privilege that existed regarding the matter. Similarly, the fact that declaratory relief was being sought made no difference and it would not be proper for the Court to grant relief. “The fact that declaratory relief was sought seems to me to be merely a device to try to soften the appearance of what in fact is being asked of the Court; the Court is being asked to take parliamentary utterances and subject them to judicial determination”, she said. Even giving the Court the ability to discern which parliamentary speech is considered legitimate versus illegitimate, would have a chilling effect on freedom of expression, she added.
The remaining limbs of O’Brien’s case concerned the actions of the Committee on Procedure and Privileges, which were found non-justiciable for similar reasons to those stated above.
On October 10, 2017 O’Brien was granted leave to appeal directly to the Supreme Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands protection by affirming the broad protection afforded by parliamentary privilege to political speech and limiting the court’s ability to interfere with it.
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