O’Brien judgment is a blow in favour of free debate

Denis O'Brien's most recent High Court case concerned Dáil statements made after he had obtained injunctions ordering RTÉ not to publish the very information contained in those statements.

Yet to anyone not a constitutional lawyer, the outcome of the case might seem as clear as daylight. The Constitution states: “The members of each House shall...not, in respect of, any utterance in either House, be amenable to any court...” One can imagine an impatient judge saying: “What part of ‘not’ do you not understand, Mr O’Brien?”

As ever, there is more to it than that. But, undoubtedly, the main theme of Ms Justice Úna Ní Raifeartaigh was a strong statement of the principle of free speech for elected representatives of the people. This is an idea with roots in bygone centuries, which saw the development of a parliament which was not cowed by the king or barons.

But when one contemplates the scandals in the Garda, monopolies in the news media or the housing crisis, who dares say that today we have no need of such a space, where there can be free discussion, unimpeded by gagging writs and expensive and protracted litigation?

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In this context, notice that this is the latest of a line of four recent cases, at High Court level, in which, to put it tersely, the Oireachtas withstood attempts to clip its wings.

It may be objected, as Mr O’Brien did, that the constitutional provision quoted at the start gives an enormous power which may be abused.

Safeguards

Yes, indeed; so may almost all powers. The most that can be done is to provide safeguards, which minimise abuse.

There is a fair chance that through this rigorous, if admittedly random, process, a chancer would be exposed, worst of all, in front of his electors

In the case of the Oireachtas, first, all the statements have to be made in public and are open to refutation by other members and to review by news media, which are fairly cynical about politicians.

There is a fair chance that through this rigorous, if admittedly random, process, a chancer would be exposed, worst of all, in front of his electors.

Secondly, since 1995, the Committee of Procedure and Privileges has had power to impose very limited sanctions on members who defame or infringe the privacy of any person.

On a technical level, Mr O’Brien’s main argument was based on the fact that the statements made by the two deputies released, as the judge said, in a deliberate and considered way, information about his banking affairs.

Yet this was the very information which he had secured an injunction to stop being published. This, it was contended, amounted to an unwarranted interference in the judicial field.

Now this is not a small thing: naturally, courts take seriously any defiance of their orders, treating it as one form of contempt of court.

But, in making this argument, Mr O’Brien’s lawyers faced two hurdles. First, does interference in the judicial field, as protected in the Constitution, extend as far as defiance of a court in an individual case?

To take a somewhat similar example,there has been a good deal of ‘stir’ around the forthcoming jury-trial of persons accused of false imprisonment of the then tánaiste in a water charges protest. But I have not heard it suggested that any attempt to interfere with this trial would be actually unconstitutional.

Secondly, even if this hurdle had been jumped, the situation arising would be that there were two parts of the Constitution in conflict with each other: the provision quoted earlier and the general provisions protecting the courts.

Naturally, such a contrast is never easy to resolve. But in this case, it went in favour of the Oireachtas immunity provision, seemingly because this provision was directed to the existential issue of the courts’ jurisdiction.

Money-power

It is reported that Mr O'Brien is considering an appeal. Somehow the situation recalls an episode recounted in The Richard Burton Diaries. For younger readers, Richard Burton was a famous and fabulously wealthy Welsh film star (though older readers may think this is a bit like calling the pope "a South American Catholic").

We shall see what a display of legal money-power will do

Like Mr O'Brien, Mr Burton loved his native land but chose to reside abroad. In particular, Mr Burton tried to help his poor family in Port Talbot, in one case by financing litigation brought by his brother-law who was in dispute with his landlord.

Mr Burton’s diary entry on this incident records: “We shall see what a display of legal money-power will do.”

The Oireachtas Committee on Procedure and Privileges now knows how the Port Talbot landlord felt.

There is another rather closer analogy. One of the major strands in the inquiry being carried out by the Charleton tribunal into the treatment of Sgt Maurice McCabe is whether senior gardaí carried out a campaign to “bad mouth” him.

A big source of evidence on this point will be whether, to this end, there were unattributable briefings given to journalists, by senior Garda officers.

It was reported last week that several news media outlets, including The Irish Times, are seeking to be represented before the tribunal. The reason for this is that they want to be in a good position to argue in favour of journalistic privilege against disclosure of their sources.

On the other side, the tribunal has a divergent, but equally legitimate interest, namely that without their evidence on this point, it cannot properly carry out its duty.

Here is another hot potato, involving a conflict between two major and legitimate heads of the public interest and it may end up before the courts for resolution.

Judges are guided, in varying degrees, partly by precedent and partly by their own instinct for what is best, or least worst, in the public interest.

Whatever their decision, someone who commands plenty of media coverage, is bound to be disappointed. Theirs is not an easy job.

David Gwynn Morgan is a professor emeritus at University College Cork