Clash of court order and Dáil privilege presents ‘constitutional crisis’

The disclosure by Catherine Murphy under Dáil privilege of Denis O’Brien’s banking affairs after the media was prevented from doing so by a court order presents a constitutional crisis, criminal law expert Paul Anthony McDermott has said.

Mr McDermott said the “direct clash” between the court order and the constitutional protection afforded to Ms Murphy while speaking in the Oireachtas could have wider implications for public faith in the courts.

“I can’t think of a situation where there has been such a direct acute clash between a court saying to RTÉ ‘you can’t report something’, and then within a couple of days, someone purporting to reveal the same thing from the floor of the parliament,” he said.

“Clearly the court will be concerned their orders are complied with. You can’t have a situation where anybody who gets a court order now will be worried ‘what’s the point if somebody can go into the Dáil or the Seanad and just give the information out anyway’.

“I would be a big supporter of freedom of the press but at the same time, if the court rules, you have to play by the rules. If you disagree with the ruling, you can appeal it, but once the court has made a ruling, it has to be respected because otherwise it’s damaging to the court system.

“I think that’s the real danger here that people will feel in the future is there any point litigating or going to court if all someone has to do to get around it is use Oireachtas privilege.”

Proper policing

In terms of what might be done to remedy the situation, Mr McDermott said the Oireachtas must properly police itself on the matter.

“I’m not sure there’s much the Government can do because it’s a constitutional privilege,” he said. “The real remedy is for the houses of the Oireachtas to make sure they are policing it properly, because, if someone goes to Strasbourg, the privilege will only work and will only be upheld ultimately if the Oireachtas is seen to police itself.

“What could happen is someone could go to Strasbourg or the European Court of Human Rights and in effect ask it to look at our legal system and say ‘this is an unusual system where you have this incredible privilege whereby anything can be said about you in parliament, but on the other hand you have absolutely no remedy if it’s false, if its defamatory, if it’s in breach of your privacy, other than to make a complaint to the Oireachtas.’

“There could be a referendum and the privilege could be removed or cut down. That’s probably the only remedy you could have because it’s in the constitution, but I don’t know to what extent there’s any appetite for that because the public may be perfectly happy with the current position.”