Counsel for Mr O’Brien Michael Cush said he would be making an application to vary the court order to allow the reporting of independent TD Catherine Murphy’s speech last week. He said it was never Mr O’Brien’s intention to stop TDs from speaking.
He also said Mr O’Brien intended to take fresh proceedings to ask the courts to establish the demarcation between the respective roles of the courts and the Oireachtas.
Counsel for RTÉ David Holland said the broadcaster had only heard of the application to vary the order in this respect in the few minutes before the hearing but he said it would be churlish not to welcome it.
To be fair though, that’s not quite the impression created on Thursday evening. Fintan O’Toole was in blistering form on the matter today:
Let’s remember that in all of this Murphy has been doing no more than her democratic duty. She is an elected parliamentarian – we pay her to do what she can to hold the State and its institutions to account.
That the persistence with which she has done this in relation to Siteserv is regarded as remarkable is a sign of how rare it is for a TD to take the job seriously. Murphy’s only agenda is the one that makes democracy function: to get some accountability for the use of public resources. If she can’t pursue that agenda we don’t have a democracy.
For O’Brien’s part, he’s pretty clear on his beef too:
Does it not matter whether what is being said is true or false? Does it not matter if there is a court order in place? I agree that Dáil privilege is an important component of our democracy; however, there is a parallel duty of care on the TDs and Senators to use this privilege with integrity under the guidance of the Ceann Comhairle.
He also went on to note that the Oireachtas has not exactly got a clean pair of hands in this regard:
What I find curious is that Deputy Martin would lambaste Sinn Féin TD Mary Lou McDonald for releasing the names of individuals wrongly associated with the Ansbacher tax-avoidance scheme.
I have never seen the Fianna Fáil leader as animated as he shot from both barrels last December in the Dáil at Deputy McDonald over the totally unacceptable releasing of alleged “Ansbacher names” of former cabinet and Fianna Fáil colleagues.
I have real sympathy for those named.
He has a point, although Martin was perfectly justified as a parliamentarian to seek redress against Deputy McDonald. This case has been rather more elemental than that.
And as O’Toole notes, there remains the question of public interest, and parliament’s right to pursue it:
The definition of excessive private power is that it ceases to be private. It has an impact on the public realm of democracy. Denis O’Brien has accumulated excessive private power. He has been allowed to take effective control of the largest Irish newspaper group and of two of the three national talk radio stations.
The Moriarty tribunal report shows how his private interests intersected in an unhealthy way with the processes of public decision-making. And now, of course, his desire to control what is said about him in the media and in the Dáil has created a constitutional crisis.
A judgment outlining the reasons why Mr Justice Donald Binchy granted a temporary injunction to businessman Denis O’Brien against RTÉ is to be published on Wednesday.
But none of this is strange or startling. It is the inevitable result of an individual having too much power. That individual will always see the democratic consequences of his exercise of that power as a purely private matter.
There is a parallel duty of care, but Dail privilege remains superior to the right of an individual citizen (one of the reasons perhaps the Irish public was unwilling to grant Oireachtas committees serious investigative powers).
Whether the information laid before the Dail proves to be true or false, sanction of parliamentarians remains with the Oireachtas.
And what about the reporting? Well, as noted above, Mr O’Brien has said he will take “fresh proceedings to ask the courts to establish the demarcation between the respective roles of the courts and the Oireachtas”. Constitutional crisis, over. For now.
A nation that asks nothing of government but the maintenance of order is already a slave in the depths of its heart; it is a slave of its well-being, ready for the man who will put it in chains.”
Alexis de Tocqueville