O’Brien gets an answer from the High Court on the supremacy of parliamentary privilege…

So it’s all over, eh? I mean the O’Brien thing not the Sepp Blatter thing. [That’s a mess which is only just beginning – Ed]

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

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  • JohnTheOptimist

    So, the latest ‘crisis du jour’ wasn’t a crisis at all. Expect more of these phoney crises from left-wing politicians as the economy recovers strongly. The ‘Left’ in Ireland has staked everything on the recession lasting at least until the next election. But, clearly it hasn’t. The Republic’s economy is now the fastest-growing in the EU. The next set of GDP figures will confirm this beyond all doubt. The Red C poll last Sunday showed that the economic rebound is swinging voters back to the establishment parties. The Left’s hopes of power are evaporating. So, I expect more stunts like the one Catherine Murphy pulled. That’s not to say that wrongdoing should not be exposed by the Dail. Clearly, it should. To this end, I suggest that there should be a Dail investigation into involvement by the Workers’ Party (the political wing of the Official IRA) in armed robberies and beatings in the 1970s and 1980s.

  • Jag

    Spot on there John, and shura, wasn’t that what Denis O’Brien was saying anyway, that Deputy Murphy was pursuing “notoriety and political advantage” and she has “a desire to distort” the facts (both quotes from yesterday’s platform piece by DOB published in the Irish Times, reproduced in the Independent).

    Mind you, Deputy Murphy has been pursuing notoriety for a long time, it was September last year before the spurt in GDP became known, that she started seriously digging at Siteserv. And her digging has revealed the Department of Finance shared her concerns about Siteserv and has directly led to the present controversial inquiry of IBRC’s dealings with Siteserv (Denis O’Brien’s company). Bad Catherine, bad.

    Or to dispense with the sarcasm, it’s patently ridiculous to claim that Deputy Murphy started pursuing her concerns about IBRC’s dealings with DOB for political advantage. She started it in earnest 18 months before the next general election at a time when the economy was still shaky. Maybe next you might suggest the Independent TDs Mick Wallace, Luke Flanagan and Clare Daly rose the Garda penalty points scandal 30 months out from a general election just for “notoriety and political advantage”. Ridiculous and stinks of “attack the messenger because the message is unassailable”.

  • ronanpeter

    Please don’t fall into the trap that GDP represents anything close to a catch all metric to assess the health of an economy. It is used by the media and politicians for particular spin but it is hugely flawed. It is one of many measures that needs to be considered, including relative debt levels, interest rates, the reliance on QE, inflation (or lack of it) and many more.

    One article to consider here is http://www.economist.com/blogs/graphicdetail/2015/05/daily-chart-4?fsrc=scn/tw/te/bl/ed/debt

    Ireland possesses one of the highest debt to GDP levels in the world, albeit skewed by hosting a lot of indebted financial companies. this makes it extremely vulnerable to any economic shocks. Such a shock could be caused by something as boring as returning to what would be considered historically normal interest rate levels in Europe.

  • mickfealty

    The trouble is that Mary Lou’s earlier misconduct gives him exactly the excuse he needed to go after Deputy Murphy in that way Jag. Such blatant cynicism gives rise to cynical responses.

    As for whether or not it was a stunt, we’ll know in the fullness of time. I must say I find the assertions from Dukes and O’Brien that the figures are wrong more than a little disconcerting.

    Mick Wallace is no shining angel himself, but he has done the state some small service,especially around the business of AGS whistle blowing.

    The problem as I see it is about money, its perceived influence and Ireland’s general cultural quiescence (call it secular Catholic guilt if you like).

    The indirectness with which the crash and its causes have been dealt with means we also suffer from a poor sense of what’s gone wrong, continues to go wrong and how it might be put right.

    Elaine Byrne’s book on Corruption essential says that Ireland had no real defence against corruption because its founding fathers did not believe that they were the corruptible types.

    How do we move from a situation where people can enjoy ‘warranted confidence’ in their institutions? When can people be certain that the ways in which society fell apart during the boom will not happen again?

    And, perhaps, how do we sufficiently curtail the perceived public power of individuals such that we avoid the kinds of moral panic we’ve seen over the last week?

    That’s an issue for all Irish institutions and political opportunists, alike.

  • JohnTheOptimist

    It is one of the mantras of the Left in Ireland and the Dublin 4 chattering classes that Ireland is uniquely corrupt. Frequently, among the same people this is linked to the fact that it is traditionally Catholic. The Gold Standard for measuring corruption globally is the Transparency International corruption index. These are their results for 2014:


    Ireland ranked 17th least corrupt in the world, and 9th least corrupt (out of 28) in the EU. The UK was 14th least corrupt in the world.

    As for “what’s gone wrong, continues to go wrong”, one could say that about any country. Ireland had the highest growth rate in western Europe almost every year between 1990 and 2007. There was then a global recession. I emphasise the word ‘global’, which many commentators in Ireland don’t seem to understand. Since 2012 Ireland has resumed its position as the fastest-growing economy in western Europe. If forecasts by the OECD and Eurostat prove accurate, this will continue until 2020 at least. If these prove accurate, then in the 30 years between 1990 and 2020, Ireland will have had the fastest economic growth in western Europe in 25 of them. If that’s ‘going wrong’, let it continue to ‘go wrong’.

    As for wrongdoing by individuals, My rule is quite simple. Everyone is innocent until proved guilty in a court of law by a jury of their peers, not when they are fingered by a politician in the Dail, anxious to make a name for themselves in the run up to an election. I apply this rule, not just to Denis O’Brien, but to politicians like Gerry Adams, Catherine Murphy etc, who have been members of political parties that were linked to paramilitary organisations.

  • Jag

    “how do we sufficiently curtail the perceived public power of individuals such that we avoid the kinds of moral panic we’ve seen over the last week”

    We have all the elements of the system we need to hold power to account – democratic parliament, media, judiciary – and ensure there are checks and balances in our democracy. The “moral panic we’ve seen over the last week” is the direct result of RTE’s failure to get its ass down to the High Court in Dublin within hours of Deputy Murphy making her speech for a declaration that reporting the speech would not conflict with the earlier injunction. Given the “what are you on about at all, at all” tone of Judge Binchy’s hearing yesterday, RTE would have had their belts-and-braces declaration by 4.30pm last Thursday and the “moral panic” would have been averted. Stupid, stupid RTE, who now deserve a hard kick up the transom so that they behave with more alacrity next time.

  • Jag

    ” I must say I find the assertions from Dukes and O’Brien that the figures are wrong more than a little disconcerting.”

    Well, people will say of Denis O’Brien, “he would say that, wouldn’t he” but Alan Dukes enjoys a towering reputation, and remember it was Fianna Fail’s Brian Lenihan who appointed FG stalwart Dukes to the board of Anglo, such is the general level of regard with which Dukes is held. So, I’d agree with you.

    But it should take someone five minutes to check on Deputy Murphy’s allegations, which if correct, are certainly of great public interest.

    For chrissakes, someone just needs root out DOB’s bank statement for 2012, look at the loan principal, look at the interest charged, divide the interest by loan principal to get the interest rate, see if it’s 1.25% or 1.26% or whatever. Then see what the interest rate provided for in the loan agreement says (it will be base plus margin for business lending) and check that for 2012. Five minutes is all it takes. And if DOB was paying, say 5%, and the interest rate per his agreement was 5%, then brouhaha over and we can turn to Catherine Murphy TD and give her both barrels for leading us on a wild goose chase.

  • ronanpeter

    “As for “what’s gone wrong, continues to go wrong”, one could say that about any country. Ireland had the highest growth rate in western Europe almost every year between 1990 and 2007″

    Again. The fascination with growth is a recent phenomenon and its shelf life is close to expiry.


    To take your big headline grabbing growth rate between 1990 and 2007 and add some context. This growth has not been shared across all sections of society in Ireland. http://www.tasc.ie/publications/cherishing-all-equally/

    Why? Low taxes for the owners of capital (28% of GDP is taxes, the lowest in the EU), low pay for workers primarily. However the underlying economic model for the growth you have cited also plays a fundamental role, that is, you would likely not have seen the levels of growth through 1990 to 2007. That is where there is a bigger historical picture in play.

    The impact of this inequality has been unequally distributed also as public services are hollowed out due to a lack of investment and state assets are sold off to private companies to fill short term funding needs. Manifest problems of unequal societies include higher rates of drug addiction, obesity, poorer wellbeing for children among many more.

  • mickfealty

    The thing that raises this above cheap politicking is her call for the ACG to get involved. That would certainly tell us a great deal more. Mary Lou’s was an abuse of privilege to throw the press pack off the trail of her own leader, Deputy Murphy seems to have a rather different focus to her inquiry.

    And I’m afraid five minutes won’t do it. I mean it will for the clacking knitters waiting for the arrival of another Aristo at the Guillotine, but it won’t actually tell us anything we should know about the context of any such deals. How general were they? What processes were engaged to make them happen?

    Five minute tabloid investigations of the type you’re proposing do sell papers, they can even launch political careers but they generally leave the rest of us in the dark. That might be a good enough standard for you, but I’d be looking something a bit more thorough.

  • mickfealty

    I think that’s more than a tad misleading Jag. Maybe three hours from utterance to conclusion in the High Court is a little too much to reasonably expect.

    This is where the de Tocqueville quote comes in. A democratic parliament is not a ‘thing’ that ‘does’ a ‘thing’, it’s made up of people who choose either to speak, or not.

    So let’s be clear moral panic arose from a wealthy businessman making it clear that he did not think a deputy has the right to raise questions about his private business in parliament. “Putting manners on one” I think the term is.

    And a broader misconception within the media (including RTE) that the constitutional guarantee might act insufficiently in the face of a direct injunction from that court.

    The tone from O’Brien changed over the weekend. And in particular after Micheal Martin gave his spokesman James Morrissey a bit of a civil thumping on RTE’s This Week.

    RTE’s actions were in fact perfectly prudent given they had concerns over being held in contempt. The Broadsheet and others (including ourselves) had no such burden.

    I haven’t seen the detail on the nature of the order from the court except to say that there were some reports that the full order had not been furnished to RTE even by the weekend.

    Parliament is worth diddly squat if it’s parliamentarians opt for the quiet life, it can quickly become “a slave of its well-being, ready for the man who will put it in chains.”