Denis O’Brien, Dail Privilege & why it’s not so simple

The thorny question of parliamentary privilege has been bubbling away under the surface in Ireland for a while now. It is set to become a central issue with the case Denis O’Brien will take against an Oireachtas committee. At the moment it is very ‘street cred’ to oppose anything O’Brien says or does. However, we do perhaps need to be a little bit more careful about the conclusions we jump to. Whether or not we like the individuals involved or the set of circumstances we must be aware that we are setting precedents for the future.

In other jurisdictions such as the UK, Australia, New Zealand and Canada there has been much discussion of the topic of privilege. There have been a number of cases surrounding it too. At its core it’s very simple. Parliamentary representatives have absolute privilege when speaking in the House. In other words they cannot be sued for what is said. Now, elsewhere we have seen circumstances where the member might not be sued but the person who prepared the answer might be. Other countries introduced a right of reply to allow injured parties a chance to redress the damage. This has led to further questions such as whether that party then has privilege and whether it’s worth it as once the claim is made the reply rarely gets the same attention and the damage is done.

Our TDs have this right in order to protect the public interest. There may be things that one could never say without having the protection of privilege. It allows representatives speak freely and it is an important fundamental principle that we cannot afford to lose. On the other hand we must ask why Courts exist, why defamation laws exist. They are there to protect an equally valuable right. The right to your good name. The right to stop someone spreading disinformation about you and the right stop an outright lie. These protections are important whether we ever find ourselves having to invoke them or not. Their very presence makes people aware that you cannot just say anything you like without having a very good reason and being on sure ground. Let’s face it we would be very annoyed if a TD made personal allegations about any of us that were untrue. We would demand justice. If a TD picked on a single water protester and made wild allegations about them would we feel it’s alright? Would we say the protestor should just accept it because the TD has a fundamental right to absolute privilege?

It is the balancing of these two rights that is difficult. We had two separate cases in recent months with two different outcomes. Mary Lou McDonald made allegations against several former politicians on the basis of a single file presented to her. Many felt this was a distraction technique to avoid pressure on SF on other issues. McDonald was roundly condemned for this abuse of privilege. It suited all the other parties to condemn her for it. To be fair they did have good grounds. TD’s must be careful with the power of privilege. It is a right only to invoke when one is sure, not to be used every time somebody hands you an allegation. It is a right to be used only after extensive research and corroboration of the comments. The Oireachtas committee tapped the knuckles of Mary Lou and that’s that. No big deal in the scheme of things and Mary Lou was, quite rightly, not too bothered.

Shortly after however Catherine Murphy made a series of allegations in the Dail. Now Murphy is widely recognised as a strong and fearless TD. She is also a considered and calm politician, well respected in the house by all sides and with good reason for that. The allegations she made were based on information she received about loans Denis O’Brien had with IBRC. Allegations that had found their way to RTE but had been halted by the courts. O’Brien said that the figures quoted were incorrect. That they breached privacy rules and, oddly, it is also seemed that they focussed excessively on him when there was a long list of loans at IBRC which might also have had a similar approach to resolution.

So, what if the information was incorrect? Was there any attempt to understand or appreciate O’Brien’s side of things? Well no. I mean why would we? Isn’t he a billionaire? Isn’t he involved in Irish Water? Why on earth would anyone want or need consider his position on things? Nobody sought to ask where the information was coming from, if it was right that it was leaked, if it was accurate. Anybody that would suggest such things will be dismissed either as a ‘shill’ or as grossly naive to the dangers of powerful interests etc. I am sure that’s what will be said at end of this article too.

The problem is though that it all makes me uneasy. It makes me uneasy because the Oireachtas Committee dealt differently with Catherine Murphy and Mary Lou McDonald. As far as I can see the two cases were very similar. It was the reaction of the politicians that differed. What suited in one case did not suit in another. So that leads me to a realisation that there is a new rule at play here. If you are well liked and popular then the law shall protect you. If, however, you can be debased and besmirched enough to make the public dislike you then all laws should be suspended and it can be a free for all. Now I know all will say ‘but Johnny O’Brien can afford it, he has access to lawyers etc’ but that’s exactly the point. If it can be done to a figure like O’Brien then it can be done to anyone. It just gets easier when you get down to the people without resources.

The Oireachtas will have to consider privilege again. I have no doubt that the right to it should remain paramount. I am firmly of that view. That said TDs must be careful of the precedents they set. Whether Denis O’Brien is rich or whether he is popular should not matter. It should not matter because if it does then it will have repercussions for all of us. It would be a dangerous world where someone can engineer a situation to make us some kind of outcast and then having done so have the ability of stripping us of our rights and destroying us. Of course I am being over the top aren’t I? That would never happen in a modern country.

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  • Jack Stone

    In my opinion, the ability of members of the Oireachtas to raise matters of public value without the chilling effect of defamation law is an important protection of western democracies based on the common law and dating back to the English Civil War. So, while the actual members of both houses have LEGAL immunity to say whatever they want, there is not the same protections for the press in their reporting of what is said under privilege. In current legislation, it is clear that there is no absolute privilege for reporting the Dáil. If there was then there might be an argument to allow privileges for reporting the Oireachtas (there used to be until 2009 i believe). But I believe reporters should be held to a high standard as a public institution and courts should have a place in personal defamation.

  • burnthequango

    Great to see a sensible and balanced piece. We are in an era of populism where anti-capitalist and anti-business forces are stronger than normal. This is understandable but we can not allow the Dail to become a platform for such and while freedom of speech is key there has to be consequences of making incorrect statements. It should be no different than the decision a journalist takes ahead of publishing an article. The Ansbacher incident was important. It did not involve someone(s) that were unpopular yet there was no consequence despite the information being shown to be incorrect.

  • Jag

    Two competing rights which have evolved and been established over a long period of time. Dail privilege trumps individual privacy. The press must make clear when reporting Dail proceedings that they are re-reporting statements, and not presenting Dail claims as facts (didn’t the Sunday World come a cropper a decade ago when it did just that after Peter Robinson made some deeply damaging claims about a Belfast developer).

    If the TD making the claim later turns out to have peddled a falsehood then the TD faces the reaction of their constituents.

    When MLM made claims about certain public figures and tax evasion, the public officials reacted and robustly rejected the claims. Who did the public believe? I think the public sided with officials and MLM lost a little credibility (just a little, some people will think she was going for glory, others will think she made the statements in good faith).

    As for DOB, first off, for the Nordies, he owns 29% of the company which publishes the BelTel (biggest circulation daily newspaper because it gives away so much even if the Irish News outsells it), Sunday Life, Sunday World and some regional papers. Down South, he owns the largest chain of petrol stations, a private hospital, some prime real estate, the INM press group, the Communicorp radio group, which operates a number of stations including the influential Newstalk and TodayFM, and a services company, Siteserv which is installing water meters and selling modular housing. He also controls a mobile phone company operating in the Caribbean and south Pacific. He’s a billionaire, apparently.

    His wealth alone would make him a prominent and monitored figure, but what makes him particularly divisive (and Mick, I’m being careful here), in the 1990s, he won the competition for a mobile phone licence in the South. In a subsequent public inquiry, the Inquiry found that the licence was won in a competition where DOB had been assisted by the FG minister in charge of the licence award. The tribunal found that DOB paid the minister around €1m. The tribunal didn’t find there was corruption, and the tribunal findings were disputed by DOB. However, some people, perhaps many or even most believe there were shenanigans.And some people remain unhappy with how the FG government has, since 2011, been present whilst DOB’s fortunes blossomed during the recession

    (1) Immediately after coming to power, the govt lowered the VAT rate on newspapers which benefits DOB to the tune of around €15m a year. The reduction was supposed to stimulate employment, yet INM has shed 100s of staff since.
    (1a) State-owned or partly controlled banks wrote off in 2013 more than €100m in debt owed by INM. Today INM has surplus cash of around €40m and is highly profitable.
    (2) The state-owned bank, IBRC, sold loans which controlled Siteserv in controversial circumstances that are now the subject of an inquiry. There were competing bids which were apparently higher than that offered by DOB.
    (3) Shortly after DOB took control of Siteserv, it was awarded a contract, in an open competition, to install water meters.
    (4) DOB acquired a private hospital, and shortly afterwards, the government panicked people into buying private health insurance, or face loading on premiums in future.
    (5) The state-owned bank IBRC sold loans which controlled the largest petrol station chain to DOB. The chain was awarded the contract, in open competition, to supply state agencies.
    (6) There are allegations made under Dail privilege that DOB was gifted favorable interest rates on his loans at the state-owned bank, DOB rejects this, but there is presently an inquiry examining this and other concerns.
    (7) In 2013, Enda Kenny came back from Davos raving about the communications sector in…… Burma! And at the same time, DOB was pursuing a mobile phone licence in…..Burma! In 2012, at Davos, Enda met with three heads of State, one was the Haitian president, Haiti being DOB’s biggest market for his Caribbean mobile phone company.
    (8) In March 2011, the tribunal referred to above published its final report. It was immediately referred to the police by the government. It took Enda Kenny six months to say he accepted the tribunal’s conclusions. The govt promised the report would not gather dust. Five years later, to most people, it appears as if the report has been buried.
    (9) Earlier this year, the government proposed changes to media ownership, in common with most advanced countries, to stop an individual amassing too much control. DOB presently controls 29% of INM press & 100% of Communicorp radio. However, the government decided not to make limits on ownership retrospective.
    (10) Amid the greatest housing crisis ever experienced in Ireland, which has been largely caused by government policies, the government is now deciding to buy lots of modular homes, and DOB’s Siteserv is in the running for the bidding apparently.

    Maybe the Southerners are being paranoid, but you know, being paranoid is a good thing when someone is really out to get you!

  • burnthequango

    So your point is that someone can make up a supposed fact in the Dail and suffer no consequences because the public will make up its mind about whether it’s true or not. Interesting approach you have there…”Don’t believe everything you read in the newspaper” now is replaced by “don’t believe everything you hear in the Dail”. At least the UK tabloids do their homework. The amount of factually incorrect information in the newspaper in Ireland is atrocious.