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.