Two troubling legal stories uncover important weaknesses in Ireland’s democratic accountability mechanisms

A couple of interesting law related stories came out of the Republic last weekend. One was the ticking off the Dail’s PAC got from the High Court when several members were to have, in the words of Elaine Byrne (€) to have “broken its own rules with impunity”.

She cites former Labour Party chair of the Banking Inquiry Ciarán Lynch:

Can’t say that this ruling comes as a surprise considering how the PAC chose to ignore its own legal advice @RTENewsNow asking questions laden down with personal value judgments is an expression of bias and totally useless as a means to gather evidence https://t.co/DGM1RUqS8x

— Ciarán Lynch (@CiaranALynch) February 27, 2019

This puts some heavy hitters on the wrong side of the law, including Fianna Fáil’s Marc McSharry and John McGuinness, and Minister Shane Ross, who is presently stuck trying to get his reform of Judicial appointments through the Oireachtas. And Mary Lou McDonald.

It is unusual for the courts to cross the separation of powers threshold, but it found that the abuse of privilege arose from a poor understanding of the limits on its powers, making this committee now, as Byrne argues, “an accountability eunuch”.

The bigger headlines detail the falling of Denis O’Brien’s case against the Sunday Business Post. This is also has important implications for democracy (which depend as much on the honest reporting of all sorts of matters free from fear or influence as elections).

This case tied the paper down in an action which lasted a full four years. This has to have been expensive and a hell of a strain on the papers current account. Many editors facing libel often take a view that it is never worth the hassle.

But as Eoin O’Dell notes (scroll down for the link to a free Word copy of his SBP oped), this case was eventually dismissed in court on the fairly simple grounds that there was no libel in the first place.

This is a failure of the governance structures set up by the 2009 act, he argues: not least  the independent Press Council set up under that legislation is supposed to weed out cases like this early on.

A key weakness spotted by John Felle is that while it is recognised in legislation, the Press Council is not a statutory regulator. This means that it is in no position to ensure a relatively quick (and inexpensive) resolution of defamation cases. O’Dell observes…

…a determined plaintiff can still reach the High Court. The only real disincentive is being liable in costs. O’Brien could now face a legal bill fo up to €1 million. That would soften the cough of many plaintiffs, though not perhaps of a billionaire businessman.

On the other hand, had this newspaper lost, costs of this level, and a potentially high damages award, would have imperilled its very existence.

ADDS: These are two serious weaknesses in one of the most important aspects of democracy: accounting mechanisms both within parliament and without. A properly regulated press has to be responsive to any reasonable request for corrections or a retraction. But as it stands if you have deep enough pockets you can cause a lot of financial damage on the flimsiest case. To fail on the first test at high court level suggest the system is weak, costly and ineffective.