Seismic shift for solid ground of the Constitution

In plain English, article 15.12 of the Constitution says if something is said in the Dáil or Seanad then the media can report it without fear of legal action.

To put it officially: “All official reports and publications of the Oireachtas or of either House thereof shall be privileged, and utterances made in either House wherever published shall be privileged.”

The 27-word sentence is a central part of the democratic system and has stood firm for almost a century. But on Thursday the ground it stands on wobbled.

In an unexpected turn of events, a brewing controversy surrounding businessman Denis O’Brien’s banking arrangements with IBRC was raised in the Dáil by Independent TD Catherine Murphy, who has doggedly pursued the issue and other matters since late last year.

Despite being said under privilege it cannot be reported on in full because, Mr O’Brien’s lawyers contest, the information is covered by an existing temporary injunction he obtained against RTÉ a week ago.

The dispute means an “unprecedented” situation now exists whereby the constitutional right to parliamentary privilege and a court-ordered right to privacy of a private citizen are in a direct confrontation.

While this in itself may only interest a few, the case has potential implications for the democratic workings of the Dáil and transparency in this country.

Without the right to parliamentary privilege issues such as the penalty points saga — which led to the resignation of justice minister Alan Shatter and Garda commissioner Martin Callinan last year — would not have been highlighted.

The prosecution of three men in connection with the sexual abuse of 20 former pupils at the Sacred Heart College in Carrignavar, Co Cork, would also have been kept hidden were it not for Fianna Fáil senator Mark Daly’s use of privilege in August 2011.

It is not always plain sailing: The recent naming of prominent former politicians with Ansbacher accounts by Sinn Féin deputy leader Mary Lou McDonald shows the need to ensure that when claims are made that they are accurate.

However, even in such cases, the privilege system allows for a named person to make a complaint within two weeks and for the Dáil record to be amended by the committee on privilege and procedure if necessary.

The current dilemma brings this ability to provide the public with information into question. While Ms Murphy has a right to outline details — which officials put up on the Oireachtas website in video and transcript format and have “no plans” to take down — it is unclear if Mr O’Brien’s injunction means the media can report on it as the injunction relates to the same information.

Constitutional lawyer and UCD lecturer Paul Anthony McDermott said the current de facto gagging of Dáil reporting is “unprecedented”.

He said it is “utterly unclear” whether the Constitution or the court ruling should be obeyed, adding that while there is an onus on politicians to use the “incredible power” of privilege “correctly”, he cannot think of a case “where there is such an acute clash”.

It’s unprecedented here, but you don’t have to look far to find another example.

In October 2009, The Guardian was prevented from reporting a specific UK parliamentary debate for legal reasons which it said were “Kafkaesque” and called into question 321-year-old free speech rights.

“Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret,” it said.

That case involved super-injunctions successfully sought by the rich and powerful, with the protected information eventually published in full after lengthy legal battles.

It is unclear whether Thursday’s Dáil event will result in the same outcome.

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