O’Brien uproar is a failure of courage, not a constitutional crisis

It is an essential public interest that the proceedings of the Oireachtas are reported, writes Gerard Howlin

O’Brien uproar is a failure of courage, not a constitutional crisis

Last Thursday when Catherine Murphy made her Dáil speech — the subject of much controversy since — only 24 hours had passed since the former Financial Regulator, Patrick Neary, attended the Banking Inquiry. Much has been made of the dysfunction of responsibility between him, and the former Governor of the Central Bank, John Hurley.

But the governance and effectiveness of the same Oireachtas conducting that enquiry makes the antics within the Central Bank seem a model of clarity. It is nominally presided over by a Ceann Comhairle — an office institutionally so weak, it is not fit for purpose.

Real power lies between the Oireachtas Commission responsible for its resources and the Committee on Procedure and Privilege (CPP) responsible for the rules of the House.

Its entirely ineffective sanction of Mary Lou McDonald is case in point. CPP ruled her comments in relation to named persons’ financial affairs, including prominent former politicians, was “defamatory under the definition in paragraph (11) of Standing Order 59”.

“The Committee further decided by unanimous decision that the utterances were prima facie an abuse of privilege.” She has never recanted, and no effective sanction was ever imposed.

In failing to provide a remedy the State is now exposed to a case being taken under the European Convention on Human Rights, either in that instance or in relation to Denis O’Brien. The right to speak in parliament, and to have those proceedings reported, is not balanced by any available recourse to justice, for those wronged. This is now the real constitutional crisis.

I never believed there was an underlying constitutional crisis regarding the widespread, though not universal media failure, to report Murphy’s speech. The furore says as much about the media as it does about O’Brien. It was an excessively timid interpretation of a ruling by Mr Justice Donald Binchy in the High Court on May 21.

I am no lawyer, but every jot of cop-on I possess, told me that any media outlet would have been fully within its rights to report her utterances in the Dáil. That is a view some media outlets took. It was also a view expressed by the former Attorney General Michael McDowell.

There were contrary legal opinions, but the power of the press, and the freedom it enjoys is based on the premise that it speaks truth to power. Regarding Murphy’s Dáil speech, there was a widespread failure to do so. And that’s a pity.

It’s easy to say what others should do, when the consequences of a wrong call are financially debilitating. I am reminded of the put-down I received once from a senior civil servant. “Special advisers” he tartly told me “are just above work and below responsibility”. Such is the office of opinion columnists, compared to journalists and editors.

Having little of the responsibility, but enjoying some of the privilege that comes from having a platform, I nonetheless believe that in the main, the media called it wrong. They could have published and they should have.

It is an uncomfortable truth but O’Brien is fully entitled to pursue an aggressive legal and public relations strategy. The more uncomfortable truth is that there was both a legal basis and a public interest for telling him to bugger off.

This was a failure of courage, not a so-called constitutional crisis. There is a world of difference.

A powerful man with sway in the media and in business, O’Brien is properly the subject of scrutiny. The injunction he obtained was to prevent broadcasting of a story by RTÉ regarding his dealings with IBRC, a banking organisation established by the Government to manage the business of the defunct Anglo-Irish Bank.

The gist of the speech Murphy made was that he got special treatment from IBRC in terms of interest rates received on loans. This follows on the row over the sale of Siteserv to O’Brien, also by IBRC. Murphy is a credible politician.

However, Alan Dukes then chairman of IBRC is also highly credible. He vehemently disputes Murphy’s claims. So does O’Brien.

What is undeniable is that the issues raised are of public interest, and it is an essential public interest that the proceedings of the Oireachtas are reported. The real underlying issues are firstly that this controversy is collateral fallout from a fundamental breakdown in relations between IBRC, its CEO Mike Aynsley, and chairman Alan Dukes on one hand, and the Department of Finance on the other.

Given the stakes involved, which at their nadir potentially impacted on the financial viability of the State, we the people need to know a lot more about what went on, what went wrong and why.

My instinct is that the ruckus about O’Brien, is the tip of the iceberg visible above the water, not the substantive mass still invisible beneath it. This welter of accusation arises in tandem with a rupture in that same, still unexplained, dysfunction.

O’Brien’s power properly attracts scrutiny of his activities. It does not, however, deprive him of his right to pursue vindication of his rights, as he sees them, within the law. The fact of being powerful, even unpopular, or both, does not diminish his right of access to the courts.

Having deep pockets makes that option easier, and unquestionably has a chilling, self-censoring effect on media. But media itself is not simply the unblemished paragon of public interest its less reflective practitioners pretend.

It is also a series of competing commercial interests, whose vested interest depend on stories of the man bites dog variety. Making a pretended constitutional crisis out of this affair, while poking an arch-competitor, eerily overlapped in relation to this story, with a widespread failure to deliver on their public responsibility.

One disturbing aspect of this story’s coverage on the airwaves is the entertainment of James Morrissey as a spokesperson for O’Brien. It is a favour unlikely to have been extended another participant in a similar controversy.

O’Brien has no obligation to submit to any interview, but there is no commensurate obligation, to accept his proxy. It smacks of kowtowing.

The underlying constitutional crisis in play is not between the courts and the Oireachtas; it is between the Oireachtas and its citizens.

If the right of a TD to voice what she considers well founded concerns in the Dáil is fundamental, and the importance of having those proceedings reported are self-evident, those rights abut another which is currently effectively impossible to protect.

That is the right of a citizen to vindicate their good name when, either from malice or mistake, it has been impugned in constitutionally privileged Dáil proceedings.

In pursuing his strategy to contain reportage of a story, O’Brien has not done anything wrong. More seriously he has perhaps made a mistake. The story has exploded. All the while primary issues of greater public interest, remain pitifully underexplored.

What is currently afflicting the powerful, will when the tables are turned, be cold comfort for the afflicted.

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