Oireachtas lawyers ‘should join’ right to report court action

A leading Fianna Fáil TD has criticised Taoiseach Enda Kenny for his "silence" on the controversy over the right to publish comments about businessman Denis O'Brien's banking arrangements made in the Dáil by Independent TD Catherine Murphy.

Billy Kelleher said all TDs and Senators should be “extremely concerned” about what he described as the “threat to privilege” afforded to members of the Dáil and Seanad, as well as the media’s right to freely report on all statements made in the Oireachtas.

“It is breathtaking that neither the Taoiseach nor the Tánaiste have made any statements on the threat to absolute privilege and the constitutional protection over the reporting of comments made by members of the Dáil and Seanad,” Mr Kelleher said.

“The lack of comment from Enda Kenny, who himself is elected to the office of Taoiseach by members of Dáil Éireann, is very serious and is compounding the Constitutional crisis we’re facing.”

Mr Kelleher argued nothing prevented Mr Kenny from making a public statement about the matter.

“The Taoiseach is the longest serving member of the Dáil and he has a duty to uphold its role in our democracy. Why is the Taoiseach silent on these important matters?”

Fianna Fáil earlier said legal counsel representing the Houses of the Oireachtas should attend the High Court on Tuesday along with The Irish Times and RTÉ in relation to the matter.

The media organisations will be applying for confirmation that Ms Murphy's Dáil statement about Mr O'Brien's banking arrangements with Irish Bank Resolution Corporation (IBRC) can be reported on.

On Sunday, Fine Gael Minister for Transport Paschal Donohoe described the situation as “exceptionally serious”.

“I do not believe it’s tenable that media outlets in Ireland cannot report on what is taking place in our parliament and media outlets outside of Ireland can and are. That is not acceptable,” he said.

Labour’s Pat Rabbitte said: “The obvious remedy is the speediest possible return to the court for clarification.”

“No court said that you may not report on what happens in the Dáil,” he said. “We’ve all jumped ahead to this conclusion that the media are somehow disbarred as a result of an injunction served by Mr O’Brien against a particular broadcast.”

That order was also directed at any person or media outlet on notice of it, including The Irish Times.

Fianna Fáil Senator Thomas Byrne criticised the Government for being largely "silent" on the issue.

Mr Byrne said he would raise this issue with the appropriate authorities in the Oireachtas and request the Oireachtas was legally represented at the court hearing.

“We are approaching a major constitutional crisis this week and it seems neither the Government nor the Houses of the Oireachtas are planning to have a voice in a legal action concerning the constitutional protection afforded to members of Dáil and Seanad Éireann and the reporting of statements made under privilege,” he said.

“Fianna Fáil is calling for legal counsel representing the Dáil and Seanad Committee on Procedure and Privilege (CPP) to join this week’s action in the High Court and to ensure the privilege bestowed on Oireachtas members is not abridged in any way.”

Mr Byrne described RTÉ’s inability to report on Ms Murphy’s comments in the Dáil due to a court order as a “grave development”.

He added that it was a “gross violation of the independence of Dáil Éireann and the right of its elected members to speak on matters of public importance”.

Former IBRC chairman Alan Dukes has defended his claim that what Ms Murphy had said was wrong. “It’s very hard to sit by and see yourself painted as a kind of evil genius and not do anything about it, but I stand by what I said,” Mr Dukes said.

“She is basically alleging that there was a very special consideration given to Denis O’Brien and it was not done through proper processes in the bank. That’s wrong.”

On Monday, Mr Dukes insisted Mr O’Brien did not receive favourable treatment by the State-owned bank.

“Nobody secured more favourable terms than others just because of who they were or the size of their loan. Everything depended upon the circumstances of each particular case,” he told Morning Ireland.

Ms Murphy described Mr Dukes’s comments as “outrageous”. She said she had an obligation to act on information that came to her “in good faith”.

“Of course people are entitled to their good name and to have their commercial interests respected, but the people have rights too. It’s about balancing those rights,” she said.

Former attorney general and ex-minister for justice Michael McDowell has said there is “clear public interest” in what Ms Murphy told the Dáil about Mr O’Brien.

Mr McDowell, speaking on RTÉ Radio One’s Morning Ireland programme on Monday, referred to comments by Mr Rabbitte reported in The Irish Times.

“Pat Rabbitte is correct in one sense when he says that no court has ruled that the newspapers cannot cover Catherine Murphy’s speech, what she said in the Dáil and his borrowings. No court has even attempted to deal with that issue thus far,” he said.

“But a court order made in proceedings between RTÉ and Denis O’Brien seems to have the potential to prevent RTÉ from revealing the same information that they were concerned to keep confidential from whatever source RTÉ found it, including Catherine Murphy.”

Mr McDowell said that was the argument Mr O’Brien’s lawyers had made, and they had contacted media outlets to say it would be unlawful to publish the material.

The Irish Times will apply to the High Court on Tuesday morning, separately to RTÉ, to seek confirmation that the statements can be reported after Mr O’Brien had previously secured an injunction.

Mr McDowell said The Irish Times and RTÉ were taking a “cautious” position. He very much doubted that the Sunday Times, which published Independent TD Catherine Murphy’s speech, was in contempt of court.

Mr McDowell said the court would probably say it did not rule on Ms Murphy’s speech and the order did not deal with that particular scenario.

Mr McDowell said he believed the point would also be made that the speech was in the public domain now and it would be “absurd and futile” to prevent some Irish media from reporting on it.

“I believe that there was a clear public interest in what Catherine Murphy said.”

Editor of The Irish Times Kevin O’Sullivan said the organisation “would very much have wished” to bring the matter to court before Tuesday, but that was the first opportunity to make an application.