The conflict between the Minister for Justice and Frank Connolly touches on fundamental issues relating to freedom of the press, writes Carol Coulter, Legal Affairs Correspondent
The controversy concerning the actions of the Minister for Justice against Frank Connolly in his capacity as director of the Centre for Public Inquiry (CPI) has died down, and will probably fade away over the holiday period. But it leaves behind a number of precedents that could return to haunt the Minister, the wider political world and the media.
While many of Michael McDowell's statements had the appearance of retrospective justifications for hasty action, they nonetheless set a legal and constitutional framework for ministerial action that merited wider comment.
In his statement to the Dáil on December 13th, Mr McDowell quoted Article 40.6.1 of the Constitution, dealing with freedom of expression, which states: "The State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State."
He continued: "Undoubtedly, the Centre for Public Inquiry aspires to be an organ of public opinion, but equally it is one which has, in subversive hands, the capacity to gravely undermine the authority of the State."
This, he said, was the reason why he was bound in duty to bring to public attention the role in that body of a person who, according to the Minister, participated in a series of visits to Colombia designed to exchange know-how in terrorism for money "apparently to be spent on distorting our democratic process". This justified the handing over of documents from a Garda file to the Irish Independent, and his earlier statement in the Dáil.
Mr McDowell did not explain how the CPI could, "in subversive hands", be a threat to the authority of the State.
Even if its board exercised no supervisory role over its allegedly subversive director, the centre would be subject to the same defamation laws as any other body, and could not publish material on any organisation or person in public life that was defamatory or untrue, without facing severe sanction.
While it was not referred to in the statement, presumably the possibility that the CPI might "gravely undermine the authority of the State" was the reason why Mr McDowell also sought to interfere in the running of the centre, by persuading its funder, Chuck Feeney, to either get rid of Mr Connolly or withdraw its funding.
This statement differs from the statement made by the Minister the previous weekend, when he referred only to a threat to "the security of the State". This is cited in the Official Secrets Act as the justification for making official documents, such as Garda files, public.
The shift in emphasis in this controversy to defending "the authority of the State" has been followed up by other Ministers, including Mary Harney and Willie O'Dea. On RTÉ's Questions & Answers programme Mr O'Dea claimed, wrongly, that Article 40.6.1 required the Minister to act to defend "the authority of the State".
This Article of the Constitution has, in the past, been widely criticised as overly restrictive of the right of freedom of expression. The Constitution Review Group described the constitutional protection for free speech as "weak and heavily circumscribed", and said that it should not be subject to "public order and morality and the authority of the State". It suggested it should be replaced by a new provision modelled on Article 10 of the European Convention on Human Rights.
Up to now, Ministers have not interfered in freedom of expression without legislative authority. Censorship of publications and films for obscene material, the prohibition of certain publications under the Offences Against the State Act, and the ban on broadcasting interviews with members of Sinn Féin, were all carried out under specific legislation, spelling out the need for the restrictions.
Last week, however, a Minister stated he was interfering with an "organ of public opinion" because he personally held the opinion it was a "threat to the authority of the State".
No legislation was proposed, no opportunity was presented for a debate on what constituted a "threat to the authority of the State".
Other Ministers have supported this new interpretation of the Constitution, making the defence of the authority of the State a matter of ministerial opinion.
What is now to stop any organisation, be it a media or a campaigning body, which brings to public attention material that is embarrassing for the Government or individual Ministers, being described as a "threat to the authority of the State" and restricted accordingly?