High Court clarification 'a victory for democracy', says law expert
By Dr Laura Cahillane
Today's High Court clarification by Justice Donald Binchy that an injunction originally granted to Denis O’Brien did not restrict the free reporting of a speech made in the Dáil is an important victory for democracy, suggests constitutional law lecturer Dr Laura Cahillane.
Confusion over the remit of an injunction granted to prevent a broadcast by RTE relating to the personal banking affairs of Mr Denis O’Brien led to a state of affairs in recent days whereby Ireland’s media felt constrained in reporting on comments made in the houses of the Oireachtas.
While the situation was dubbed a “constitutional crisis” by some, the decision by Mr Justice Binchy today was essentially one of common sense.
Article 15.12 of the Constitution confers parliamentary privilege on reports and utterances made in the houses of the Oireachtas.
This means that no legal action can result from anything which has been said in either House.
The privilege also extends to publication of those utterances: “utterances … wherever published shall be privileged.”
The purpose of this is to allow for the dissemination of Oireachtas proceedings – something which is crucial in a democracy. This privilege has generally been acknowledged as one which is very robust.
Thus, it was always likely that any report on proceedings in the House would be covered by the privilege, notwithstanding the injunction. Of course, the decision from the High Court today was the only way to confirm this.
However, this case did raise the question as to whether any and all such injunctions could in future be frustrated simply by politicians abusing their rights of privilege in the Oireachtas.
This is highly unlikely and there already exists a mechanism to guard against such abuse.
Standing Order 59 effectively contains a right of reply for aggrieved persons who feel their names have been tarnished by utterances in the Dáil.
In such a case, if the Committee on Procedure and Privileges feels abuse has taken place, the record of the House can be rebalanced and the Deputy in question reprimanded.
The decision today has reaffirmed the freedom of the press to report parliamentary proceedings and the right of citizens to know what goes on in their Parliament.
While there will almost certainly be some further action (lawyers acting for Mr O'Brien have already indicated as much) to clarify the demarcation between respective roles of courts and the Oireachtas, the main issue has now been put to bed and it can be regarded as a victory for democracy.
