Friday 30 September 2016

Privilege should always come with a price for members of Dail Eireann

Businessman Denis O'Brien's decision to challenge the Dail is not a cause for dismay, writes Willie O'Dea

Willie O'Dea

Published 09/08/2015 | 02:30

Disagreement: Fianna Fail leader Micheal Martin believes that Denis O’Brien has the right to make his legal challenge, but that he should not avail of that right
Disagreement: Fianna Fail leader Micheal Martin believes that Denis O’Brien has the right to make his legal challenge, but that he should not avail of that right

Let us be clear. I am in no way beholden to Denis O'Brien.

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Last week, I defended the notion that a person, however great or humble, has a legal right to go to court and that they are perfectly entitled to exercise that right.

I instanced Denis O'Brien's recent announcement that he intended to challenge the decision of the Dail's Committee on Privileges and Procedures. I imagined that what I said was self-evident. The reaction I received, however, seemed to indicate that I had said something outrageous. I am still puzzled about why that was so.

Denis O'Brien is a citizen of this State. If he feels aggrieved by a decision made by a third party and he has a legal right to go to court then surely he is entitled to do so.

In this particular case the Oireachtas Committee On Procedures and Privileges made a decision and Mr O'Brien is the person who is unhappy because it relates to matters specifically concerning him.

There is no legal or constitutional barrier which prevents him from challenging that position in the courts.

Under Irish law the Committee on Procedures and Privileges does not have the final say on the question of whether Dail privilege is abused.

Any decision on that particular matter can be legally appealed to the courts.

If any other individual, who is not as high profile, or indeed as wealthy as Mr O'Brien, were to make a similar challenge, I doubt if anyone would question for one moment their entitlement to do so. Are we really saying that a person with a certain level of wealth or notoriety is not entitled to exercise their legal rights?

We are consistently told that nobody is above the law. The corollary of that is surely that nobody is below the law either. In any event what are people afraid of? Do we not trust the courts? Do we imagine that the courts will interpret the law in this area in a way that will effectively stifle parliament?

I certainly have more faith in the courts than that. If the applicant in this case succeeds then the sky won't fall in! And, democracy, which includes the right of access to the courts, will in no way be undermined.

My intervention in this case has been interpreted as some sort of a challenge to, or undermining of, my party leader Micheal Martin. Nothing could be further from the truth. I have the highest respect for Micheal. I think he should be the next Taoiseach, and the latest findings in the Sunday Independent Millward Brown opinion poll shows that more than one in three of the Irish population agree with me.

Both Micheal Martin and myself agree that Denis O'Brien has a legal right to make this challenge.

Where we differ is that Micheal feels that Mr O'Brien shouldn't avail of that right. I understand that point of view.

My view, on the other hand, is that this is a matter for the individual himself, Denis O'Brien. Put simply, it is his business.

The fact that we hold different views on this subject will hardly put a boundary to the march of Fianna Fail.

Everything must be seen in context. This controversy is taking place against the background where an increasing plethora of parties and people of no party are trying harder and harder to grab the attention of an electorate which is becoming ever more disillusioned and disinterested in the entire process.

This creates a situation where the attitude of parliamentarians to Dail privilege will become more cavalier. That would be catastrophic. Dail privilege is essential to the proper functioning of a democracy. However it is also a very powerful weapon.

Something can be said in the Dail under privilege which could effectively destroy someone's reputation.

I am not suggesting that Catherine Murphy is not a person of the highest integrity or that the committee did not behave honestly and objectively in this case.

However, imagine for a moment the position of somebody who has suffered grievously as a result of something said in the Dail which they feel to be wrong. They have no right to sue for defamation.

The most they can hope for is that the relevant Dail Committee will find that there has been abuse of privilege.

So access to a final arbiter, in the form of the courts, is a vital protection for all the citizens of the State. Similarly, there is a grave responsibility on the part of politicians to exercise prudence in the use of Dail privilege.

At the moment there is no effective sanction even if privilege has been found to be abused. Surely that is something that members of the Oireachtas should be examining?

Sunday Independent

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