Friday 21 October 2016

Taking on the State is hazardous

Denis O'Brien's confrontational legal approach to his critics in the Dail has its own risks, writes Willie Kealy

Published 09/08/2015 | 02:30

Court case: Denis O’Brien is taking legal action over comments made in Leinster House over his IBRC accounts
Court case: Denis O’Brien is taking legal action over comments made in Leinster House over his IBRC accounts

Denis O'Brien is right. Something needs to be done about the Dail. There was a time when the rules of the Oireachtas were respected by the members. You did not make accusations about people who were not members and could therefore not defend themselves. This has never been an inhibitor of proper debate and has never deprived deputies from raising issues of national importance.

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And if a member of the Dail transgressed, they would face the censure of their fellows. Such was the respect that those elected to Dail had for that institution that they did everything they could to avoid that censure. Not any more.

Mary Lou McDonald is the best known example. She named several people in the House as having Ansbacher accounts, including the late Judge Declan Costello who is not only not a member of the House any more, he is no longer even among the living.

It turned out that these allegations had been fully investigated before they ever got to Ms McDonald and been found wanting. A complaint was made to the Oireachtas Committee on Procedure and Privilege (CPP) and Deputy McDonald was censured. It was water off a duck's back.

This prompted a campaign, joined most enthusiastically by Des O'Malley, a man who has more experience of Oireachtas affairs than most, to try to get some tougher sanctions, ones that maybe wouldn't be taken as lightly by errant deputies. It was suggested that suspending a deputy from the Dail for a period of, say, a month, without pay, would be a good start.

We wait to see if that will ever happen.

The Independent deputy Catherine Murphy raised issues in the Dail about Denis O'Brien and his dealings with IBRC. Most commentators felt this did not put her in the same category as Mary Lou McDonald. Pearse Doherty raised a similar issue. Denis O'Brien objected to these two contributions and complained to the CPP. His objection was that she was airing matters which he considered private - his personal banking details. Whether or not the banking arrangements between Ireland's richest man and the bad bank that was the IBRC comes under the heading of personal affairs is a moot point. But his complaint to the CPP was based on a statement that what the deputies had said was factually incorrect. Understandably, he did not feel in a position to provide the Committee with factual information which would have disproved what Ms Murphy and later Deputy Doherty had said. To do so would have defeated his objective of keeping his personal banking affairs private. But this placed the CPP in a difficult position, one in which they found it impossible to make a finding against the deputies.

Denis O'Brien does not accept that. He is now taking the Committee to court, not because they did not find that Ms Murphy and Mr Doherty were factually wrong in what they presented to the Dail or because they breached his privacy and unfairly attacked him as person not present with an immediate right of reply.

The Ceann Comhairle, Sean Barrett, is of the opinion that nothing the deputies said constituted an attack on Mr O'Brien. Mr O'Brien's general complaint that his constitutional rights were breached, could cover a multitude.

More specifically, he is now claiming that the Committee should have found that the deputies were "guilty of an unwarranted interference" in the operation of the courts, because the information they put into the public domain was the subject of an on-going court case and therefore should have been treated as sub judice, even in the Dail.

At the time, Mr O'Brien was in court trying to prevent RTE airing some of the very details about his banking arrangements with IBRC that were aired in the Dail. To some extent that issue seems to have already been dealt with in the course of that court case where not just the presiding judge but also lawyers for Mr O'Brien were at pains to say that they would never dream of trying to curtail the constitutional privilege of deputies addressing the Dail.

Denis O'Brien is a very successful entrepreneur, operating a worldwide business from a far flung part of the planet. What he knows about what goes on in this country on a day-to-day basis is presumably partly based on what is transmitted to him by others.

He has the money to buy the best legal brains in the business, and presumably these brains have told him he is not wasting his time or his money in effectively taking on the State. And they might be right.

But his efforts to protect his privacy could do him more reputational damage in the long run than anything anyone else has had to say about him.

Sunday Independent

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