Mr Justice Donald Binchy's clarification in the High Court yesterday that his intention in injuncting RTÉ in his order on May 21st had never been to prevent the "fair" reporting of "utterances" in the Dáil is an important and welcome reaffirmation of the crucial constitutional principle of parliamentary privilege. Both the right of TDs to speak freely, and its corollary, the right of media organisations to publish such speech. That media organisations should feel it necessary to seek such clarification before publishing such utterances, he said, was completely understandable.
Apparently, at least according to counsel for Mr Denis O’Brien, Mr Michael Cush SC, Mr O’Brien had also never intended to inhibit the reporting of TD Catherine Murphy’s claims in the Dáil, and Mr Cush was in the court to accept an amendment to the judge’s order that would make that very clear. So, it seemed, the learned counsel for all parties and the judge, were singing off the same hymnsheet, and the so-called “constitutional crisis” was merely a misundertsanding. Mr Cush did not explain, however, how solicitor’s letters from Mr O’Brien to several media outlets might have created an altogether other impression by warning that publication of Ms Murphy’s remarks would breach the judge’s order.
Yesterday's hearing did not touch on the substantive issues involved in Mr O'Brien's original application to the court – the unresolved conflict between his "right to privacy" and the legitimate public interest in the details of his dealings with the Irish Bank Resolution Corporation. The judgement in the case taken by O'Brien against RTÉ may throw some further light on this issue, but only to the extent that it deals with the specific information in RTÉ's possession.
With O’Brien and former IBRC executives all taking issue with Deputy Murphy’s information, there is no clarity on what exactly happened. However there are some issues that do require further investigation.
The Government has already set up an inquiry in to the Siteserv transaction, which is separate from the matters raised in court yesterday. Given the previous involvement of KPMG in this transaction, the initial decision to ask it to review the issued involved was not wise, even with the oversight of a retired judge. A review conducted by an independent party is needed.
The terms of this also need to be considered. The public needs to know whether there is any basis to the various claims which have surfaced in the Dáil and via Freedom of Information Request about IBRC and about how it treated borrowers and engaged in asset sales. Saying this casts no criticism on IBRC’s previous board and management, or on its liquidators. But the claims are in public now and having paid so much to wind up IBRC, the public does have a right to know.