CONSTITUTIONAL crisis, what constitutional crisis?
Yesterday’s High Court ruling on the right of the media to report utterances made under Dáil privilege brought the shutters down on five days of hyperbole. We had been repeatedly told a constitutional crisis was nigh because of the mainstream media’s failure to report Catherine Murphy’s Dáil speech concerning Denis O’Brien’s banking arrangements, on the basis the material may be covered by an injunction granted to Mr O’Brien 10 days ago.
The crisis talk was entirely wide of the mark. If Judge Donald Binchy had ruled yesterday that the media could not report Ms Murphy’s speech, a crisis may well have ensued. But nobody with even the most basic knowledge of the law was suggesting he might. In fact, a battery of lawyers had, across the media,uniformly predicted that it was highly unlikely that the judge would rule other than he did.
The result is that the mainstream media can now report and broadcast that which has been plastered across cyberspace since last Thursday. Had the media been overly cautious? Perhaps, but the accusation of cowardice spat through social media is unfair. Mainstream media today is a delicate place, under siege from a public that now largely believes news and investigation should be provided free gratis. It also operates in a jurisdiction of punitive libel laws where recent court awards resembled payments more fittingly made to somebody who had suffered severe brain damage. Notably, the only mainstream organ to publish the speech before yesterday’s ruling was The Sunday Times, which is owned by billionaire Rupert Murdoch.
Successive governments have shown themselves indifferent, if not hostile, to the difficulties faced by the media in fulfilling its role as the fourth estate. So caution was understandable.
For Mr O’Brien’s part, he could be blamed for putting a foot wrong in one respect. Lawyers acting for him contacted the few media outlets that published Ms Murphy’s speech, warning that they may be breaching the injunction. The threatening correspondence fed the perception he was attempting to silence Ms Murphy’s privileged utterances. Irrespective of what principle he believed himself to be defending, that particular development ratcheted up the stakes. His stance for privacy is understandable, but surely he must accept that as a powerful media owner, with extensive business interests in the State, he is going to be the subject of intense scrutiny by media outside his control, particularly if public money is at issue.
Mr O’Brien has stated the documents on which Ms Murphy based her Dáil speech were “altered”, and contained “falsehoods”. Ms Murphy says she is confident of the veracity of her sources.
The part of her speech concerned with Mr O’Brien’s banking suggested that IBRC chief executive Mike Aynsley “made verbal agreements with Denis O’Brien to allow him extend the terms of his already expired loans. We also know the verbal agreement was never escalated to the credit committee for approval”, she said. Ms Murphy claimed Mr O’Brien enjoyed a rate of interest of 1.25% on his lands while “IBRC could, and arguably should, have been charging 7.5%”. It is unclear as to which parts of the speech Mr O’Brien took issue with in terms of veracity, but the conflict between the pair is extremely serious, and warrants investigation.
Then there is the substantive issue, which, to a large degree got lost in all the hoopla. Did IBRC, son of Anglo Irish Bank, maximise the return for the citizens who bailed out the institution?
When the State took control of Anglo, and set up Nama, one of the concerns expressed was the crisis would present opportunities for wealthy interests to make hay on the backs of the citizens.
A few years later, along came Siteserv. On the face of it, the Siteserv deal was unusual. It was sold to Mr O’Brien at a loss of €100m to IBRC — the people’s bank— in a deal that also included a €5m payout to existing shareholders.
Documents released under freedom of information have revealed that the Department of Finance expressed concerns about the deal. The former chairman of IBRC, Alan Dukes, is adamant that everything was done above board in this and every other deal. Former CEO Mike Aynsley has echoed this position, as has the corporate advisor appointed by IBRC to oversee the sale of Siteserv.
Yet, unease persisted, perhaps understandably among a public jaded by scandals involving well-heeled sections of society. That was the Government’s opportunity to act in a manner that was transparent and authoritative. It could have gone down the route that was used most recently in the Garda whistleblower controversies. On that occasion, senior counsel Seán Guerin was appointed to review all documentation and conduct limited interviews to determine whether a full commission of inquiry was merited. The process has been used a number of times in recent years. Any number of commercially literate barristers or retired judges could have conducted such a review.
Instead, the Government acted with both stupidity and disregard for the general public. Appointing executives from KPMG, the company overseeing the liquidation of IBRC, immediately gave rise to a perception of bias. It also illustrated a Government out of touch with a public mood that demands transparency now more than ever.
The perception that KPMG has skin in the game was heightened by the company joining Mr O’Brien and IBRC in the original injunction hearing.
The ultimate outcome of the Government’s failure to set up an entirely independent review was a private member’s bill from Ms Murphy calling for the Comptroller and Auditor General to have a role in the inquiry. It was during the introduction of that bill that Ms Murphy made her claims under privilege about Mr O’Brien’s banking arrangements.
Just as the Government failed to act decisively in setting up a review, so too has it refused to respond in a cohesive manner to the questions being raised about parliamentary privilege. The charge to defend has been led by leader of the opposition, Micheál Martin. Once more, it appears the executive regards parliament as little more than a talking shop to be endured while it governs.
It’s not too late to change horses. Next week, when the Dáil debates related matters, it will be open to the Government to do the right thing, and establish a thoroughly independent review of the major IBRC deals. Right now, that’s the only credible course of action.
Michael Clifford
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