Times made a brave decision

This conflict between the Irish Times and the Mahon Tribunal is an interesting collision of interpretations of "the public interest". At the time of going to press, the tribunal has yet to say what action, if any, it proposes to take against the newspaper in relation to the recent leak about the financial affairs of the Taoiseach. But what is more interesting is the fact that here we have two institutions each claiming to represent the public interest, with no possibility of reconciliation. Each side is, from its own point of view, correct.

The editor of the Irish Times presented a coherent case for refusing to cooperate with the tribunal, arguing that any attempt to do so might result in the exposure of the paper's source. The decision to order the destruction of documents which might have enabled the tribunal to detect the source of the leak was consistent with that position.

On the other hand, the paper's action could threaten the ability of the tribunal to function. It is essential, for example, that the tribunal can continue to compel individuals to disclose information concerning financial matters. As the late Liam Lawlor was to discover, there are stiff penalties for failure to do so. But there is also, by way of persuading people to cooperate on a voluntary basis, a guarantee of confidentiality. This guarantee has been undermined in this episode, possibly through no direct fault of anyone associated with the tribunal. This means that, in future, citizens who refuse to cooperate with tribunals can offer a reasonable defence for their failure to do so: the inability of the tribunal to provide an absolute guarantee of confidentiality.

And here we have not merely a collision of differing perspectives on the public interest but a battle for moral supremacy between two tribunes of the people, one statutory, the other from that grey area known as the fourth estate. Despite some lingering disgruntlement about the scale of lawyers' fees, the tribunals remain capable of summoning up significant reserves of populist approval. In this instance, however, the Mahon Tribunal appears to have been trumped by a superior moral entity. Whatever one may think of the rights and wrongs of the Taoiseach's conduct in accepting donations from friends or others, it is clear that the Irish Times had an obvious public duty to publish the information. Sometimes, as this illustrates, there is a tension between the role of the press and the operation of State bodies, including courts. Although newspapers are as subject to the law as any citizen or entity in society, this tension is both necessary and desirable, though its manifestations will inevitably become the subject of disagreement and debate. More interesting is the contexts in which this tension is deemed legitimate by both press and public. In the context of the payments to Bertie Ahern, there was a clear public interest in the information being published. There are other contexts, however, in which the same thing is true, but where newspapers remain reluctant to challenge state institutions. The most obvious is the family courts, which for a long time have been the subject of anecdotal reportage concerning denials of rights, brutalisation of families and other abuses. If the editors of the national newspapers tomorrow decided to allow their reporters and columnists to write about what goes on in these courts, they would be acting very much in the public interest. Yet, it remains impossible for journalists to provide the public with information about the functioning of these courts because of a strict enforcement of the in-camera rule – not merely by the State and its courts but also by editors acting under legal advice.

The editor of the Irish Times last week told the Mahon tribunal that she had taken legal advice and then made her decision. One presumes that the advice and the decision were not in accord. This was courageous and correct. The pity is that it happens so rarely in Irish media.