Privilege to report Dáil proceedings clear and absolute

June 2015 41

HE extraordinary decision of Irish

media not to publish brings the con-

cept of parliamentary privilege to the

fore again. It has been invoked on a number

of occasions in the last few years, some-

times in ridiculous circumstances,

sometimes for political grandstanding, but

also to allow the Oireachtas to do its job

eﬀectively and prevent it from being domi-

nated by the executive.

The parliamentary privilege oﬀered

members of the Oireachtas in Bunreacht na

hÉireann is clear and absolute. I have no

idea whether Catherine Murphy’s allega-

tions are true or not (and to be fair nor does

she claim to know their truth or otherwise)

but her right to make them is

unambiguous.

Articles . relates to the rights of

members:

“The members of each House of the Oire-

achtas shall, except in case of treason as

deﬁned in this Constitution, felony or

breach of the peace, be privileged from

arrest in going to and returning from, and

while within the precincts of, either House,

and shall not, in respect of any utterance in

either House, be amenable to any court or

any authority other than the House itself”

The ﬁrst clause means TDs and senators

cannot be arrested for oﬀences that

wouldn’t normally warrant a prison sen-

tence. It is designed to prevent abuses by

executive authorities interfering in the

legislative process. If the executive could

organise the arrest of members, it could

prevent them from voting. So it is there to

protect the separation of powers.

The ‘immunity from arrest’ privilege

dates from the th century in England,

when an MP was released having had been

detained, thus preventing him from

attending the House. This privilege from

arrest was thus set in English law. The US

introduced such a clause to its constitution

(Art. .), and we took ours almost verba-

tim from there. It can still be seen as a

bulwark to protect the Oireachtas from

executive action.

The second clause gives members the

right not to be prosecuted for what they say

in either chamber, underpinning an impor-

tant element of democracy: freedom of

speech.

It is feared that TDs and

senators can abuse the priv-

ilege to make defamatory

statements about people.

The absolute nature of priv-

ilege puts a duty on TDs not

to abuse it. It was used by

Mary-Lou McDonald to

allege that an investigation

into Ansbacher account

holders had been curtailed

to protect certain former

TDs [full disclosure: my

father is one of those former

TDs named]. Arguably

McDonald’s use of privilege

designed to deﬂect media

attention from her own par-

ty’s travails over the Mairia

Cahill aﬀair. She was able to

question the head of the

Revenue Commissioners

shortly after and appeared

happy with the reassur-

ances that all these individuals had been

fully investigated.

No court can sanction a TD for their

utterances in the Dáil, just the Houses

itself. The Oireachtas has something called

‘exclusive cognisance’, that is the right to

govern its own aﬀairs. People who feel they

have been defamed can appeal using Stand-

ing Order .

In the current controversy the issue of

reporting the Oireachtas proceedings is

being questioned. The constitution is clear:

“All oﬃcial reports and publications of the

Oireachtas or of either House thereof and

utterances made in either House wherever

published shall be privileged”.

It is excessively cautious legal advice and

a genuine fear of being

embroiled in expen-

sive legal proceedings

that are stopping the

mainstream media

from reporting. But

this is exactly why we

have this article; to

prevent the powerful from dominating or

suppressing public debate. Although privi-

lege is not something we expect to invoke

regularly, constitutions often contain

clauses that appear redundant until they

are called upon to be used in extreme

circumstances.

The clarity of the language was deliber-

ate and should be relevant to any legal

outcome. The people when they ratiﬁed it

mandated the free reporting of the Oire-

achtas. In Common Law there are some

restrictions on reporting defamatory state-

ments but the most relevant law seems to

be the Parliamentary Papers Act 

which oﬀers a defence “that such extract or

abstract was published bona ﬁde and with-

out malice”.

Catherine Murphy is a serious politician

who cannot be accused of grandstanding or

hyperbole. This is clearly an important

public matter worthy of fuller investiga-

tion. So reporting her words would clearly

pass this test.

We might think that its abuse in some

cases means there should be some restric-

tions on privilege. Whatever a TD’s

motivation, and though at times a ‘public

interest’ defence appears questionable, any

attempt to curb that right should be

resisted. •

It is absolute precisely to avoid the media being cautious. By Eoin O’Malley

Privilege to report Dáil

proceedings clear and absolute

POLITICS Dáil Privilege

Dr Eoin O’Malley

teaches public policy

and Irish politics at

the School of Law and

Government, DCU.

Excessively

cautious legal

advice and a

genuine fear of

being embroiled

in expensive

legal proceedings

are stopping the

mainstream media

from reporting.

But this is exactly

why we have this

article

“