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Privilege to report Dáil proceedings clear and absolute

By Eoin O’ Malley

The extraordinary decision of Irish media not to publish brings the concept of parliamentary privilege to the fore again. It has been invoked on a number of occasions in the last few years, sometimes in ridiculous circumstances, sometimes for political grandstanding, but also to allow the Oireachtas to do its job effectively and prevent it from being dominated 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 allegations 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 15.13 relates to the rights of members:

“The members of each House of the Oireachtas 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 sentence. 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 14th 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. 1.6), and we took ours almost verbatim 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 important element of democracy: freedom of speech.

It is feared that TDs and senators can abuse the privilege to make defamatory statements about people. The absolute nature of privilege 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 party’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 reassurances 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 Standing Order 59.

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 expensive 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 privilege 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 deliberate and should be relevant to any legal outcome. The people when they ratified it mandated the free reporting of the Oireachtas. In Common Law there are some restrictions on reporting defamatory statements but the most relevant law seems to be the Parliamentary Papers Act 1840 which offers a defence “that such extract or abstract was published bona fide and without 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 investigation. So reporting her words would clearly pass this test.

We might think that its abuse in some cases means there should be some restrictions 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. •