Posted on behalf of Dr. Jennifer Kavanagh – Waterford IT
The controversy surrounding the non-reporting of statements by Catherine Murphy TD made in Dáil Eireann last week appears to have been ameliorated by the pronouncement by Mr Justice Donald Binchy that an earlier court order was not intended to stop the reporting of Dáil statements. Some of the focus of this controversy may now move towards whether the statements by Catherine Murphy were an abuse of Dáil privilege. This issue will have to be pursued through the Houses of the Oireachtas.
Dáil Privilege
Members of both Houses of the Oireachtas are protected by the Constitution from Court actions in relation to what they say in the House. This type of protection is widely found in democratic states and is considered an important foundation stone for an effective parliament. The Irish version of privilege draws heavily from provisions in Westminster. The original version of the protection was incorporated in the Bill of Rights which placed utterances by members of parliament outside of the scope of the courts. Under Article 9 ‘…freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’
In Ireland, the protection is included in the constitution. Anything which is said in the Dáil is protected from litigation or privileged by the Constitution. Article 15.13 says that a TD “shall not, in respect of any utterance in [the Dáil], be amenable to any court”. However a member can be asked to account for what they have said to the House itself. This is also reflected in the Defamation Act 2009 which includes what is known as ‘absolute privilege’ in section 17 which states that any statement made in either House is protected. The principle which underpins parliamentary privilege is that members of either house of parliament should be able to raise issues in the public interest without fear of court action.
Abuse of Dáil Privilege and Remedies
Allegations of abuse of Dáil Privilege have been levied against Deputy Catherine Murphy. The only group which can make a determination on this is the Committee on Procedures and Privileges. As documented in Defamation in the Dáil: The Right of Reply for Citizens, the Use of Standing Order 59 and Parliamentary Reform, many allegations of abuse of privilege have been made but at the time of writing, there were only three successful cases. The information in the article published in 2013, details the allegations which have been made to the Ceann Comhairle. The most recent case involving Deputy Mary Lou McDonald in respect of her statements regarding allegations about Ansbacher account holders is not covered.
The applicable rule is Standing Order 59 which states that:
(A) member shall not make an utterance in the nature of being defamatory and where a member makes such an utterance it may be prima facie an abuse of privilege, subject to the provisions of this Standing Order.
When an allegation of abuse of privilege has been substantiated, the only remedy available is to balance the Dáil record in order for both sides of the story to be represented on public record.
The linked article assesses the role of parliamentary privilege, the rules of debate in the Houses, the provisions of Standing Order 59 and previous complaints under the section http://www.tandfonline.com/doi/abs/10.1080/07907184.2013.838223 It is available to download free for the month of June
Irish Politics Forum 
Whatever about tinkering with standing orders to salve the wounded dignitiy of some big-wig, an elected assembly to which citizens delegate their ultimate authority between general elections but which can’t make findings of fact isn’t a parliament. Once the Dáil performs its initial duty of electing a taoiseach it is simply a talking shop that rubberstamps the decisions made and legislation drafted by a government that commands a secure majority. In any event the country is too darned small and this means that identifiable individuals frequently figure in debates on public issues rather than groups, associations and organisations of citizens, entities and firms – which is the case more often in other jurisdictions. When this is combined with the intense legal focus on people being able to preserve their ‘good name’, the ability to exercise parliamentary scrutiny, restraint and accountability on the exercise of political and economic power vanishes.
If most Irish citizens were honest they’d admit they like having the trappings of a parliamentary democracy and a mixed economy, but they want very little of the substance or the reality. A majority of citizens quite rightly jealously guard their right to decide who governs, but, once they have decided, they have little interest in how this governance is exercised between general elections and in the functioning of effective institutions and procedures of governance until occasionally some bit of egregious behavior by an individual or an entity gets up their noses.
This is the case in most jurisdictions, but it is particularly the case in Ireland. It’s a pretend democracy. It is little wonder that the major developing economies are pursuing their own approach to governance and treat the charades performed in the so called established democracies with such contempt.