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.
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