A Constitutionally guaranteed ‘freedom of speech’, or is the Dáil just going a bit rogue?

By far (for me anyway) the most interesting story of the week took place yesterday in the south. And it’s a real poser. Not least because it involves a clash between the common perception of parliamentary privilege in the UK and what it means under the Irish Constitution.

The disclosure made in the Dail yesterday by Deputy Catherine Murphy was both partial and (unlike a similar disclosure by Sinn Fein’s Mary Lou McDonald’s earlier in the year) a deliberate run against an injunction of the courts against such public disclosure.

By and large it brought silence from the media (bar of course the broad shoulders of Broadsheet.ie). The media’s legal advice was largely based on UK precedent of the Trafigura case in which it became obvious that privilege under UK is only extended in absolute terms to Parliament and its official reports and not to secondary others.

But the thing is, the Irish Constitution is pretty unambiguous.


Bunreacht privilegeIn other words, TDs can pretty much say what they like and journalists and bloggers can pretty much report everything they say, though going further than that without corroborating evidence is a likely to turn into a pit of legalistic vipers.

The UK’s Parliamentary Papers Act (1940), which governs reporting of the doings of the British Parliament, is severely circumscribed in terms of what can be reported…

  • Publications under the House’s authority enjoy absolute privilege against civil or criminal proceedings (s.1);
  • Correct copies of such publications also enjoy absolute privilege (s.2);
  • Extracts are protected by qualified privilege. The burden of proof is on the defendant to show that the publication was without malice (s.3).

So, it seems, no one can do anything to prevent a pure report of these proceedings, whether they are justified or not. The Irish Constitution, as Micheal Martin pointed out at the weekend, is a document of democratic law and above the power of kings or taoisigh to manipulate…

However, as Stephen Collins notes, Standing Orders of the Dáil (the only regulatory means available in this case) state…

“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.”

Under the standing orders the Committee of Procedure and Privileges (CPP) is empowered to investigate claimed abuse of privilege and recommend sanctions.

The CPP ruled last December that Sinn Féin deputy leader Mary Lou McDonald had abused privilege by naming alleged tax offenders but it did not have the power to implement further disciplinary procedures.

The CPP has since sought legal advice about how it can impose more effective sanctions for similar abuses in the future.

In any clash between the courts and the constitution, the courts are likely to come out second best. That ought to put a deeper onus on parliamentarians to get their stories straight. That appears not to have been quite so in the McDonald case.

The jury is out on this one, and the government is taking no further chances by assenting to Fianna Fail calls for a further debate on the nature (use and possible abuse) of parliamentary privilege… [Although, perhaps a more intellectually honest debate is exactly what’s need.]

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