Monday 24 October 2016

Privilege means never having to say you're sorry

Kieron Wood

Published 12/04/2015 | 02:30


So is Mary Lou McDonald really in trouble, or is it all a storm in a parliamentary teacup? There's no doubt that, like all TDs, she could not be sued in court for anything she says in the Dail.

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Article 15.12 of the Constitution says: "Utterances made in either House wherever published shall be privileged". That means that, even if the statements are untrue and defamatory, the subject(s) of those statements cannot sue in the civil courts.

That constitutional provision allows TDs (and Senators) to name individuals without risking the financial and reputational cost of a successful defamation action by an aggrieved individual.

Under the 2009 Defamation Act, there are several defences to a claim of defamation, not least that the allegation is true. But whether the claim is true or not, members of the Oireachtas can name individuals with impunity.

So what is to stop a member of the Oireachtas naming someone unfairly?

Well, the Dail's 2011 standing orders allow the Ceann Comhairle (in this case Fine Gael's Sean Barrett) to refer "an utterance in the nature of being defamatory" to the Committee on Procedures and Privileges (the CPP). The nine members of that committee - drawn from Fine Gael (4), Labour (2), Fianna Fail, Independents and Sinn Fein (1 each) - have the power to discipline any TD, including Mary Lou McDonald.

In the Dail on December 3 last year, the deputy leader of Sinn Fein - herself a member of the Oireachtas Public Accounts and Finance, Public Expenditure and Reform committees - quoted extensively from a report by a whistleblower who claimed that named former ministers had secret Ansbacher accounts to evade paying taxes in Ireland. All those named have vehemently denied the claims

Barrett referred McDonald's remarks to the CPP under paragraph (10)(b) of standing order 59. This section of the Dail's standing orders says that the Ceann Comhairle "may at any time, on his or her own volition, refer an utterance in the nature of being defamatory to the Committee".

On December 19, the CPP asked McDonald either to make a written submission to the committee or to appear before it. On February 4 this year, McDonald replied in writing to the committee.

When members considered the submission a month later, they decided that McDonald's claims were "in the nature of being defamatory under the definition in paragraph (11) of Standing Order 59".

That defines "an utterance in the nature of being defamatory" as a statement "which, in the opinion of the Ceann Comhairle or of the committee, could be construed as being defamatory if made other than in the course of parliamentary proceedings whereby a person who has been referred to by name or in such a way as to be readily identifiable has been adversely affected in reputation or in respect of dealings or associations with others, or injured in occupation, trade, office or financial credit, or that the person's privacy has been unreasonably invaded, by reason of that reference to the person".

The committee also decided unanimously that the "utterances were prima facie an abuse of privilege".

Barrett said that the members of the committee felt that people's right to their good name was "a fundamental right, and persons outside of the House should not be

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referred to in a manner which would adversely affect their good names or reputations".

While the Constitution confers absolute privilege on TDs in respect of their utterances in the House, "under no circumstances should this be abused", said Barrett.

The six people named by McDonald were certainly identifiable, and her allegations can't but have affected their reputations. Were the allegations made "other than in the course of parliamentary proceedings"? The Ceann Comhairle clearly thinks so.

The CPP asked McDonald to withdraw her claims "without qualification", and to indicate by March 12 when she intended to do so. McDonald wrote back to the CPP the day before the deadline, disputing the CPP process for considering the complaint. She claimed that her exercise of privilege was in the public interest, was responsibly exercised and made in good faith.

On April Fool's Day, the CPP rejected McDonald's assertions. The findings of the committee will be read into the Dail record when TDs come back from their Easter break on Wednesday.

Breach of privilege and contempt of the Oireachtas are by no means unknown in Ireland. Contempt has included assaults and breach of privilege has included abusive language.

Kieron Wood is a barrister and author of Contempt of Parliament (Clarus Press, €28)

Sunday Independent

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