Wednesday 26 October 2016

Questions remain about Dáil privilege despite judgment

Dr Laura Cahillane

Published 04/06/2015 | 02:30

Denis O’Brien’s lawyers conceded before the hearing that the comments made in the Dáil could in fact be published.
Denis O’Brien’s lawyers conceded before the hearing that the comments made in the Dáil could in fact be published.

Editors and journalists surely breathed a sigh of relief on Tuesday afternoon when Justice Donald Binchy declared that the injunction granted to Denis O'Brien was never intended to restrict the reporting of Dáil proceedings.

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While the ruling did not come as a surprise, it has nonetheless provided renewed confidence to the Irish media on their rights of freedom of expression. However, welcome as the ruling may have been, it did not provide any further clarity on the extent of protection provided by Article 15.12.

Previous court decisions have been very clear on the absolute privilege afforded parliamentarians in the course of their duties by virtue of Article 15. The corollary, which relates to the reporting of Oireachtas proceedings is found in Article 15.12, which states that "all official reports and publications of the Oireachtas … and utterances made in either House wherever published shall be privileged." However, we have never received a judicial explanation of the exact meaning of this phrase or the extent of protection.

Because Denis O'Brien's lawyers conceded before the hearing on Tuesday that the comments made in the Dáil could in fact be published, there was no in-depth discussion of parliamentary privilege during the case. Thus, it is still not clear whether this is an absolute or a qualified privilege.

It is certainly a pity that the opportunity to provide a definitive interpretation was not taken but is clear nevertheless that this privilege is regarded as an important democratic device which protects freedom of expression for parliamentarians and those reporting parliamentary proceedings. Thus, it could not lightly be interfered with and Tuesday's decision strengthens this.

However, further questions remain on the appropriate balance to be struck between maintaining parliamentary privilege and ensuring that it is not abused.

While Oireachtas members have complete protection against any legal proceedings which might otherwise arise from speeches made in the Oireachtas, the Dáil's standing orders attempt to offset this privilege by providing certain safeguards.

Standing Order 59 contains a right of reply for aggrieved persons who feel their names have been tarnished by utterances in the Dáil. In such a case, if the Committee on Procedure and Privileges feels abuse has taken place, the record of the House can be rebalanced. We saw this recently when the Committee decided that comments made by Deputy Mary Lou McDonald were an abuse of privilege. However, the Deputy has refused to apologise and it appears no sanctions have been taken.

Thus, the appropriateness of this procedure is something which needs to be examined as to its effectiveness in protecting the rights of citizens to their good name.

Otherwise, if Deputies believe they can make unverified or false assertions without fear of consequence, chaos could ensue. But this is an issue for the Dáil - not the courts.

On that very issue, it has also been reported that Mr O'Brien now intends to take a further action "to clarify demarcation between the respective roles of the courts and the Oireachtas". This is a very unusual action and given that the Constitution is mostly quite clear on the separation of powers, it is not obvious what exactly he wants clarified, but it will be interesting to see whether in fact this will go ahead.

All things considered, Tuesday's judgment was an important clarification for the media and should provide a more solid foundation for the freedom of the press.

However, the situation has thrown up further questions on the procedures in the Dáil relating to parliamentary utterances and we have not heard the last of Mr O'Brien.

Dr Laura Cahillane is a lecturer in Constitutional Law at the University of Limerick.

Irish Independent

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