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Monday 26 September 2016

The Dáil committee was right to censure McDonald over parliamentary outburst

Laura Cahillane

Published 10/04/2015 | 02:30

While Mary Lou McDonald argued that the disclosure was in the public interest and that it was covered by privilege, the Committee disagreed and decided that the utterances were
While Mary Lou McDonald argued that the disclosure was in the public interest and that it was covered by privilege, the Committee disagreed and decided that the utterances were "in the nature of being defamatory and were prima facie an abuse of privilege"
Controversy has erupted again this week about Deputy Mary Lou McDonald’s decision to name naming certain persons in the Dáil on foot of allegations relating to tax evasion

Controversy has erupted again this week about Mary Lou McDonald naming certain persons in the Dáil on foot of allegations relating to tax evasion. A report by the Dáil's Committee on Procedure and Privileges concluded that Deputy McDonald had abused her parliamentary privilege by naming the individuals.

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While she argued that the disclosure was in the public interest and that it was covered by privilege, the Committee disagreed and decided that the utterances were "in the nature of being defamatory and were prima facie an abuse of privilege".

The area of parliamentary privilege in Ireland is a grey one. TDs and Senators are accorded special immunities and privileges by the Constitution in order to enable them to properly discharge the functions of their office.

The idea is that a member of the House cannot be the subject of court action because of utterances made in the House.

The reason for this is that otherwise, TDs and Senators would be constrained by issues such as fear of defamation proceedings or other consequences in the courts and would not be able to speak freely.

The fact remains, however, that these clauses are quite vague and it is not clear what exactly was intended.

The Supreme Court has considered this area a couple of times, but mostly with respect to Tribunals of Inquiry and whether Deputies can be questioned on statements made in the Dáil.

In a case relating to the Goodman Tribunal, the extent of the immunity was made clear when the court declared that a member "could affect the most serious criminal trial, but could not be attached for contempt of court in respect of something said in the House".

In a follow-up case, it was indicated that the privilege relates to the right to free speech and that it is for the protection of the democratic process.

It was also pointed out that by this privilege, "the legislature retains its separate strength free from any shackles an executive might wish to fit". On this basis, and reading the Constitution as a whole, it would seem that the purpose of the immunities was to strengthen the separation of powers; to prevent interference from the government and to allow parliamentarians to perform the duties of their office without fear of punishment. Because the constitutional Articles are vague, these have been supplemented by standing orders, No 59 of which specifically prohibits a member from making an utterance "in the nature of being defamatory".

However, section 9 directs that in considering any complaint of this nature, the Committee on Procedure and Privileges should take into account whether the member acted in a responsible manner, in good faith and ensured, as far as practicable, that the utterance reflecting adversely on a person was soundly based.

Ms McDonald argued, in a letter to the Committee, that her utterance met these requirements of responsible exercise, good faith and sound basis, a view not shared by the Committee. However, the standing order also provides for the situation whereby a member feels that it is in the public interest to make an utterance which could be construed as defamatory. In this case, prior private notice should be given to the Ceann Comhairle, in this case Seán Barrett.

Evidently, this course of action was not pursued on this occasion.

So, while the privilege given to members of the Oireachtas under the Constitution seems absolute - and indeed this view has been endorsed by the Courts - the Constitution allows the Houses to make their own rules and standing orders and by standing order No 59, the Dáil has placed a restriction on its own privilege, which it is entitled to do. Ms McDonald has fallen foul of this.

It is because of the vague nature of the Constitutional provisions that these immunities are prone to controversy and there have been a number of issue surrounding a related provision which provides immunity from arrest for members going to or coming from the Oireachtas.

In 1989, Fianna Fáil senator Dr Seán McCarthy was arrested on suspicion of drink driving and refused to give a blood or urine sample and successfully claimed immunity. In 2003, it was speculated that Fianna Fáil TD GV Wright might be entitled to benefit from the immunity in a drink-driving case, but he did not seek to avail of it. He was fined €900 and banned for two years.

The immunity provision was also more recently invoked by Luke 'Ming' Flanagan in an attempt to explain the cancellation of penalty points he had received while "on Dáil business".

Just like the immunity for utterances in the House, this immunity is not intended to place members of the Oireachtas above the law; it exists in order to allow them to go about their business without the threat of interference or intimidation and is intended to prevent any attempt at influencing an Oireachtas vote by unnecessarily detaining a member.

While the law on this subject is admittedly imprecise, given the clarity of the standing order and the fact that it appears Ms McDonald did not take up the option of first approaching the Ceann Comhairle, it seems the Committee reached the correct decision. Perhaps the controversy will now lead to more careful consideration on the real purpose of parliamentary privilege and how it is intended to be used.

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

Irish Independent

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