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Dail privilege is vital, but it is not the only right we must value

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The privileges of Dáil deputies and Senators are as clear as a pikestaff. Article 15 of the Constitution provides that the members shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself and, further, that utterances made in either House, wherever published, shall be privileged.

So far, so good. But other provisions of the Constitution must also come into play.

Article 40, section 3 provides: The State guarantees in its laws to respect, and, as far as practicable to defend and vindicate the personal rights of the citizen.

It goes on to provide that: The State shall, in particular, protect as best it may from unjust attack, and in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

What remedy has the ordinary citizen got if his or her good name or other rights are attacked? The right to a measure of privacy has been recognised by our courts as one of the "unremunerated" rights referred to in the Constitution.

Further, the European Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence.

The only provision in the Dáil's standing orders seems to be that: A member shall not make an utterance in the nature of being defamatory...

But the only remedy available is recourse to the Ceann Comhairle or the Dáil's Committee on Privileges and, perhaps, an amendment to the Dáil record after various convoluted proceedings.

Dáil privilege has been described as a cornerstone of our democracy; and perhaps it is.

But there must be room for improvement to provide some form of vindication and satisfaction if the rights of an ordinary citizen are impugned with the shield of absolute privilege.

I have the sense that the old time TDs recognised the special privilege that was allowed them and, generally, reserved their fire for each other.

In other words, if a TD attacked another, his adversary could reply with the same immunity.

Often, the cry went up with an invitation to repeat what was said outside the confines of the Dáil. I do not know if such an invitation was ever taken up.

I think it true to say that generally defamation proceedings by Dáil deputies were unsuccessful. When the leader of the Labour Party Billy Norton sued the 'Irish Press', he was awarded a derisory £1 which led Sean MacEntee of Fianna Fáil to jibe: "Billy the Quid."

The Government, far from attending to the rights of the citizen, sought in its programme to increase, in effect, the power of the executive. "We will," the Government parties said, "prioritise putting to the people by referendum a number of urgent parliamentary reform issues."

They were to abolish the Seanad; to reverse the Supreme Court judgment in the Abbeylara case to carry out full investigations; and a referendum to protect the rights of citizens to communicate in confidence with public representatives. This last one never appeared as a serious contender for debate - it would have sunk as far as the other two.

But it is worth reflecting on what was sought by reversing the findings in the Abbeylara case. The critical finding of the court was that a sub-committee of the Oireachtas could make a finding of the crime of manslaughter.

The members at the time were adamant that they could make a finding of a criminal offence. The court said no, but held that the Oireachtas could hold enquiries provided basic requirements of fairness were observed.

The Ceann Comhairle has had his hands full dealing with many disruptions with the present Dáil. This may be not because there are so many independents but because there was a very large intake of new deputies who were not as versed as the older hands on the culture and respect that is given to them on the one hand but expected from them on the other.

So what should be done? It should be possible by ordinary legislation to afford a person who has been manifestly maligned to be afforded an opportunity to make his case before the Dáil or one of its committees and to be given the same immunity for its publication as is enjoyed by those calling his rights into question.

It might not be ideal but it would be better than the present situation.

Hugh O'Flaherty is a former Supreme Court Judge

Irish Independent