Monday 27 May 2019

We must redefine limits of parliamentary privilege - but in Dáil, not court

Businessman Denis O'Brien leaving the Four Courts on Thursday Photo: Collins Court
Businessman Denis O'Brien leaving the Four Courts on Thursday Photo: Collins Court

Theresa Reidy

Across the democratic world, it is common practice that members of parliament have parliamentary privileges. But the limits on where they begin or end can be a contentious issue, as evidenced by this week's hearing at the Four Courts involving Denis O'Brien versus the State.

Today, parliamentary privilege refers to the provision of rights and legal immunities for parliamentarians but its origins can be traced back to the Stuart parliaments in England. In its earliest form, parliamentary privileges often included provisions on the dignity of members of parliament, decorum in parliament and protection from arrest for members travelling to and from parliament and during sessions of parliament.

In its modern incarnation, there are two main inter-related areas that are subject to controversy, absolute freedom of speech for parliamentarians and the right of parliament to control its own business.

Absolute protection of the freedom of speech of parliamentarians is a central plank of parliamentary privilege. Contributions made by members of parliament in parliament are outside of the scope of the courts. In tandem with that protection, most countries also have a specific protection for the media which allows them to provide factual reporting of contributions delivered in parliament and that too carries a protection from scrutiny in the courts.

This was an especially vital protection in the past when newspapers often provided the only access to happenings in parliament for citizens. Parliament tv channels, online transcripts of debates in parliament and social media mean that citizens have many more ways of accessing this information now but this does not change the fundamental principle that accurate reporting of parliament carries privileges.

Parliamentary privileges developed over time as necessary tools to allow parliament to do its business. If parliament is to be effective in scrutinising government, it must be able to do so without fear of retribution in the courts. Furthermore, as representatives of the people, members of parliament must be able to freely raise the concerns of their constituents.

Parliamentary privilege in the Oireachtas

Absolute protection of free speech and the power to set and oversee its own agenda are set down in the Constitution for the Oireachtas and further developed in legislation.

Specifically, the defamation laws make clear that the contributions of members of the Oireachtas have absolute privilege. The Dáil standing orders (number 59) set down procedures for citizens who feel their rights have been breached by statements in the Dáil and there are also oversight provisions of members of the two houses.

However, these provisions do not seem to be adequate to deal with current controversies.

Contributions made by a growing list of TDs on matters including the conduct of gardaí and the financial affairs of former politicians and citizens are subject to debate and discussion within the parameters of parliamentary privilege and specifically whether the rights of citizens have been breached.

It was always intended that free speech protections should be used sparingly and only in the case of grave matters affecting the public interest, and herein lies the problem. The public interest is so nebulous a concept, that it is almost meaningless. As government has come to oversee and regulate almost every aspect of life, marking out public interest from spurious or indeed malicious contributions has become much more difficult. Defining the limits of parliamentary privilege is a major challenge for the Oireachtas but Ireland is not alone in dealing with these types of issues.

UK controversies

In the UK, several scandals on cash for questions, super injunctions and MP expenses brought aspects of parliamentary privilege onto the agenda. A controversial green paper introduced in 2012 resulted in a much wider debate in parliament and a joint committee looked at the issues raised. The green paper sought to clarify the existing position on parliamentary privilege and suggested mechanisms by which it could be codified.

The UK does not have a written constitution, so many of the privileges were based on parliamentary practice rather than laws. A joint committee considered the recommendations and, interestingly, it could be seen to have asserted the rights of parliament to adjudicate on the limits of its own privilege.

The Dáil might benefit from adopting a similar strategy. Although the legal context is different, some aspects of the political environment are very similar. Citizens have become much more distrustful of politicians and parliament, and recent years have seen the election of many more TDs intent on pushing at the boundaries of parliamentary privilege. But it is in the Dáil that these discussions should take place.

Who defines the balance?

We have a separation between the political and the legal arms of our State. Politics is a serious business. When citizens go to the polls and choose their TDs, they are making a solemn decision.

TDs must be free to scrutinise the government and represent their constituents without fear or favour. If they transgress the appropriate line between the public interest and the entitlements to privacy and fair procedure of individual citizens, there must be appropriate sanction but that sanction can only come from two places; parliament or the people, to protect the proper functioning of parliament.

It is nearly 20 years since standing order 59 was introduced to provide a right of reply for citizens whose rights were breached by statements in the Dáil.

This provision is clearly not adequate, nor indeed are the sanctions for TDs who breach the rights of citizens in their statements but it is the Dáil that should adjudicate on what mechanism might replace them.

In a functioning democracy, the courts will always provide a route for citizens to assert their rights, but the framework which balances public and private interests must be set in parliament.

Dr Theresa Reidy is a political scientist in the Department of Government at University College Cork

Irish Independent

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