A Constitutionally guaranteed ‘freedom of speech’, or is the Dáil just going a bit rogue?

By far (for me anyway) the most interesting story of the week took place yesterday in the south. And it’s a real poser. Not least because it involves a clash between the common perception of parliamentary privilege in the UK and what it means under the Irish Constitution.

The disclosure made in the Dail yesterday by Deputy Catherine Murphy was both partial and (unlike a similar disclosure by Sinn Fein’s Mary Lou McDonald’s earlier in the year) a deliberate run against an injunction of the courts against such public disclosure.

By and large it brought silence from the media (bar of course the broad shoulders of Broadsheet.ie). The media’s legal advice was largely based on UK precedent of the Trafigura case in which it became obvious that privilege under UK is only extended in absolute terms to Parliament and its official reports and not to secondary others.

But the thing is, the Irish Constitution is pretty unambiguous.

 

Bunreacht privilegeIn other words, TDs can pretty much say what they like and journalists and bloggers can pretty much report everything they say, though going further than that without corroborating evidence is a likely to turn into a pit of legalistic vipers.

The UK’s Parliamentary Papers Act (1940), which governs reporting of the doings of the British Parliament, is severely circumscribed in terms of what can be reported…

  • Publications under the House’s authority enjoy absolute privilege against civil or criminal proceedings (s.1);
  • Correct copies of such publications also enjoy absolute privilege (s.2);
  • Extracts are protected by qualified privilege. The burden of proof is on the defendant to show that the publication was without malice (s.3).

So, it seems, no one can do anything to prevent a pure report of these proceedings, whether they are justified or not. The Irish Constitution, as Micheal Martin pointed out at the weekend, is a document of democratic law and above the power of kings or taoisigh to manipulate…

However, as Stephen Collins notes, Standing Orders of the Dáil (the only regulatory means available in this case) state…

“A member shall not make an utterance in the nature of being defamatory and where a member makes such an utterance it may be prima facie an abuse of privilege, subject to the provisions of this Standing Order.”

Under the standing orders the Committee of Procedure and Privileges (CPP) is empowered to investigate claimed abuse of privilege and recommend sanctions.

The CPP ruled last December that Sinn Féin deputy leader Mary Lou McDonald had abused privilege by naming alleged tax offenders but it did not have the power to implement further disciplinary procedures.

The CPP has since sought legal advice about how it can impose more effective sanctions for similar abuses in the future.

In any clash between the courts and the constitution, the courts are likely to come out second best. That ought to put a deeper onus on parliamentarians to get their stories straight. That appears not to have been quite so in the McDonald case.

The jury is out on this one, and the government is taking no further chances by assenting to Fianna Fail calls for a further debate on the nature (use and possible abuse) of parliamentary privilege… [Although, perhaps a more intellectually honest debate is exactly what’s need.]

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  • ben__w

    “In any clash between the courts and the constitution, the courts are likely to come out second best.”

    How does that work? Any such clash is adjudicated by the courts.

  • handelaar

    The jury is not out.

    The jury will never be called to deliberate. The Irish-language version of the same clause (which, when it differs from the English, is supreme) doesn’t say “privileged”; it says “free from legal proceedings”. It is constitutionally impossible for any action at any level of the court system to be based on anybody reporting something said in the Dáil or Seanad, and not for that reason be immediately dismissed.

    This is not open to debate and (as publisher of KildareStreet.com) Denis can bite me.

  • Korhomme

    The Parliamentary Papers Act was passed in 1840 (slight but confusing typo) and was presumably incorporated into the law of Ireland at independence. Has it been subsequently modified or repealed?

    Despite it, the media in the UK are often shy of fully reporting what’s said in the Commons, for example when an MP named suspected terrorists. They say that the member named individuals, but don’t report the names.

    Injunctions and ‘super-injunctions’ (where the media can’t even report on the existence of an injunction) are slippery things. They so often come into the public domain anyway, and serve to show how egocentric and insecure some people are.

    And such injunctions can only be enforced in the jurisdiction of the court. If an article is published outside this jurisdiction, the court is powerless; it might well be that the story appears in papers published in London and available in the Republic. (Exactly the opposite happened with the ‘Camillagate recordings’.)

    WordPress hosts Slugger, presumably on servers in the US (the site of publication therefore) where the freedom of speech is guaranteed. (Better ask a lawyer.)

  • Jag

    “Despite it, the media in the UK are often shy of fully reporting what’s said in the Commons, for example when an MP named suspected terrorists.” They weren’t so shy when they reported Peter Robinson claiming under parliamentary privilege that Belfast property developer Peter Curistan was an IRA moneyman.

    “Using parliamentary privilege, the DUP deputy leader claimed Peter Curistan was linked to “IRA dirty money”.”http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/4698832.stm

    Having said that, it was reported that Peter accepted £50,000 damages from the Sunday World for libel connected to that allegation.

    So, the message appears to be for British media, you can report allegations but not present them as fact.

  • the rich get richer

    If we didn’t have this Parliamentary Priviledge (free from legal proceedings ) then we would be entirely defenceless from the rich and the super rich.

  • Jag

    Thing is though, if you were to add together the audiences for Catherine Murphy’s speech on KildareStreet, Oireachtas, Broadsheet and (in Ireland) Alex Thompson’s blog, it will be <20.000. It might be more, given the publicity in the mass media about the injunction and controversy but it's not going to be huge.

    Irish TV and radio and print media (not to mention the digitial offerings) reach nigh on 100% of the adult population.

    On Thursday night TV3's Vincent Browne show (guest hosted by newspaper man Ger Colleran) said that it couldn't report what Catherine Murphy said in the Dail because of contact from Denis O'Brien's lawyers. The Browne show frequently shows extended clips of proceedings in the Dail, which must be as close to the Art 12 in the Constitution as you can get (audio and visual), but it shied away from such coverage of Catherine Murphy's comments on orders from TV3's management.

  • Jag

    Incidentally, there is another episode in the past 18 months which has gone largely unreported but which has an arguably-greater effect in diminishing the Irish parliament’s ability to hold citizens and organisations to account.

    At the end of 2013 and start of 2014, the public accounts committee called in Angela Kerins, the boss at Rehab, a disabled people’s charity which received government funding. The committee hearing majored on Angela Kerins’s salary.

    Angela was called back twice for a grilling, but didn’t turn up subsequently, claiming the hearings had been so stressful that she had become ill. Angela then initiated court proceedings against the committee and there is likely to be a full hearing later this year (they’re still at the document discovery stage). Angela is claiming she was unfairly treated (in my opinion, she was certainly badgered and subjected to highly aggressive and hostile questioning) and, I understand, she was subject to questioning that she wasn’t expecting.

    While the jury is out, so to speak, in the Angela Kerins case, since then, witnesses at committee hearings have been dealt with using kid gloves. The banks giving two fingers to mortgage arrears and interest rates are a particular case in point, but so too are the milksop banking inquiry hearings. Witnesses now get a list of questions in advance of hearings, and the chairman of hearings appears ruthless in restricting discussion to those questions. Contrast the Irish committee hearings today with the British media hearings or US banking hearings.

  • Jag

    I think what Mick means is that courts are required to primarily uphold the Constitution ahead of any court precedent. But it will certainly make for interesting proceedings – if you’re the judge who granted Denis O’Brien his injunction restricting RTE from reporting details of his loans at IBRC and then, you’re called on to restrict the exact same details revealed under parliamentary privilege, how do you rule.

    I can’t see any constitutional right to privacy in the Irish constitution, and even if one were to be introduced, it presumably would have to be balanced with the right of parliament to freedom of speech.

  • NMS

    Handelaar – “táid saor
    ar chúrsaí dlí cibé áit a bhfoilsítear.” I would suggest that a more accurate translation is “they are free from legal consideration, wherever published.” To me, you understate your point.

  • NMS

    K – The Act is not listed http://www.irishstatutebook.ie/1840/1840.html. It also specifically mentions in Section 1, the House of Commons and the House of Lords http://www.legislation.gov.uk/ukpga/Vict/3-4/9/section/1.. There was also amending legislation in 1908 & 1992. I think it is clear it does not apply to Ireland (the State).

  • Kevin Breslin

    There are some links limits, just ask Willie O’Dea.

  • Korhomme

    Interesting, thank you for the information! (The gov.uk link didn’t work for me.)

  • Korhomme

    Ah, libel. Another area where the law has been reformed in Britain, but remains unchanged in NI. If London is no longer the libel capital of the world, there are hopes/fears that this title might pass to Belfast.

  • NMS

    Try http://www.legislation.gov.uk/ukpga/Vict/3-4/9/introduction , this opens up a page earlier and just move on a page.

    Generally the Irish Statute Book site lists all old UK legislation which had application post 1922. It is maintained by the Attorney General’s Office and lots of other interesting information and links.

  • JohnTheOptimist

    A week is a long time in politics. A week ago Enda Kenny proclaimed the ‘Republic of Love’ – it hasn’t lasted long. A week ago Enda was the hero of trendy modern urban liberal Ireland. A week ago Enda was being acclaimed by the tumultuous throngs at Dublin Castle. A week ago Enda could have had any man in Dublin he wanted. A week ago Enda was the dashing hero of Ireland’s twitteratti and social media. A week later, Enda is in hiding from them as they scent his blood. The nation’s hero has gone to zero in one week. Enda should have remained loyal to his traditional conservative rural base, the people who elected him and who tend to be a lot less fickle.

  • Jag

    Poor Enda, the “Patriot”

    From:
    It was roses, roses, all the way,
    With myrtle mixed in my path like mad:
    The house-roofs seemed to heave and sway,
    The church-spires flamed, such flags they had,
    A year ago on this very day

    To:
    Thus I entered, and thus I go!
    In triumphs, people have dropped down dead.
    “Paid by the world, what dost thou owe
    “Me?”—God might question; now instead,
    ‘Tis God shall repay: I am safer so.

  • JohnTheOptimist

    Catherine Murphy should repeat her allegations outside the Dail. Then, assuming Denis O’Brien sues, the courts can decide. Using Dail privilege to attack someone’s character is an abuse. The same Catherine Murphy was a member of The Workers’ Party in the 1980s. Not only was that party pro-Soviet and wanted Ireland (and the UK) ruled from Moscow, but it was also the political wing of the Official IRA. Even in the 1980s, that organisation was still carrying out bank robberies and beatings around Tyrone (where I lived), although thankfully by that time, and in contrast to a rival outfit with a similar-sounding name, it had given up murdering its political opponents, like my near-neighbour, Senator John Barnwell. I have no evidence whatever that Catherine Murphy was involved in any way with these activities. And, I’m sure she wasn’t (although being a member of a political party linked to those who were involved seems a bit morally dubious). But, if I was a TD and in a particularly obnoxious mood, would it be morally ok for me to stand up in the Dail and claim that she was? And should she have recourse to the courts to stop the media reporting my defamatory allegations?

  • Korhomme

    Thanks again!

  • Jag

    Democracy is about balancing powers and checks and balances.

    Even if Catherine Murphy is the divil incarnate, she should be allowed make claims that are patently in the public interest (dealings at a bank which is owned by the Irish taxpayer). The media, when reporting those claims, should of course aim for balance and seek comment from those affected (in this case both O’Brien and the former CEO of IBRC dispute the claims, and refer to “falsehoods”). But in a healthy democracy, we must protect politicians’ freedom of expression on matters of public interest.

    If Catherine Murphy were to repeat the claims outside the Dail, she would no longer enjoy Constitutional privilege. Elected politicians would be gagged if they were subject to libel proceedings in a jurisdiction which is the most hostile in Europe (Belfast eat your heart out, Dublin’s libel laws and payouts make Belfast look like the Land of the Free). Irish politicians are by-and-large not wealthy enough to mount legal defence campaigns and if they lose, they could be bankrupted and automatically lose their seats.

    If the public don’t like what Catherine Murphy is doing, they can always vote her out in 12 months time.

    And whatever about Catherine Murphy’s provenance, we do know from the Moriarty Report that clouds hang ponderously over Denis O’Brien’s past.

  • JohnTheOptimist

    No one is disputing that any TD should be free to make any allegations they like in the Dail and not be sued for them. Its a red herring. The question is the reporting of them. Any newspaper is free to report what any TD said, but, if the allegations are false and defamatory, the person defamed should have the right to sue the same newspaper, and the fact that the newspaper was repeating what a TD said in the Dail shouldn’t make them immune from being sued.

    If we say that a newspaper can report any allegations made by a TD in the Dail, however false and defamatory, without the person defamed having the right to sue the newspaper, then we are giving TDs the power to effectively destroy any non-TD that they have an issue with.
    Suppose a TD falsely says in the Dail that he has evidence that Joe Bloggs is a paedophile and has abused 50 children. As long as its confined to the Dail, the damage is limited – few will have heard the allegation. If the media then report these allegations to every household in the country, Joe Bloggs is effectively destroyed. All I’m saying is that (assuming he’s innocent of the allegations), it is unfair that he can not sue the media.

  • Jag

    Well, TDs have in fact named individuals as alleged abusers. Regina Doherty TD and others did that last year with respect to Martin Morris, the uncle (or “uncle through marriage”) of Mairia Cahill. Yet, Martin Morris denied the abuse and he was defending the criminal charges in 2014 when the trial was abandoned.

    People will make up their own minds about Martin Morris, but he’s innocent in the eyes of the law.

    And if TDs abuse their privilege, then why would people re-elect them?

    We are talking about relatively rare instances of Dail privilege giving rise to controversy. The Constitution provides for Oireachtas proceedings to be reported in the media verbatim, and I think that’s a particularly worthy Article to protect and trumps the unfettered right of a citizen to privacy or reputation (that’s not to say the media aren’t required to be responsible, seek comment from those affected and place the reporting in context).

    That’s how it works in the UK – ask Peter Curistan and that’s how it works in Ireland.