One of our most important freedoms is under attack. The freedom of politicians to discuss matters openly in Dail debates is under insidious threat from a number of sources. This freedom is known as Dail privilege, and is an important factor in the make-up of a modern parliamentary democracy. In my view, it is vital we defend its use.
Mattie McGrath TD recently said he was not willing to use Dail privilege to name Sinn Fein TDs Martin Ferris and Dessie Ellis in relation to the murder of prison officer Brian Stack. In the end, my Fine Gael colleague, Alan Farrell TD, did so. This was not the first time Ferris had been named under Dail privilege; in 2005 then minister for justice Michael McDowell used it to say he was a member of the IRA’s army council.
Clare Daly TD was relying on Dail privilege last October when she accused a District Court judge of causing problems in the administration of justice. Denis O’Brien is taking legal action as a result of comments about his affairs with IBRC by two TDs, claiming these were an abuse of Dail privilege. The state is defending these actions in order to protect the freedom of parliamentary debate.
“These privileges are designed to protect democracy and date from a time when our freedoms were not as assured as they are now
There are a number of Dail privileges which allow us to carry out our job. They can be found in article 15 of our constitution, which says all official reports of the Oireachtas and utterances made in either house wherever published “shall be privileged”. Another privilege is that TDs and senators cannot be arrested going to and returning from, and while within the precincts of, either house.
These privileges are designed to protect democracy and date from a time when our freedoms were not as assured as they are now. The privilege against arrest is designed to prevent a tyrant from being able to stop the Dail passing laws he dislikes by arresting TDs on their way to the Oireachtas.
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Perhaps the most important privilege is the freedom of speech in debates. This protects TDs and senators from any form of civil or criminal liability based on their statements in parliament. They should be free to speak openly and say things others can’t. This leads to open debate and ensures citizens are properly represented by their politicians.
Parliamentary sources are also protected by Dail privilege. No TD or senator can be forced to reveal the sources of information they rely on in parliamentary debates, nor can they be penalised for refusing to do so. This privilege does not extend beyond the Dail and its use is regulated by the house.
Of course if I voluntarily, consciously and deliberately repeat a privileged statement outside the Dail then I am not protected. Traditionally if someone felt they were defamed by a privileged statement, they would challenge the person making it to repeat it outside where they could be sued. If the TD does not do this, it shows they are not prepared to stand over the statement.
There are safeguards in place to prevent abuses. For example, the committee on procedure and privileges (CPP) found that Sinn Fein’s Mary Lou McDonald abused Dail privilege in 2015 when she alleged six former politicians had offshore Ansbacher accounts. The public can use this committee to have the Dail record corrected if they believe an incorrect remark has been made. The CPP found McGrath abused Dail privilege in 2013 in remarks he made about an abuse victim. However, the severity of sanctions available to the CPP should be strengthened.
Abuse of privilege is entirely different from the use of privilege. TDs and senators should not be afraid to invoke it, nor should they be prevented from doing so by people outside the chamber. It allows us to speak on important issues without fear of repercussions. We should be able to speak in parliament without having to keep looking over our shoulders. If freedom of speech is restricted in our parliament then where would it exist?
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Josepha Madigan is a Fine Gael TD