Damn the Consequences?

Martin O’Donnell explores the recent controversies surrounding parliamentary privilege and assesses how far the privilege should extend

Leaders’ Questions is usually something of a theatrical affair in the Dáil. Like its counterpart in the UK, Prime Minister’s Question Time, it has an element of “Punch and Judy” to it, although perhaps without the rowdiness of our British neighbours. As central as it is to Irish politics, it can seem timid and boring. Leaders attempt to point-score in the hope of getting on the one o’clock, six o’clock, and if they are lucky nine o’clock news. Mícheál Martin says Enda Kenny should have done this, Gerry Adams says Enda Kenny has forgotten this, and so forth.


At the start of February, Brendan Howlin began in the typical fashion. His chosen topic was the inquiry being set up to investigate allegations that there were orchestrated campaigns against whistleblowers by senior Gardaí in order to discredit them. He began by lamenting the lack of opposition input in the terms of reference of the inquiry, in the typical mode of Leaders’ Questions, before departing from the set script.


“By any stretch of the imagination, these allegations would be defamatory if untrue and said in a public forum, so why could he raise them?”


Howlin argued that it was not “appropriate” for Garda Commissioner Noirín O’Sullivan to stay in her position while the inquiry was taking place and then laid a serious allegation before her: “This morning a journalist contacted me and told me they had direct knowledge of calls made by the Garda Commissioner to journalists during 2013 and 2014 in the course of which the Commissioner made very serious allegations of sexual crimes having been committed by Sergeant Maurice McCabe”.


By any stretch of the imagination, these allegations would be defamatory if untrue and said in a public forum, so why could he raise them? Regardless of the veracity of the claims, Howlin has publically named and given specific allegations that one would imagine the commission of inquiry would investigate and discern whether or not they were true so why did he raise them? The answer to both these questions centres around the concept of parliamentary privilege.


Petty privilege?


“She was found to have abused privilege by the committee, but subsequently the matter came to nothing. She was not required to issue an apology, she was not disciplined and there was little media follow-up on the issue.”


Parliamentary privilege has its beginnings in Britain. In the aftermath of the Glorious Revolution of 1688, the Bill of Rights enshrined the idea that “freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament” in order to protect parliament from interference from the monarchy. In an Irish context, parliamentary privilege was codified at the foundation of the state in the 1922 constitution, and this was broadly carried forward into Bunreacht na hÉireann in 1937. Article 15.12 states that “all official reports and publications of the Oireachtas […] and utterances made in either House wherever published shall be privileged”, and Article 15.13 states that “The members of each House of the Oireachtas […] shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”.


Ultimately this means, and has been interpreted by the courts to mean, that in Ireland, members of the Oireachtas have an absolute right to freedom of speech which only the Oireachtas itself may police. The Committee on Parliamentary Procedure headed by the Ceann Comhairle is meant to police “abuse of privilege”, especially defamatory statements, and may after a specified process discipline members who abuse parliamentary privilege.


Nonetheless, a recent example has illustrated that abuse of privilege may have no consequences in reality.


In 2015, Mary Lou McDonald received a dossier from Gerard Ryan, a former senior civil servant, that contained allegations that Ansbacher accounts used to evade tax were not properly investigated. Rather merely than bring up the issues raised in the dossier, she elected to name senior politicians mentioned in the dossier, in spite of the fact that the allegations were unproven. It should also be noted that the allegations were strenuously denied by the individuals and had previously been investigated by a number of state institutions, including the Revenue Commissioners, An Garda Síochána and other tribunals of inquiry. She was found to have abused privilege by the committee, but subsequently the matter came to nothing. She was not required to issue an apology, she was not disciplined and there was little media follow-up on the issue.


Do we need Parliamentary Privilege?


“He has put a black mark on a person’s name in the public consciousness on the basis of hearsay.”


Considering that parliamentary privilege may be abused to tarnish an innocent person’s name without substantial consequence, should we support an absolute right to privilege?  


In a parliamentary democracy like Ireland, parliament must be free from interference. Privilege endows elected members with the right to free speech and free debate so that matters of public importance (that may be prevented from being brought up for fear of legal retribution) can be debated effectively without interference from specific individuals, other bodies of state or the courts.


In the recent past, this has allowed for significant issues to be debated and brought to public attention when certain state bodies have chosen to ignore issues with the veil of confidentiality protecting them. John Deasy highlighted issues with the HSE and the “Grace” foster abuse scandal. Similarly, Mick Wallace and Clare Daly have been able to highlight the cases of Garda whistleblowers Maurice McCabe and John Wilson. In both these cases, the issues were dealt with sensitively without naming specific individuals insofar as possible, while still bringing the issues to light.


In an ideal world, parliamentarians would not require regulation with regard to privilege – they would understand that it must be used sparingly and appropriately, as to abuse privilege would undermine faith both in the right and in the parliament itself. They would only speak to facts they were certain of, would not defame individuals unnecessarily and would do so only in the public good.


Ultimately, however, it is clear from Mary Lou McDonald’s case that there are minimal consequences for abusing privilege in the Dáil. It may be necessary for the Oireachtas to use its constitutional powers more appropriately – censure, suspension and fining can all be used by the Ceann Comhairle in his or her role. These punishments at the very least would show members that there are consequences to their actions, and the punishments would likely lead to increased media exposure of abuses of privilege. We do not need to remove the absolute privilege, but certainly a case can be made for increased sanctions to ensure the privilege is used appropriately.


In the case of Brendan Howlin, he has made the argument that the public have a right to know about the allegations. Certainly, if the the allegations are true, we do. He alleged that not just senior Gardaí but the head of An Garda Síochána was herself trying to discredit a whistleblower within the ranks. In these circumstances, her continuation in the role would be untenable. However, in spite of his protestations, Howlin cannot be entirely certain of the veracity of the claims – this is clearly a case of hearsay, or, as the Ceann Comhairle put it, a case of “dúirt bean liom go ndúirt bean léi”.

Considering the gravity of the allegation, and the fact that he does not have the requisite proof to back it up, Howlin should not have used parliamentary privilege so cavalierly. He has put a black mark on a person’s name in the public consciousness on the basis of hearsay. Individuals, no matter their stature, are entitled to the presumption of innocence. In using the very privilege he claims to hold so dear, he may have permanently undermined its legitimacy.

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