Tuesday 25 October 2016

Andrew Lynch: Dail privilege is a precious right that must not be abused

Independent TD Catherine Murphy
Independent TD Catherine Murphy

"With great power comes great responsibility."

These words may be most familiar from a Spider-Man movie, but they also apply to the bitter legal dispute that has dominated political and media debate in recent days.

The age-old practice of Dail privilege is starting to come under fierce scrutiny - amid allegations that some TDs have been exploiting it just to throw mud at their favourite targets.

Following a clarification by High Court Judge Donald Binchy yesterday, the media are now free to report a Dail speech delivered by independent TD Catherine Murphy last week.

Making full use of parliamentary privilege, it included dramatic claims about the relationship between businessman Denis O'Brien and the Irish Bank Resolution Corporation (IBRC).

O'Brien insists that Murphy's allegations are not only based on stolen information, they are also plain wrong, and former IBRC chairman Alan Dukes has backed him up.

While the rights and wrongs of this argument still have to be thrashed out, a couple of obvious questions arise.

Should Dail privilege give TDs carte blanche to say whatever they like without the fear of having to prove it in court? Equally, is there any point in trying to block reportage of Oireachtas speeches in an age when social media allows them to spread like wildfire?

Like so many other things, parliamentary privilege is something we inherited from the British. It goes all the way back to 1689, shortly after Oliver Cromwell and his fellow MPs had cut the head off a king who tried to boss the House of Commons around.

England became a monarchy again, but on the understanding that its representatives at Westminster would enjoy complete freedom of speech.

When Eamon de Valera drew up the Irish Constitution in 1937, he obviously decided that the British had at least one good idea. Article 15:12 clearly states that TDs and senators have full legal protection while speaking in Leinster House and cannot be sued for slander or contempt of court.

Most politicians are naturally very attached to this perk, with Tanaiste Joan Burton describing it yesterday as "a cornerstone of our democracy".

Until recently, Dail privilege was seen as a gift only to be used under exceptional circumstances. There was outrage in 1942 when a senator seized his opportunity to read out loud from a banned book that explained the difference between a cow and a bull.

Nobody, however, took advantage of it to go public about bribery in Dublin County Council.

Now a new breed of more aggressive politicians are turning Dail privilege into a dangerous weapon. Last month, Independent Left TD Clare Daly accused gardai of covering up a murder, claiming that a member of the force had been ordered by his superiors to lie about being present when a civilian was shot dead.

The Garda Representative Association responded with outrage and asked her to repeat those comments outside the Dail chamber - an invitation she has so far refused.

Even more controversially, Sinn Fein's Mary Lou McDonald used Dail privilege last November to name six former politicians who allegedly cheated tax with offshore Ansbacher bank accounts. She referred to one as "S Barrett", which prompted Ceann Comhairle Sean Barrett to furiously point out he was not the man in question.


In fact, Mary Lou's claims turned out to be a ball of smoke, and she was rapped on the knuckles by the Dail's watchdog Committee on Procedures and Privileges. But the people whose reputations suffered so badly are still waiting for her apology.

All this means that the Denis O'Brien-Catherine Murphy row was an accident waiting to happen.

Clearly we need proper sanctions for TDs who abuse Dail privilege, with a cut in wages the only language some of them will understand.

At the same time, the elephant in the room is Ireland's incredibly restrictive libel laws - and politicians might like to address that issue before they start bleating about freedom of speech.

Even Spider-Man, after all, was sometimes guilty of not using his powers wisely.

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