I move:
That in accordance with the recommendation of the Dáil Committee on Procedure and Privileges, with effect from 31st May, 1995, until further notice in the 27th Dáil, the following be adopted as an additional Standing Order of Dáil Éireann:
53A (1) 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 Order.
(2) (a) If the defamatory nature of the utterance is apparent at the time it was made during the course of proceedings, the Ceann Comhairle shall direct that the utterance be withdrawn without qualification.
(b) If the member refuses to withdraw the utterance without qualification the Ceann Comhairle shall treat the matter as one of disorder: Provided that the member may claim that the matter be referred to the Committee on Procedure and Privileges in which case no further action shall be taken thereon by the Ceann Comhairle at that point.
(3) If the defamatory nature of the utterance is not apparent at the time during the course of proceedings and at the earliest opportunity but not later than two weeks after the making of the utterance:
(a) the alleged abuse of privilege is raised by a member with a request that it be considered by the Ceann Comhairle or referral to the Committee on Procedure and Privileges directly is sought by a member of way of motion, or
(b) where a person who has been referred to by name, or in such a way as to be readily identifiable, in the Dáil, makes a submission in writing to the Ceann Comhairle—
(i) claiming that the person has been adversely affected by the making of an utterance in the nature of being defamatory within the meaning of this Order,
(ii) requesting that the person be able to incorporate an appropriate response in the parliamentary record,
if the Ceann Comhairle is satisfied:
(c) that the member's request or the subject of the submission is not so obviously trivial or the submission so frivolous, vexatious or offensive in character as to make it inappropriate that further action be taken or that it be considered by the Committee; and
(d) that it is practicable for the Committee to consider the member's request or the submission under this Order
the Ceann Comhairle may——
(i) decide that no action is required in respect of the member's request or the submission, or
(ii) require the member who made the utterance to make a personal explanation to the House in effect to withdraw without qualification the utterance made or to clarify otherwise the circumstances that gave rise to the utterance as may be deemed appropriate, or
(iii) refer the member's request or the submission to the Committee.
(4) Where the request or submission is referred to the Committee:
(a) The Committee may decide not to consider the request or submission referred to it under this Order if the Committee considers that the subject of the request or submission is not sufficiently serious or is frivolous, vexatious or offensive in character, and such a decision shall be reported to the Dáil.
(b) If the Committee decides to consider a request or submission under this Order, the Committee may invite the member who made the utterance and such other members as the Committee may deem appropriate to appear before the Committee to put his or her case.
(c) The Committee shall not publish a submission referred to it under this Order or its proceedings in relation to such a submission, but may present minutes of its proceedings and all or part of such submission to the Dáil.
(d) In considering a request or submission under this Order and reporting to the Dáil the Committee shall not consider or judge the truth of any statements made in the Dáil or of the submission.
(5) In its report to the Dáil on a request or submission under this Order, the Committee may make any of the following recommendations:
(a) that no further action be taken by the Dáil or by the Committee in relation to the submission; or
(b) if the Committee decides that prima facie an abuse of privilege has occurred—
(i) that a response by the person who made the submission, in terms specified in the report and agreed to by the person and the Committee, be published in the official report or be laid before the Dáil or recorded in such manner as may be deemed appropriate by the Committee, or
(ii) may require the member who made the utterance to make a personal explanation to the House in effect to withdraw without qualification the utterance made or to clarify otherwise the circumstances that gave rise to the utterance as may be deemed appropriate, or
(iii) if the member refuses to make a personal explanation, the Ceann Comhairle shall at the commencement of business on the next sitting day on which the member is present, reprimand the member in his/her place provided that any decision taken by the Committee under this paragraph shall require the support of three quarters of the members present and voting.
(6) A document presented to the Dáil under this Order:
(a) in the case of a response by a person who made a submission, shall be succinct and strictly relevant to the questions at issue and shall not contain anything offensive in character; and
(b) shall not contain any matter the publication of which would have the effect of:
(i) unreasonably adversely affecting or injuring a person, or unreasonably invading a person's privacy, in the manner referred to in paragraph (9) of this Order,
(ii) unreasonably adding to or aggravating any such adverse effect, injury or invasion of privacy suffered by a person.
(7) In considering a matter under this Order the Ceann Comhairle or the Committee, as the case may be, shall take into account the following:
(a) whether the member who made the utterance did so in a responsible manner, acted in good faith, and ensured, as far as is practicable, that the utterance reflecting adversely on a person was soundly based,
(b) that the said member made a personal explanation in effect to withdraw the defamatory nature of the utterance, and
(c) the extent to which—
(i) the substance of the utterance was already in the public domain by way of reports in the media; or
(ii) the member had reasonable excuse or otherwise for making the utterance.
(8) Notwithstanding the provisions of this Order:
—a member who considers that it is in the public interest for him or her to make an utterance which could be construed as being in the nature of defamatory, he or she may give prior private notice to the Ceann Comhairle of his or her intention to make such an utterance and the reasons therefor; and such notice shall be taken into account in the consideration of the application of the provisions of this Order.
—the Ceann Comhairle may at any time on his or her own volition refer an utterance in the nature of being defamatory to the Committee.
(9) For the purposes of this Order:
An "utterance in the nature of being defamatory" shall mean an utterance which, in the opinion of the Ceann Comhairle or of the Committee could be construed as being defamatory if made other than in the course of Parliamentary proceedings whereby a person who has been referred to by name or in such a way as to be readily identifiable has been adversely affected in reputation or in respect of dealings or association with others, or injured in occupation, trade, office or financial credit, or that the person's privacy has been unreasonably invaded, by reason of that reference to the person;
"Committee" shall mean either the Dáil Committee on Procedure and Privileges or a sub-Committee thereof;
"Proceedings" shall mean parliamentary proceedings of the Dáil, a select or special Committee or a sub-Committee thereof.'.".
I pay tribute to my predecessor, now Minister for Defence and the Marine, Deputy Barrett, who, in the very short period of five months from his appointment as Government Chief Whip last December, was so effective in pushing the implementation of the Government's Oireachtas reform proposals.
The motion before the House arises from the commitment in A Government of Renewal to ask the Committee on Procedures and Privileges:
to examine and report on the procedures and remedies required to ensure privilege afforded to Members is carefully used at all times, and that the rules of misconduct as they apply to any misleading of the House are revised.
Exactly a month after his appointment and the Government coming to office, Deputy Barrett so requested the Committee.
Article 15.13 of the Constitution states, inter alia, 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.
That is a very esteemed privilege and places a heavy responsibility on Members.
There have always been allegations, rightly or wrongly, about the abuse by Members of the privilege concept in this House. In an effort to eliminate such allegations and maintain the high standing which Members should have in our society, the three parties coming into Government last December agreed that the matter should be referred to the Committee on Procedure and Privileges for examination and report.
The Committee on Procedure and Privileges decided at the end of January to establish a sub-committee representative of the five biggest parties in the House on the issue of Members' privilege. The sub-committee was directed to consider the matter under the following headings:
1. What constitutes abuse of privilege?
2. How to provide the necessary mechanism to examine if an abuse has occurred.
3. Rules of misconduct as they apply to any misleading of the House.
4. Sanctions.
The issue of misleading the House was felt by the sub-committee to be a completely different and wider issue from that of utterances in the House which deserved consideration separately at a later stage. The more substantial issue of penalities or sanctions was not addressed by the sub-committee because of possible constitutional implications.
The sub-committee recommended that the wider aspects of privilege i.e. those relating to protection of parliament should be considered at a later stage.
Perhaps these matters might be appropriate for consideration by the Constitution Review Group recently established by the Government and the proposed all-party committee on the Constitution to be established next year.
The sub-committee which, therefore, addressed itself solely to the narrow aspect of Members' privilege as it applies to defamatory remarks or utterances by Members in the House, submitted its report to the Committee on Procedure and Privilege on 23 March. The committee to which we entrust such sensitive matters adopted the report on 5 April with only one dissenting voice — that of the Progressive Democrats' representative — to the approval of the draft sessional order contained in the report of the sub-committee.
The draft Standing Order now before the House is well balanced and will put the absolute privilege of Members on a sounder footing. While rather long it is innovative, and yet simple, being based on the Australian Senate procedure which has been operating successfully since 1988. The sub-committee under the Chairpersonship of Deputy Dukes is to be congratulated on its work.
An alleged defamatory remark may no longer be treated and summarily dismissed as one of disorder but can be given the benefit of further consideration by the Committee on Procedure and Privileges.
The strict parliamentary rule in regard to naming persons can be relaxed by the introduction of the proposal which puts in place a mechanism for dealing with alleged defamatory remarks for the first time. This will enable naming of persons in the House which is more in line with everyday usage in, for example, the media.
The idea of allowing an individual who felt slighted to complain to the Committee on Procedure and Privileges, while maintaining. A Cheann Comhairle, your discretion in the matter will make the public feel they now have an added measure of protection for their good name. Any organisation or group of individuals which strictly sets high levels of performance and quality for its members and rejects vehemently any deviation from those standards will gain in stature and general regard. This effect can only be good for the standing of the House and the perception of the integrity of its Members. Those who oppose the draft Standing Order have a duty not just to specify their opposition but to spell out an alternative approach, which this has not been done to date.
There has been some misinformed comment about the proposed Standing Order that its content in some ways impinge on the constitutional rights of Members in that it bypasses the Ceann Comhairle. Have the critics examined the draft Standing Order? If they did do so, surely they would have been aware of the central role placed on the Ceann Comhairle in respect of alleged defamtory utterances. I have even read criticism stating that, by disciplining a Member of the House, it would prejudice any subsequent legal action in a court of law. Surely any organisation, whether it be the Law Society, the Golfing Union of Ireland or whoever, is entitled to impose standards and disciplinary measures on its members. Why should the Houses of the Oireachtas not have the same right — especially when it is requested, decided and accepted by those Members through their representatives on the Committee on Procedure and Privileges?
Let us for a moment reflect on what is proposed in the Standing Order. The first subparagraph states that 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. Subparagraph (2) deals with withdrawal of utterances, subparagraph (3) with the manner in which allegations may be investigated, subparagraph (4) with what happens when the request or submission is referred to the Committee on Procedure and Privileges, subparagraph (5) with the report of the committee to the Dáil, subparagraph (6) presentation of a document to the Dáil under the Order, subparagraph (7) with what the Ceann Comhairle shall take into account, subparagraph (8) with exceptions while subparagraph (9) defines a defamatory utterance.
In the Programme for Government openness, transparency and accountability are mentioned more than a few times to emphasise the importance we attach to those principles. This draft Standing Order gives a tangible meaning to them along with the other Oireachtas reforming measures we have introduced to date e.g. the publication of a list of promised legislation to assist the Ceann Comhairle and Members; the provision that Ministers and Ministers of State may discuss, through the legislative committees, proposals for legislation; the introduction of procedures to allow legislative committees to hear evidence from persons and organisations; the provision that all appointees to high office shall attend at relevant committees subject to the legal constraints of their office; the provision that Ministers and Ministers of State may appear before committees to discuss current policies and their implementation in their Departments.
The proposed Standing Order is a sessional one and can be reviewed in due course by which time Members will have practical experience of how it operates.
The sub-committee of the Committee on Procedure and Privileges noted that submissions to committees of the Oireachtas are not covered by privilege and recommended that this matter be addressed as soon as possible. Deputies will be aware that the drafting of a Bill on Privilege and Compellability of Witnesses appearing before Oireachtas committees is well advanced. It is intended that the Bill will grant absolute privilege to witnesses attending before Oireachtas committees. The draft Bill which was being prepared by the previous Administration had to be reviewed by the incoming Government in the light of our commitments in the policy document A Government of Renewal. This review is now almost complete and I hope that the Bill will be published this session.
For all the reasons I have outlined and for the protection of the basic right to privacy and integrity, I commend this motion to the House. In doing so, I hope I can continue the good work of my predecessor in ensuring that further Oireachtas reforming measures are brought forward speedily.