4 Jun 2015, 11:04
Article 15 of the Constitution confers a number of privileges on each House of the Oireachtas and on its members individually to enable them to perform their constitutional functions.
While the term “privilege” is largely undefined in standing orders or parliamentary practice, it is generally taken to mean the rights that members have over and above ordinary citizens, and without which they could not discharge their functions and duties as parliamentarians.
One of the most important and fundamental privileges enjoyed by members is the privilege of freedom of speech.
Article 15.12 provides that —
“All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged”.
Article 15.13 further provides that —
“The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”.
The Supreme Court in one of the leading cases in this area found that the privilege afforded to Members under these articles is far-reaching and absolute and Article 15.13, in particular, clearly provides that the sole body to which members of the Dáil are amenable is the Dáil itself.
The privilege of freedom of speech in parliament is recognised and provided for in constitutions or basic laws across the world. It enables members of parliament to function in an independent way and speak freely, without the possibility of censure by an external entity or authority. However, members are subject to the rules of debate and amenable to the House itself for what they say; and it is this amenability to the House that provides the protection against the abuse of privilege.
Dáil Standing Order 59 makes members amenable in respect of utterances in the nature of being defamatory. An ‘utterance in the nature of being defamatory’ is defined as “an utterance which, in the opinion of the Ceann Comhairle or of the Committee on Procedure and Privileges, 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 associations 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”.
Paragraph (1) of the standing order provides 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, subject to the provisions of this Standing Order”.
In considering a matter under the Standing Order 59, the Ceann Comhairle or Committee on Procedure and Privileges is required to take into account the following factors:
(a) whether the Member raised the issue in a responsible manner, acted in good faith and ensured, as much as possible, that the remarks were soundly based,
(b) the totality of the record, including any rebuttal by Members present,
(c) any withdrawal of the remarks by the Member in question, and
(d) the extent to which the matter was already in the public domain (media reports) or the Member had a reasonable excuse for making the remarks.
Also, under paragraph (10)(b) of the standing order, ”any 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, may give prior 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 standing order”.
The full text of Standing Order 59 is contained in an appendix to this note.
ENDS/
Appendix - Standing Order 59
(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 Standing 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 by 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 Standing Order,
(ii) setting out the reasons why the person claims the said utterance was in the nature of being defamatory and why the said utterance prima facie constitutes an abuse of privilege,
(iii) requesting that the person be able to incorporate an appropriate response in the parliamentary record, if the Ceann Comhairle is satisfied that—
(c) the member's request or the subject of the submission is 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, or
(d) it is not practicable for the Committee to consider the member’s request or the submission under this Standing Order, or
(e) taking into account the totality of the parliamentary record (including any rebuttal of the utterance concerned by other members), prima facie no abuse of privilege has occurred,the Ceann Comhairle may decide that no action shall be taken in respect of the member’s request or the submission.
In any other case the Ceann Comhairle may—
(i) 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, 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, or
(ii) 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 Standing 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 Standing Order—
(i) 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,
(ii) in considering a request or submission 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;
(c) the Committee shall have discretion to publish a submission referred to it under this Standing Order or its proceedings in relation to such a submission, and may lay minutes of its proceedings and all or part of such submission before the Dáil.
(5) In any report which it may make to the Dáil on a request or submission under this Standing Order, the Committee may make any of the following recommendations:
(a) that prima facie no abuse of privilege has occurred and 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 a member has made an utterance in the nature of being defamatory and 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, following consultation with such person, be published in the Official Report or be laid before the Dáil or recorded in such a manner as may be deemed appropriate by the Committee, or
(ii) that the member who made the utterance be required 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: Provided that, if the member refuses to make a personal explanation on foot of such recommendation, the Ceann Comhairle shall at the commencement of business on the next sitting day, or at the earliest convenient opportunity, on which the member is present, reprimand the member in his or her place.
(6) Any decision taken by the Committee under paragraph (5)(b) of this Standing Order shall require the support of three-quarters of the members present and voting.
(7) Notwithstanding the provisions of this Standing Order (save the provisions of paragraph (6), which shall continue to apply), the Committee, following consideration of a request or submission under this Standing Order, may make such recommendations as appear to it to be required in the interests of all concerned.
(8) A document laid before the Dáil under this Standing 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 (11) of this Standing Order,
(ii) unreasonably adding to or aggravating any such adverse effect, injury or invasion of privacy suffered by a person.
(9) In considering a matter under this Standing 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) the totality of the parliamentary record, including any rebuttal of the utterance concerned by other members,
(c) that the said member made a personal explanation in effect to withdraw the defamatory nature of the utterance, and
(d) 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.
(10) Notwithstanding the provisions of this Standing Order—
(a) any 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, 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 Standing Order,
(b) 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.
(11) For the purposes of this Standing 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 associations 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 Standing, Select or Special Committee or a sub-Committee thereof.