Dáil Éireann díospóireacht -
Tuesday, 4 May 1993

Vol. 430 No. 2

Sub Judice Rule: Statements.

Minister of State at the Department of the Taoiseach (Mr. Dempsey)

Article 15.10 of the Constitution provides that each House of the Oireachtas has the power to make its own rules. Article 15.12 provides that all official reports and publications of either House, as well as utterances made in either House wherever published, shall be privileged. Article 15.13 provides, inter alia, that Members 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. The Committees of the House of the Oireachtas (Privilege and Procedure) Act, 1976, makes provision similar to Article 15.13 of the Constitution regarding utterances of Members of the Oireachtas at committee hearings — this means that no action can be taken against them outside the Oireachtas no matter what they say. The Houses of the Oireachtas are sovereign under the Constitution and are entitled to legislate and discuss matters of national policy and public importance.

While the application of the sub judice rule has its own merits in ensuring that the judicial process is not encroached upon, or a case prejudiced to the extent that it could lead subsequently to a mistrial, it is obviously widely accepted in the House that the rule as applied heretofore was too blunt an instrument which leant too far in restricting comment whenever there were court proceedings in existence to the detriment of debate of national issues in the Dáil. Over time this had a disproportionate effect on Dáil proceedings and prevented the House from discussing matters of real public concern. The convention of the sub judice rule must be considered against the background of the inherent right and duty of the House to debate any matter considered to be in the public interest. This House will, of course, retain the right to relax the application of the rule further should the occasion demand. The operation of the rule has always been subject to the right of the Dáil to legislate on any matter. Indeed on two occasions previously, for the debates on the Greencore Report and the Cavan rape case, the convention was set aside. In view of the primacy attached to motions of no confidence the application of the rule has also been relaxed in such motions in November of last year and October 1991.

The application of the rule or convention of sub judice, meaning “in course of trial” was a self-regulatory power to restrict debate in the House. By convention for almost 70 years the Dáil has imposed upon itself the voluntary restraint of the sub judice rule in the general desire to avoid the risk of prejudicing judicial proceedings. The risk of prejudice occurs when comment in the Dáil might influence a jury or prejudice the position of parties or witnesses or otherwise prejudice proceedings. On 22 October 1986 the then Ceann Comhairle gave the following description of the sub judice rule:

The purpose of the sub judice rule, which has operated in this House for over 60 years, is to protect litigants, plaintiffs and defendants and ensure that actions coming before the courts are not prejudiced by being discussed in this House which enjoys absolute privilege. If the rule were to be ignored and the House used as a sort of pre trial forum or as an alternative for other court procedures — I have in mind interrogatories and discovery — in my opinion it would undermine our system of justice, bring about unfair judgments, and influences unfairly tribunals, judges and juries.

On Thursday, 8 April 1993 the House passed the following motion:

Subject always to the right of Dáil Éireann to legislate on any matter (and the guidelines drawn up by the Committee on Procedure and Privileges from time to time), and unless otherwise precluded under Standing Orders, a Member should not be prevented from raising in the House any matter of general public importance, even where court proceedings have been initiated:

Provided that:

1. the matter raised must be clearly related to public policy;

2. a matter may not be raised where it relates to a case where notice has been served, that is to be heard before a jury or is then being heard before a jury;

3. a matter should not be raised in such an overt manner so that it appears to be an attempt by the Oireachtas to encroach on the functions of the courts or judicial tribunals;

4. Members may only raise matters in a substantive manner, that is by way of Parliamentary Question, debate on the adjournment and, Motion and so forth where due notice is required; and

5. when permission to raise a matter has been granted, there continues to be an onus on Members to avoid, if at all possible, comment which might in effect prejudice the outcome of the proceedings.

This motion is an attempt to ensure that a fair balance is achieved between the inherent right of the Oireachtas to inquire into and debate matters of public importance, on the one hand, and the need to ensure that any such debate should not prejudice proceedings before the courts, on the other hand. It will open up debate on matters of public concern particularly where so called "gagging writs" were utilised in the past. In effect the intention of the conditions is to strike a better balance in that the benefit of the sub judice rule in the past will be maintained while at the same time allowing matters of public concern to be debated.

There is an element of risk involved in that there can be no guarantee that comments will not be made which may be subsequently regarded as being prejudicial or as interfering with the courts. The onus of responsibility in this new found freedom of debate rests with the individual Deputy. No guidelines or conditions of themselves can afford the same protection that operated heretofore.

It is important that the Chair should not be placed in a position which requires him to make instant rulings during the course of a debate on the admissibility or otherwise of matters sub judice. The Chair should have adequate opportunity to become aware that a matter to be raised is relevant within the context of the motion and to decide whether or not the matter is of general public importance. The long standing ruling of the Chair that “Members of the Judiciary are independent by virtue of the Constitution and they may neither be criticised nor have their rullings referred to in the House except on a substantive Motion” shall continue to apply.

It became clear during the recent debate on Dáil reform when the issue of the sub judice rule was discussed that there is a divergence of opinion on how far debate on matters sub judice should be restricted. It would be laudable, in my opinion, if the Dáil would not silence itself on issues freely spoken about outside the House. Furthermore, the mere issue of a writ should not be allowed to stop discussion in this House. We must be conscious, of course, of the fact that untrue allegations made under privilege in the House against non-members or organisations cannot be challenged in the courts.

Freedom of speech is a fundamental right without which Members would not be able to carry out their duties. Members must be able to speak the truth without fear of retribution. Imposed on this freedom are the constraints outlined in the motion passed by the House; these conditions have been put in place for the simple purpose of ensuring, in so far as they can, that proceedings before a court are not prejudiced by comment in the House which might influence a jury or prejudice the position of parties and witnesses. The Constitution confers specific functions on the courts and the principle of the separation of powers enshrined in the Constitution must be observed. The motion recognises that the courts are the proper place to judge alleged breaches of the law or claims by one citizen against another and the restraints are being adopted out of a respect by this House for the judicial process, the democratic rule of law and the proper upholding of our laws by fair trial proceedings.

It has to be acknowledged that the relaxation of the application of the sub judice rule has been long sought by the Opposition of the day as it inevitably allows a greater number of issues to be raised, which is the modus operandi of Opposition generally. However, with the new found freedom to raise matters which were sub judice, there is an onus on Members to be responsible in their remarks and to avoid the temptation of reacting to the emotional clamour that often surrounds controversial cases before the courts.

Mr. E. Kenny

This is an important extension of the discussions that have taken place in committee and in the Dáil in regard to reform of this House. We must assume that Members are elected to this House in the interest of the people and that they have that interest at heart. In the course of their legislative duties there will be occasions when public demand and opinion require that matters of importance to the nation and the people are raised in this House. For 70 years this Assembly was extremely restricted in that people could not make comments that would be prejudicial to trials, that might lead to unfortunate circumstances for people or organisations outside this House or that might lead to a mis-trial. Again, one assumes that every elected Member understands that they are elected to this House by democratic mandate to carry out their legislative functions in so far as they can and that, as they see it, matters which should be raised can be raised in the House. In that regard it is important that the Government have conceded — if that is the correct word — on the requirement that Deputies from all sides should be allowed raise matters which people in every public house in the land discuss and in so doing that Members would be conscious of their responsibilities under the mandate by which they were elected.

The Minister stated that matters raised in this House cannot be challenged in the courts, but the Committee on Procedure and Privileges should examine that issue. There have been occasions in the past where Members, for one reason or another, made strong allegations under the privilege of this House and, as determined recently by the High Court, no sanctions can be imposed on them arising from such allegation. Therefore, it is important that the Committee on Procedure and Privileges, the regulatory body of this House, should consider if sanctions can be imposed against Members who make wild allegations about witnesses or organisations who are not Members of this Assembly. Nevertheless, it is important that matters of public interest are raised here.

Some years ago a member of the gay community was kicked to death in a public park in Fairview and a great deal of intense and emotional discussion took place in this House about whether statements should be allowed on such a sensitive and important matter and on that occasion statements were allowed. I assume that every Member, and those who will be elected in the future, will respect the relaxation and freedom inherent in this change, which I support.

We should also look at Standing Order 30 in this context. Over the years very few Members have been allowed under Standing Order 30 to raise matters of public importance and urgent necessity. The purpose of this short debate is to explain to Deputies the criteria which will apply and the matters they will be allowed to raise under the relaxed sub judice rule. Standing Order 30 should also be examined in this context. A few years ago Members tried to raise under Standing Order 30 the proposed execution of a foreign journalist in, I think, Iran or Iraq, but the debate was disallowed on the basis that it was not urgent. The person involved went to meet his maker, but the matter was not allowed to be discussed in the House under Standing Order 30. This discussion is important in that it explains to Deputies the matters they may raise, the guidelines laid down for raising these matters and the extent to which they may go in their statements. I assume all Deputies understand that they cannot make comments which might prejudice a case before the courts or being decided by a jury, thereby leading to mistrial.

This change is part of the overall reform package now going through the Dáil. Provided the system operates reasonably well during this session, I understand that from the autumn session onwards there will be a three week plenary session of the Dáil followed by a one week debate on committee work. The relaxation of Standing Order 30 will be critical in the sense that there will not be a plenary session of the Dáil during that week and issues of vital national importance may need to be raised by a mechanism other than by way of Private Notice Question or a question to the Taoiseach. In this context we should consider the relaxation of Standing Order 30 so that some matters can be discussed in the House.

This change is an important step forward. I hope that the Ceann Comhairle will see to it that Deputies are entitled, under the relaxed sub judice rule, to raise matters which they consider to be important, matters which they would not previously have been allowed to raise in the House even though they were discussed openly in all sections of the media and on every street, lane and byway. Giving Deputies the privilege of raising such matters in the House will enable them to lead public opinion and meet the demand that political leaders raise matters of national importance. I trust that in so doing Members will bear in mind that, even though allegations made in this House against individuals or organisations who are not represented in the House cannot lead to the imposition of sanctions on them by the courts, statements made by them in this privileged assembly can have serious repercussions for people outside the House.

I hope that this brief debate will clarify the position in regard to the relaxed sub judice rule, which will make the business of the House more relevant, immediate, fundamental and responsive. The public are very cynical regarding the restraints and blockages in the operation of the Houses of the Oirechtas and I hope that this measure, which is part of the overall package of Dáil reform, will lead to a new and enlightened perception of this House by the public and enable the House to lead on many issues of public importance and to respond to public demands in an effective, proper and fitting manner.

Mr. M. McDowell

I was a Member of this House during the period 1987-89 when these matters first became of considerable public interest and controversy. I presume these issues were controversial before that. During that time the Committee on Procedure and Privileges was so concerned about this matter that it sought advice from counsel nominated by the then Attorney General in drawing up new rules relating to the sub judice controversy. I have to say at the outset that I am somewhat disappointed that it has taken from 1988 until 1993, five years, for this House to face up to an issue which it realised in 1988 was of some considerable importance.

I was struck by a phrase used by Deputy Kenny which underlines to some extent the problems we faced. He said that the Government was conceding something to this House. Of course, the Government of the day does not regulate order in this House; it is the Chair who regulates order, in accordance with Standing Orders which Members put in place of their own free will. Apart from ordering business in the House under the Constitution, the Government has no role whatsoever in the operation of the procedures of this House. It never was, properly speaking, a matter for Government to concede anything in this House. This is not, in the last analysis, a concession made by the Government; we are making a concession to ourselves. We decide what we will allow ourselves to say and what Standing Orders we will put in place for the Chair to interpret and implement on our behalf. This is not a matter for Government, and it never was a matter for it. The sad fact is that this now seems to be almost a concession by the Government when it is not so. Deputy Kenny's phrase is telling in this regard.

The second point I wish to make about the sub judice role is that it seems to cover two distinct areas. The first is the notion referred to by the Minister of State about the separation of powers and the respect of the various organs of State one for the other. The second is the protection of individuals engaged in litigation of a specific kind before the courts. These are quite separate considerations. In so far as it relates to proceedings which are ongoing before a court and the practice which grew up over the years, the sub judice rule was nominally for the protection of litigants; it was not there for the protection of judges. The other rule, that is, the ruling by the Chair of this House on a consistent basis that judges should not be criticised — this was referred to by the Minister of State in his speech — is an entirely different species of animal; it has to do with mutual respect between the organs of State established under the Constitution. There is a view that because judges are independent, as provided for in the Constitution their independence would be over-borne and considerably subverted if this House were to take on itself the role of commentary box on every judicial decision handed down and that in some sense the Judiciary would be performing under the spotlight of constant supervision and correction by political masters in this House. Those are two entirely separate matters: the first is the protection of litigants and the second is the respect owed to the court system.

With regard to the first matter, we, in this House, have been far too protective of the process of litigation over the decades. When one considers that the Judiciary is not likely to be influenced by anything which is said in this House in the way in which it carries out its work and that the issuing of a document, for example, a plenary summons in the High Court or a lesser summons or document in some other court, was sufficient in the past to make any state of affairs to which the document related a no go area for this House, it is obvious in retrospect that we erred totally on the side of caution. The proof of the pudding is that every citizen is free to express his or her views on what is happening in the courts as long as they do not commit an act which might amount to contempt of court. If they make a remark in public which is designed or is likely to have the effect of prejudicing the outcome of court proceedings or, in some sense, embarrassing a litigant and preventing a litigant from having fair access to justice by generating a wave of criticism that effectively denies him or her access to the courts in reasonably calm circumstances, they can be found guilty of contempt of court. I could make remarks anywhere in this city which were perfectly acceptable to the Judiciary and did not amount to a contempt of court, but if they were made here where I have privilege, the same remarks would fall foul of a self-imposed censorship without regard to its fundamental purpose. The rule in relation to sub judice was overly encrusted with practice in this House.

I am glad that there has been a change, a realisation that this was an act of unjustifiable, unwarranted, self-censorship, and that this House has finally addressed the matter in terms which are a good deal more liberal than proposed in the various reports of the Committee on Procedure and Privileges since 1988, which culminated in this resolution having been passed recently. A lot of effort was put into establishing a more restrictive code in relation to sub judice matters. I am glad that finally this matter has been dealt with in terms which are, on the face of them, liberal.

It was not just a matter, as the Minister of State, Deputy Dempsey, implied, of the Opposition of the day always being in favour of liberalising debate and the Government being against it. This is not a concession made by Government; this is a right we accord ourselves. In the course of negotiations leading to the formation of a new Government in 1989 and the revised Programme of Government in 1991 this matter was tabled by my party on two separate occasions, with a view to ensuring that the Government did not obstruct the entitlement of Members to a fair rule in this regard which did some justice to the right of freedom of speech and to Members' rights to say things inside this House which they would be perfectly entitled to say outside the House.

I am slightly worried about clause 2 of the proviso to the Motion which was passed. It seems to me there is a misprint in it that it reads at present:

A matter may not be raised where it relates to a case where notice has been served, that is to be heard before a jury or is then being heard before a jury;

It would appear that some blip has occurred on somebody's word processor there. The wording originally proposed was "notice of trial". There appears to be an error in the text of the proviso which I hope will be picked up and amended at some future stage.

I note also that this is restricted to the courts. Without in any way querying, in a disrespectful way, rulings you have made, a Cheann Comhairle, in relation to the Tribunal of Inquiry into the Beef Processing Industry, I note there is nothing here which changes the basis of the rulings you have handed down in relation to that tribunal. I query why that is so. Why are we liberalising in relation to the courts and retaining a restrictive, self-censoring view of our right to comment on other tribunals established in the public interest?

I note also that the Minister of State has announced to this House that the following long standing ruling of the Chair that shall continue to apply:

Members of the Judiciary are independent by virtue of the Constitution and they may neither be criticised nor have their rulings referred to in the House except on a substantive Motion.

I do not know why a member of Government considers that this is a matter on which he can announce what is to apply in future, since it is a ruling of the Chair. But, even if it is taken as indicative of the wishes of the parties in Government, I do not think that ruling is necessary. One can be independent under the Constitution but can have one's rulings referred to in the House, other than on a substantive motion, without compromising one's independence. It is suggested in the Minister of State's introductory remarks, that for some reason judges' rulings cannot be referred to in the House except on a substantive motion. Effectively, that means that somebody would have to table a motion condemning a judge's ruling on some matter, or perhaps even a proposal to remove a judge under the Constitution before any ruling of a judge can be referred to in this House. That is over-restrictive. I do not know where it comes from as a ruling in relation to the sub judice matter. I do not know why it is relevant thereto but, in so far as it is proferred by the Minister of State as a practice that will continue, I query it; I say it is completely wrong. Why should not somebody in this House refer to a judge's ruling in terms which do not compromise the judge's independence? Have we not had many occasions on which judges' ruling have attracted fair, level criticism by Members of this House, most recently in relation to sentences handed down by the courts.

These changes are welcome but they are not made ex gratia by the Government. I worry very much about the statement of the Minister of State that judges' rulings may not be referred to in this House except on a substantive motion. In a modern, healthy democracy, the Judiciary are quite robust and capable of criticising Government and the Legislature on their failures to take certain steps. They do so frequently in the Supreme Court and elsewhere. Fair criticism of the Judiciary is of the essence of democracy. No judge should require of this House, or of this democracy, that his rulings should not be referred to except on a substantive motion. No judge of any substance or note ever resents, or in any sense tries to inhibit, decent debate and level-headed criticism of his judgments. Independence and immunity from comment are not the same thing; they are very different. If we had a Judiciary immune from criticism it would no longer be independent; it would become a self-serving and distorting feature of our society.

Mr. Dempsey

One is more likely to have level-headed contributions if there is some notice given rather than Members hopping up on the Order of Business.

Mr. Rabbitte

May I make an opening point on a matter that has not really been contested by anybody so far, that is, the reference to the matter under debate as the sub judice rule. To the best of my knowledge — and I am open to contradiction — there is no such thing as the sub judice rule. What we are talking about is no more than a convention that has grown up in the House, self-imposed by Members of the House.

I want to make it clear that no criticism of yourself, Sir, or of your office is implied by this but I have gone back over some letters I and my colleagues have received from you ruling out matters on the basis they were not admissible under the application of the sub judice convention. If one takes a quick look at a cross-section of them one finds they really are instructive. There was, for example, the cost to the State of money due to women under social welfare equalisation arising from judgments of the European Court on Human Rights in the Cotter and McDermott case; allegations of malpractice in the planning system in Dublin; public drugs dealing in Thomas Street in Dublin; the purpose of Garda raids on a named meat plant; the information available to the Department of Tourism and Transport regarding the Aer Lingus Holidays affair; certain matters relating to the Greencore affair; the non-payment of compensation to former Irish Shipping workers; allegations of the fixing of bread prices in certain areas; the collapse of the prosecution in the trial of the two men charged with the murder of a German tourist in the Phoenix Park; and the question of compensation promised to Nicky Kelly. The House would agree that those matters are of legitimate public concern and in many cases warranted action on the part of this House but because of the way in which the sub judice convention was interpreted we were not allowed to deal with them.

In a letter that you wrote, Sir, on 4 October 1991 to my colleague, former Deputy Eric Byrne, you indicated that you had disallowed the following question: if the Minister for Social Welfare would give a breakdown of the cost to the State of the £200 million due to women as a result of the Cotter and McDermott case. That was a notable case from the point of view of the women who had been affected in terms of their entitlement to social welfare. The decision was made by the European Court. Admittedly, other cases were pending in the Irish courts. The question to the Minister for Social Welfare was not permitted.

While the Nicky Kelly case is still topical, we are not permitted to raise it. The allegations of malpractice in the planning area in Dublin are the source of considerable and extensive public interest and concern. Furthermore, the question of the Garda raid on a meat plant is an interesting one. It is important to say that legal action was not always initiated; on occasion the mere threat or prospect of legal action seemed to be sufficient to adduce this rule or convention. In this case questions, in addition to those raised by Deputy McDowell, can be raised about the manner in which we have debated the conduct of the tribunal of inquiry into the beef processing industry. There were matters which had nothing to do with the issues under investigation which were of public importance and which this House ought to have discussed at that time.

For example — I am not referring to any specific issue under investigation — the question of the public interest and of who was there to prosecute it raised its head. Until the day the tribunal completes its work this will remain a pertinent issue. At an early stage in the affairs of the tribunal I was annoyed and angry about the manner in which counsel for the Attorney General interpreted their role. Having considered the matter over a number of months I can see that counsel for the Attorney General were confronted with a genuine dilemma in that it is difficult to prosecute the public interest if as a result one may damage one's own clients.

Mr. O'Malley

That did not stop them damaging some of their clients in order to uphold the interests of others — they were confronted with no dilemma there.

Mr. Rabbitte

In relation to their mandate on behalf of the State authorities and Ministers they seemed to take a partisan and selective view of who were entitled to have their interests protected. Distinctions were made as between Ministers, apparently on the basis of party affiliation. On many occasions fundamental matters of public interest were let go and not prosecuted before the tribunal unless one of the other parties to the tribunal took them up.

Mr. L. Fitzgerald

Can the Deputy substantiate the allegation that a distinction was made as between Ministers on the basis of party affilation?

Mr. Rabbitte

Absolutely.

Proinsias De Rossa

You did not want the tribunal to continue and ran a campaign to have it stopped.

An Ceann Comhairle

The Chair feels the tribunal should be allowed to do its work.

Mr. Rabbitte

That is one aspect which warranted a discussion in this House because the raison d'être of the tribunal was to clarify these issues of public interest and, if they were not adequately provided for, the chairman of the tribunal had to concede that counsel for the tribunal had to deal with them. This House should have been allowed to discuss that matter.

In addition, the question of Cabinet confidentiality became a major issue.

Mr. M. McDowell

We should have been represented in the Supreme Court.

Mr. Rabbitte

This House should have been given the opportunity to discuss that matter and recommend certain courses of action. While I accept, Sir, that you have done no more than apply precedent and convention, we have been overly protective. In a situation where there is such an imbalance in the House as between the Executive and the Opposition the sub judice convention should not be used as a shield behind which the Executive can hide.

I mentioned the Irish Shipping case which arose in the early days of the life of the Coalition Government in 1984. To this day we have not been able to raise issues on behalf of former employees of Irish Shipping in this House. This surely is an unreasonable application of that rule.

I agree with Deputy McDowell, who knows a great deal more about this matter than I do, on the question of the ability of this House to criticise decisions of the Judiciary. Reasonable criticism is necessary in terms of the independence and status of the Judiciary but this matter has not been considered sufficient here.

On a number of occasions Fine Gael have raised the question of whether people should be sent to the stocks for abusing the privilege conferred on us. I do not know what their fear is or from what misty depths of the past it harkens, but we have always been overly responsible in this House and I am sure all Members of the House will continue to be.