Dáil Éireann díospóireacht -
Wednesday, 31 May 1995

Vol. 453 No. 7

Members' Privilege: Motion.

Minister of State at the Department of the Taoiseach (Mr. J. Higgins)

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at the time it was made during the course of proceedings, the Ceann Comhairle shall direct that the utterance be withdrawn without qualification.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.

Mr. D. Ahern

I congratulate the Minister of State on his appointment as Government Chief Whip and wish him well in the future. I also thank his predecessor Deputy Seán Barrett, for his assistance during the past five months.

While we are critical of the lack of progress in certain areas, in this instance the Government is fulfilling its commitment in the Programme for A Government of Renewal to investigate the question of privilege in relation to remarks made by Members in this House. With Deputy Dukes and others, I was a member of the sub-committee of the Committee on Procedure and Privileges set up to examine this question. We decided that rather than consider the broader aspects it would be best to look at a more restrictive aspect of privilege in relation to utterances made in this House, sometimes without justification. This approach was adopted not because the Government decided this would be a good thing to do but because a number of complaints had been made by people who felt they had no redress outside the House for remarks made inside the House. While some criticism has been expressed in the media about the current proposal, it has to be accepted that we are trying to be reasonable, fair and balanced in dealing with everyone.

The Chair has a responsibility to ensure that debates are conducted in an orderly fashion. Under a convention he is able to curtail the Member in making remarks about a person outside the House. The Ceann Comhairle, the Leas-Cheann Comhairle or the acting chairman often reprimands a speaker who names a person outside the House. That is a good convention. Unfortunately — there have been many examples in recent years — it has been, and continues to be, abused despite the best efforts of the Chair.

When I was first elected to this House I felt it was a privilege to represent the people to be able to say what I liked about people outside it without their having any recourse but this privilege cannot be abused. I was brought up to believe and it was reinforced by my legal training that people are entitled to their good name and to have some recourse if it is called into question. It is only right that the House should consider this aspect and endeavour as best it can — without doing away with the right of Deputies to say what they wish — to ensure that remarks made by the Deputy will later have to be justified by him or her. The subcommittee therefore focused on the narrow aspect of utterances made on the floor of the House. We are really only reinforcing the concept that there is always recourse to the Ceann Comhairle and the Committee on Procedure and Privilege. The net issue in all of this is the right of reply by people outside the House. This proposal was approved by the Committee on Procedure and Privileges although I accept one party was not in favour; it will have to justify its own position. What we are doing in effect is giving people outside the House the right of reply to utterances made against them in the House. We are taking on board what has been the position for many years in the Australian Senate to which aggrieved persons can make a submission. Under this proposal the right to make a submission will be restricted and subject, rightly, to stringent rules. It is most important that this be the case, otherwise there could be a deluge of submissions on frivolous matters. This has been taken into account and the order, as proposed, tries to ensure that submissions will only be accepted where the Committee on Procedure and Privileges is satisfied that there has been, prima facie, an abuse of privilege. In that event it is possible, not definite, that the contents of the submission would be included in the report of the Dáil and the affected person would at least have their say. In other words, the Deputy would not be the only person to have a say in the matter.

This issue has been the subject of a number of complaints from people. We have heard many times about allegations made on the floor of this House in regard to major issues such as the beef tribunal, but what brought this matter to the attention of many members of the Committee on Procedure and Privileges was that people feel aggrieved at statements which have nothing to do with the beef tribunal or other much publicised issues but relate to small issues that are particularly important to them.

One such instance relates to references made by Deputy Doyle in an Adjournment Debate about Beaumont Hospital. At the time Doctor Hugh Staunton felt obliged, through solicitors, to complain to the Committee on Procedure and Privileges. The complaint was considered but no formal report was issued. The Committee on Procedure and Privileges decided there was no abuse or breach of the privilege on that occasion and so informed the complainants. While these issues were put on the public record, the complainants did not have a right of reply or recourse to the courts. Even though the committee believed there was no privilege abuse, the person who felt, and probably still feels aggrieved did not have an opportunity to respond.

Another complaint made by a man who felt aggrieved at allegations made in this House at a time when there was heightened political pressure on the Government related to what I believe was the most ludicrous statement ever made in this House, which was subsequently deemed to be totally unfounded, that is the allegation by Deputy Rabbitte, now Minister of State, or two-thirds Minister of State, about a letter on the file of the Brendan Smyth case which, he said, would rock the foundations of the State. The person involved stated that he was not a member of Opus Dei or any religious organisation. He felt that the allegations made on that occasion were wrong and that something should be done about it. He wanted some recourse in that regard but that was not possible. Neither was it possible for the other people implicated, some of them very senior figures, to do anything about the matter.

I was a member of the sub-committee of the Select Committee on Legislation and Security that examined this matter and I requested that Deputy Rabbitte be brought before the committee but other members believed that was not necessary, mainly because his remarks had been found to be unwarranted. I questioned two of the witnesses, Dr. Martin Mansergh and, I think, Deputy Reynolds — or perhaps it was the Tánaiste, Deputy Spring — I cannot remember — on the effect those remarks had on the political situation at the time. Again I would point out that the remarks were totally unwarranted and untrue, yet Deputy Rabbitte had his reward. Regardless of what side of the House one is on, such remarks should not be made.

Another complaint was made recently by a person from the midlands about references by a Deputy in this House in November 1994. The man complained to the chairman of the Committee on Procedure and Privileges, stating:

While speaking he [the Deputy] referred to a person, although not named can only be regarded as myself and proceeded to defame me personally and professionally. The defamation has been confirmed to me by my Solicitor. As you are aware the doctrine of Parliamentary Privilege appears to preclude me from taking action through the Courts, so I am requesting you to ask the Deputy to justify his comments.

The complainant also wrote to Deputy John Bruton who was then Leader of the Opposition asking him to take action in this regard. This person wanted to sue the Deputy who made those remarks but could not do so due to the absolute privilege. If those remarks had been made outside this House I have no doubt court action would have been taken.

Those are some examples of complaints made and there have been many more down the years. Members of this House should remember that while we have a privilege we should not abuse it. Some measure is necessary to deal with this matter and the sessional order will in no way take away the privilege of Members, as has been suggested. It is a procedure whereby citizens will have a right of reply on issues they believe affect them. It will provide for some censure of Deputies in the event of their peers believing that they have in some way overstepped the mark in terms of statements made.

On balance this is a good order. It was discussed by the Fianna Fáil Party Front Bench who believe that in view of what happened in recent years it is a balanced and reasonable approach to a problem which has increased down the years. The Fianna Fáil Party supports this sessional order. I congratulate the three Government parties on their attitude to this matter. I am delighted that particularly the Labour Party and Democratic Left fully support the order because they more than the Fine Gael Party have made a trade of making allegations in the House. I would like to hear the personal views of Deputy Rabbitte, the Tánaiste, Deputy Spring, and former Members such as Barry Desmond on this sessional order.

Deputy Rabbitte was recently interviewed on "Morning Ireland" about the order and I am not sure whether he knew what he was talking about because he spoke about the Bill on privilege and compellability of witnesses which is a completely different matter. Perhaps between that interview and now the Minister of State has had an opportunity to consider the sessional order. I am glad that he and his party, and the Labour Party, fully support it. Perhaps as a result we may not have a repetition of some of the outrageous statements made by them in recent years.

Fianna Fáil fully supports the right of reply of people outside this House to remarks made inside the House. Despite what some of the psuedo liberals say, that this order will in some way prevent Deputies from saying what they like in this House — I do not agree — they must examine their consciences because people outside this House, who are wary and aware of remarks made here, must be protected. I fully commend this sessional order to the House.

Ms O'Donnell

It is depressing that other parties in the House are apparently supportive of these measures and do not see hazard lights implicit in the terms of this order. That indicates a failure to understand parliamentary democracy and the checks and balances essential in it. It indicates a failure to understand the yet unevolved role of this House as an inquiring body as distinct from a legislative body. We are only starting to discover that this House has a duty not only to legislate, but to call the Government of the day to account and have an inquiring role through committees and procedures of this House by putting down parliamentary questions.

It is notable that the measures in the motion before us would not have been debated and would have been passed without debate with many Members and the general public being unaware of what they propose to introduce if I had not insisted that it be debated. We will not win a vote on this motion, but a dissenting voice should be heard because these proposals are far reaching and diminish an important tool of democracy, the ability of individual Members to make controversial utterances which have often been made in the House and found to be true.

The motion before us proposes to introduce new procedures for dealing with alleged abuse of privilege by Dáil Deputies. Ironically, those proposals have been made by the Committee on Procedure and Privileges, one of its main functions being to protect the Members and privileges in this House in a parliamentary democracy. That is particularly important vis-á-vis the Government of the day. Mine was the only dissenting voice at the sub-committee established by the Committee on Procedure and Privileges to examine these issues. This order will permit Deputies to be reprimanded. It was obvious when we considered it that there would be constitutional difficulties in introducing any sanctions in this House. There was a backsliding from that position and we found we were skirting the edges, trying to put in place an unnecessary procedure because those in place dispensed by the Ceann Comhairle over the years are adequate. This motion is a weak-minded attempt to introduce an unnecessary procedure under the guise of Dáil reform. Has the Attorney General looked at these proposals?

Mr. D. Ahern

Leave him out of it.

Ms O'Donnell

I am not allowed to mention his name?

Mr. D. Ahern

Leave them all out of it.

Mr. Callely

It appears he has not been looking at very much.

Ms O'Donnell

I will be hauled before the Committee on Procedure and Privileges for referring to him. Has anybody with legal training considered these proposals because they will put in place a right of reply to people outside this House arising out of alleged abuse of privilege by Members. There is a constitutional guarantee that a Member shall not be amenable, because of utterances, for any statement made in this House. This proposal introduces a measure whereby people outside the House can bring in lawyers and the Committee on Procedure and Privileges could be turned into an alternative Circuit Court. This proposal has implications for the Committee on Procedure and Privileges. We are involving ourselves in an unnecessary procedure which will diminish the right of free speech of Members. It is sadly ironic that in this of all weeks, when we are still reeling from the fall-out from issues of accountability, the House should be asked to agree to diminish the important parliamentary right of free speech and debate in the public interest.

The proposals are unnecessary and the procedures in place adequate. The system of regulation through the Ceann Comhairle has always worked well in the past and Members very rarely abuse Dáil privilege. In the 75 years since the foundation of the State there have been very few abuses of Dáil privilege. One of the features of the last 75 years is how little those rights have been used and how seldom there has been a recognition of the power of individual Deputies to raise issues of public interest challenging the Executive which might be termed scandalous, hurtful and defamatory, but they are not defamatory if they are true.

This proposal makes presumptions about utterances that Deputies might make by introducing a prima facie assumption that an utterance in the nature of being defamatory can be subject to the rigmarole of procedure. A diagram was introduced at the sub-committee of the Committee on Procedure and Privileges illustrating the existing procedure which is simple and effective. We were then shown a diagram of the proposed new procedure which is a monumental disaster. When this complicated new mechanism, an alternative system for dealing with a Member, is introduced or a member of the public can write to the Committee on Procedure and Privileges which may involve all types of investigations, a Member may be called before that committee to account for himself or herself. I challenge the competency of that committee to make a finding of fact that something is defamatory. It could take several months to investigate matters, particularly if a Deputy does not facilitate the committee by refusing to reveal the source of information and claims a constitutional right not to reveal that source while claiming the right to make allegations. While that rigmarole of procedure is being followed it appears that a motion of substance concerning similar allegations is not allowed to be moved during the stages of that procedure. In other words, a substantive motion could not be tabled in the House while an internal investigation by a Deputy's peers is under way. Hazard lights should be going on all over the House concerning this proposal, but my party is the only voice challenging the right of the Committee on Procedure and Privileges in this matter.

When I was appointed to the sub-committee I said that our party opposes in principle any attempt to interfere with Dáil privilege with a view to diminishing the important and constitutionally protected right of a Dáil Deputy to raise matters of public importance without fear of sanction or reprimand inside or outside the House. Dáil privilege is a vital tool of democracy. Putting questions is probably the only way that the Dáil, via Members representing the people, can hold the Executive to account. We all know from bitter recent experience, not only in this Administration but in the previous Government, that there is a serious culture of evasion influencing the way in which questions are replied to in this House. Failure to answer questions resulted in the beef tribunal, the Brendan Smyth affair, the Masri and the Arcon affairs. Privileges of this House are being persistently abused by Ministers failing to answer questions truthfully and straightforwardly. That is one of the main recommendations which emerged from the report of the inquiry into the beef tribunal. It was clear from the evidence heard during the beef tribunal that if questions had been answered properly and straightforwardly there would have been no need for a tribunal.

The orginal brief of the Committee on Procedure and Privileges was to examine the issue of Members' privilege as set out in Deputy Barrett's letter of 16 January 1995 to the committee, which asks the Committee on Procedure and Privilege to examine and report on the procedures and remedies to ensure that the privilege offered 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. We do not have the whole picture, but a focus on the individual rights of Members and their potential abuse of Dáil privilege. The bigger issue of Ministers misleading the House is not dealt with in this measure as that was much too big to tackle. Why is it necessary to proceed with this order, particularly following a week when the Dáil was seriously misled?

I was a member of the special sub-committee established by the Committee on Procedure and Privilege to examine these matters and report back to the House. Members will note that the order is much narrower than the original brief of the Committee on Procedure and Privileges. The questions of abuse of parliamentary privilege and offences against Parliament have been omitted. The House should deal with matters relating to offences against Parliament committed by Ministers who fail to account to the House on State management. The order refers to an "utterances in the nature of being defamatory". Implicit in that is the curious assumption that anything derogatory is necessarily defamatory, unless the Member proves otherwise. It is fallacious to assume that a Member is always wrong. As we know Members have frequently been right. The order introduces a prima facie presumption that such utterances may be an abuse of privilege. That is wrong and we oppose it in principle.

Members should recall that allegations made on 10 May 1989 in respect of export credit insurance were denied in terms of outrage and abuse by the then Minister, Deputy Ray Burke. The Deputy making the allegation was accused by the Chair of abusing privilege when in fact the only abuse of privilege was by the then Minister, not by Deputy O'Malley. At approximately the same time, Deputies Desmond and Mac Giolla made allegations about malpractices in certain Goodman factories and were roundly abused both inside and outside the House.

Mr. D. Ahern

They certainly did.

Ms O'Donnell

Accusations were made of national sabotage and of a reckless attempt to cause serious damage to our beef industry. To bring the matter into more recent focus, had I alleged in the House two weeks ago that the Attorney General's office was failing deliberately to deal with correspondence from solicitors for the victims in the Fr. Brendan Smyth case and if I had gone further — had I known it — and suggested that there was a conflict of interest between the Attorney General and Mr. Matthew Russell, there is no doubt I would have been roundly abused. Under these regulations I would have been hauled before the Committee on Procedure and Privileges and accused of abusing my privilege by naming people outside the House. While I would be careful not to name people outside the House, if, for example, I were criticising the DPP, the chairmen of State boards or making statements about corruption in Government Departments, it would be necessary to name them. That privilege should exist.

Mr. D. Ahern

It does.

Ms O'Donnell

If we fail to get answers to questions in the House — as is usually the case — frequently the only recourse for a Member is to make allegations under privilege. That is an important tool of the House. The party of which the Minister of State, Deputy Rabbitte is a member created a trade in allegations. Perhaps they believe they will always be in Government and do not want Members on this side of the House to enjoy benefits they are enjoying. I would like to hear the comments of the Minister of State, Deputy Rabbitte, in this regard. If this order were passed without debate, many Members would not be aware of its implications.

Privilege did not accidentally become a feature of parliamentary democracy. It is enshrined in the Constitution, having been for centuries an essential tool for raising matters of public importance. The fact that a Member may in the white heat of politics and debate go a little too far in making a political point or raising an issue of public interest does not justify this House or, in particular, the Committee on Procedure and Privileges which is supposed to protect the rights of the Dáil to diminish or restrict privilege. It is extraordinary that the committee, which is an all-party private committee of the House, chaired by the Ceann Comhairle, should put forward this incongruous proposal diminishing the power of this House to hold the Government to account. One of the most important functions of the committee is to assert, not diminish, restrict or curtail, the rights of Members.

The procedures of the House are pitched to favour the Government. We are all aware of how the Taoiseach last week managed to transfer a difficult question to another Minister, but then decided to take responsibility for it. He had the power to manipulate the procedures of the House to avoid answering an awkward question and to suit his own administrative and political convenience. When he eventually took the question he failed to answer it on the grounds of fair procedures. Those same fair procedures were applicable at 10 p.m. that evening when he revealed the information he withheld from me and the House at 3 p.m. in the afternoon. On "Morning Ireland" the following day the nation listened in disbelief to the Taoiseach justify his actions by claiming that the Deputy did not ask the relevant question.

Following last week's events we are all aware the House can be abused for political and administrative convenience. It can be thwarted for the sake of a personnel matter. The Taoiseach made a calculated choice to suspend the House's right to receive a reply to a parliamentary question to give him more time to deal with a personnel matter. I challenge his right to do that. This House had the right to receive a factural reply to that question. In the past week the rights of Members of the House have been set aside at the whim or convenience of the Government. We oppose these measures. The Ceann Comhairle's restrictions in dealing with such matters are adequate and most Members do not abuse Dáil privilege. They use it only when they have come to the end of their tether in trying to get replies to questions and must make an allegation under privilege to bring a matter into the public domain. The only tool a Deputy can use for bringing a matter into the public domain is to raise it in this House.

I challenge the capacity of the Committee on Procedure and Privileges to find as fact that something I say in the House is defamatory. Only a court can so determine. Many utterances may be outrageous, hurtful and, in the nature of being defamatory, they could be deemed to be so, but they may also be true. This new mechanism represents a pyramid of unnecessary procedure which could take a long time to implement. It is proposed under the badge of renewal, is regressive and introduces an unnecessary restriction. Also, apart from abusing and seeking to interfere with individual Members' rights, it introduces a right of reply to people outside the House. The Constitution states that any utterance in this House shall not be amenable to any court or authority outside the House. While we are entitled to order the procedures of the House, we are not entitled to diminish the rights enshrined in the Constitution to ensure free debate. Article 15.10 of the Constitution provides:

Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

Article 15.12 states:

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 states:

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 the basic constitutional framework to which we should adhere.

For a nation of writers, poets, dramatists and great orators which has expressed itself very ably over the centuries, we place very little value on free speech. This motion is another example of whittling away free speech in this most important Chamber where it must be protected. The motion must be resisted not only because it is vital in a democracy that elected representatives participate freely in parliamentary debate but also because the Constitution provides that Deputies are only amenable to the House. They are not and never have been amenable to any person outside this House, and that is how it should be.

Mr. J. Higgins

They will not be.

Ms O'Donnell

This is a measure introducing a right of reply where powerful people who have been mentioned in this House can come into this House with lawyers and have——

Mr. E. Byrne

That is not true.

Ms O'Donnell

There is no right in the Constitution——

Mr. E. Byrne

Lawyers are not allowed in this House.

Ms O'Donnell

There is a pack of them in the Attorney General's Office.

Mr. E. Byrne

There is not any facility for Members to bring lawyers into this House.

Acting Chairman (Mr. Foxe)

Deputy Byrne will have time to contribute shortly.

Ms O'Donnell

Deputy Byrne would do well to consult with his allegator colleagues in his party who have made his name in the House by using privilege properly by raising issues of public importance without fear. The Deputy, as a member of that sub-committee, is colluding with the other parties in this House in diminishing the rights of Members.

Any sanction or reprimand introduced on foot of this order will be worn by this party as a badge of honour. We will not adhere to these procedures.

Mr. Dempsey

I am somewhat taken aback by Deputy O'Donnell's concluding remarks that her party will not be amenable to this order. That is not the way we should conduct our business. The Deputy is entitled to her opinion on this measure, as is her party, but I found that some of her arguments would give one cause to have second thoughts. However, I support this motion.

In his opening remarks, the Minister of State, Deputy Higgins referred to the fact that Deputy Barrett brought forward this measure. If the Minister of State can lay his hands on a copy of the aborted Fianna Fáil-Labour pact, which was substantially subsumed into the Programme for A Government of Renewal in the area of Oireachtas reform, he will find that it already contained this proposal.

I accept Deputy O'Donnell's point that most Members respect the privilege they have in this House and have respected it in the past. I would not like to see that privilege diminished but, unfortunately, over the past seven years since I came into this House, a number of Deputies have abused it and gone beyond the bounds of the normal decent behaviour we would expect of people operating under privilege. Those Members should be made amenable to the House and to a committee of the House, not to anybody outside it, as has been suggested.

Mr. M. McDowell

The Deputy should name them as this is the last day of privilege.

Mr. Dempsey

The three most recent cases involved the Minister of State Deputy Rabbitte, the Minister of State Deputy Doyle and Deputy Paul McGrath. They made scurrilous allegations in this House without having a shred of evidence to support them. I have no difficulty with some of the allegations made here about the beef tribunal. Serious concern was expressed by Deputies who raised questions here in the House, a subsequent investigation took place and we know its outcome. I have a difficulty, however, with a Deputy standing up in this House and making the most outrageous statements without a shred of evidence to support them. He or she may act on hearsay or because of an article read in a newspaper. That has been happening more frequently in the recent past.

I have no difficulty with the general cut and thrust of political debate in this House. The office of the Attorney General, which is very much in the news at the moment, can become involved in the cut and thrust of the political scene because the Attorney General is a political appointee and the Taoiseach is responsible for him in this House. I have no difficulty with people making allegations in regard to how he or anyone else carries out their business. That is not what we are talking about; we are talking about personal allegations levelled against people outside of this House who have no means of defending themselves. The cases to which I referred are cases in point and it is for those reasons I am supporting this sessional order. I am happy this is sessional order rather than a Standing Order. We should monitor how this measure works so as to ensure we do not fall into some of the traps Deputy O'Donnell forecasts.

The privilege we have in this House carries a responsibility. Deputies must not be allowed to come into this House, make outrageous statements, ruin reputations and get away scot free. However, at the moment they get away scot free having made such allegations, merely being reprimanded by this House. Unfortunately, the persons about whom allegations have been made have no right or opportunity to come into this House with their lawyers and make a statement that they were defamed.

I would not support any curtailment of Dáil privilege but we should act responsibly and some Deputies have not acted responsibly in the past. For the first time ever, this House is taking a lead in dealing with the minority of Deputies who make outrageous allegations. We are trying to put in place a procedure that will at least encourage Deputies to be more careful about how they level allegations in this House. It is important we do that now because, despite the fact that we had only three cases in the past number of years, careers could have been ruined as a result of the allegations made in those three cases. If such allegations were to continue or increase in the years ahead, a strong campaign would be mounted, both inside and outside this House, to remove privilege from Deputies, and that is a measure we should not entertain. Self-regulation in such a sensitive area is very important and that is why I support this sessional order.

The infamous allegations made by Deputy Rabbitte in this House to the effect that there was a document in the Attorney General's Office that would rock the foundations of the State was made in a politically charged atmosphere but it had to be investigated. Deputies may recall that people had to be asked to return from various parts of the world so that we might ascertain whether there was such a document.

I was instructed at that time by the then Taoiseach, Deputy Reynolds, to contact Deputy Rabbitte to ascertain what information he had and ask him to make it available to me, to some other member of the Government or to a civil servant so that we could find this document as quickly as possible. Deputy Rabbitte was asked to point us in some direction if he had information that others did not have. He told me his statement was based on a telephone call in which he was told there was a document which was so important that it would shake the foundations of the State and that was all the information he had. Based on information from a person — I do not know how responsible that person was but obviously he was not very responsible — Deputy Rabbitte came into this House and said, without a shred of evidence, there was a document of such importance that it would rock the foundation of the State. Is that a responsible way for a Member to act?

As Deputy Rabbitte had no further information, I asked him to ask the person from whom he got the information to contact me, or an intermediary and pass all the information he had on to that person who would then contact me. The Taoiseach and I felt it important that whatever information was available should be made known but at the same time allow the person to protect his name. I told Deputy Rabbitte that we would respect whatever arrangement his source wanted to protect his or her name. Deputy Rabbitte agreed to that and returned to his alleged source and, in fairness to him, phoned me a half an hour later and told me that his source was not willing to divulge any further information.

Where a Member makes very serious allegations they should be backed up by more than a telephone call from God knows where. I appreciate, as Deputy O'Donnell said, that one cannot and will not get documentary evidence and that people will not want to be named. However, there is a duty on every Member to try to verify the information they receive and failing that, as has been done by Deputies, to table questions. Having failed to get proper answers to questions and exhausted other means of checking information they should make the allegation in this House and I defend anyone's right to do that. Deputies should not be allowed to make allegations off the top of their heads that may do untold damage to people outside this House. I hope this order will cause Deputies to pause before making allegations. Members should be very careful not to abuse their privilege.

I am not a constitutional lawyer and have no legal training but I have a sense of fair play. Deputy O'Donnell outlined the constitutional privileges of Members but under our Constitution every person in the State is entitled to his or her good name. I understand — I am open to correction by the constitutional lawyer present——

Mr. M. McDowell

A constitutional lawyer without a primary certificate.

Mr. Dempsey

——that the Constitution should be read in whole and not in part as it is interwoven. The privileges we enjoy should be used very carefully and the Constitution did not intend that we should irresponsibly take away a person's good name.

I support this motion. Regrettably, I believe it is necessary because of past incidents but I hope it will never have to be used but that is a matter for Members.

Mr. M. McDowell

I have been elected to this House on two separate occasions and lost my seat in the interval. During those periods I have heard a number of allegations made here by Members which seemed to me to be without foundation. If one were to look to those allegations and ask whether they should be allowed to go unchecked and uncorrected one might be tempted to the view that there should be some system to allow an effective right of reply for persons who consider themselves injured by such allegations. It is an attractive proposition but it is fundamentally flawed.

When this order comes into effect it will not be the practice, in my view, that the ordinary Joe Soap will get justice. What will happen will be equivalent to what happened at the time of the Goodman inquiry when the newspapers and RTE went down on their knees to apologise to the Goodman organisation but we found out later, of course, that the bulk of the accusations made in respect of that organisation were substantially proven. The tax fraud uncovered by the Tribunal of Inquiry into the Beef Processing Industry, and not by the Revenue Commissioners, was massive. I have no doubt that if I had said a massive tax fraud was being perpetrated on the Irish people by top management in the Goodman group — as Mr. Justice Hamilton eventually found — there would have been a complaint to the Ceann Comhairle within minutes and I would have been brought before the committee and asked to substantiate my arguments about Goodman's tax evasion. How could I substantiate them? Would I be given access to that company's records and would I be able to prove that millions and millions of pounds had been handed out in cash to employees of that organisation?

I have no doubt that a bevy of highly paid lawyers would bring in witnesses who would categorically deny what I would say before the Committee on Procedure and Privileges. If I bothered to attend the meeting at which this was being discussed I would have said I had good information to suggest it was the case and then I would be asked to bring forward my witnesses and evidence to show that I had good information. In the last analysis the confidential tipster who told me what was going on would not dare put his or her head above the parapet and expose themselves to the immense strength of the Goodman organisation. This measure will not protect small people but will aid the big and powerful and those who abuse privacy and confidentiality and fear any legislative or other forum in which they can be brought to account.

I readily agree with Deputy Dempsey in that when Deputy Avril Doyle levelled her accusation against doctors in Beaumont Hospital I cringed because it is so easy to take one side of a story and make a meal of it in the House without regard to the interests of the other side. Nonetheless, I have pointed out inadequacies in the way in which one of my constituents was treated. She died in the National Maternity Hospital. I was careful about what I said as a matter of mental discipline but I do not want to be placed in a position in which I must go before a committee of the House to defend what I say. In the nature of things, the medical defence union would bring in lawyers and doctors and I would only have a layman's accusation made by the relatives of the girl to avail me, if they bothered to come before the committee.

There is a possibility that, on occasion, the privilege we enjoy as Members of the Oireachtas will be abused. In case Deputy Dempsey is carried away by notions of virtue, the source of Deputy Rabbitte's earth shattering document rumour was not to be found in Democratic Left but much closer to the Deputy. It was not at Cabinet level but at Minister of State level.

Mr. Dempsey

I heard that before.

Mr. M. McDowell

If the Deputy knew the source of that rumour——

Ms O'Donnell

It would indeed shake the nation.

Mr. M. McDowell

It was made by someone who ought to have known better.

Mr. Dempsey

Tell us.

Mr. M. McDowell

I know where the rumour started. It gathered wings and took flight in circumstances in which its origin led people to believe it must be true.

Mr. Dempsey

Deputy Rabbitte told me he got a telephone call about it.

Mr. M. McDowell

Yes, but I know where it started. I do not wish to rake over old coals but I got good information about the Masri affair. All I received was a statement by a credible person that it was true and I was asked to pursue the issue in the House. I tabled a question to the Taoiseach at the time asking whether any member of the Government received a substantial investment in the previous five years in return for a grant of citizenship to the investor. It was a simple, straightforward question. My experience at the time took the scales from my eyes. The Chair rejected the question on the grounds that to ask it was to make a personal imputation. I accept the rulings of the Chair, as I must. It was following precedent. I queried that and said if it were true it could not be an imputation and if it were false the answer would be "no".

I argued as strongly as I could that the question should be allowed to stand and the Taoiseach required to answer it. I came up against a stone wall. The Chair is always co-operative and I asked what I could do in the circumstances. I was told to make a substantive charge which means putting down a motion in Private Members' time to allege it is true. I was in the difficulty that all I had was a statement that it was true. My speech would have lasted for one minute if my party colleagues had allowed me to put down the motion. I would have had to say: "I am informed by a reliable source that a member of the Government received £1.1 million into their family firm and in exchange the investor was given citizenship". That would have been impractical as I did not have any records to prove it.

In the end, I went through the farce of bringing in a Private Members' Bill, arranging with the great allegator, Deputy Rabbitte, to oppose it and force a five minute debate the following Tuesday afternoon. Then it tumbled out that it was true. I was left in the position in which to ask the question would have amounted to personal imputation but the statement was correct. I was not supported by the rules of the House. If I had said it in a debate and was hauled before the Committee on Procedure and Privileges all I could have said was: "I am reliably informed it is true". I would have been asked: "What substance is there to back this up"? I would not have had anything to say except that I was reliably informed it is true. My rights to pursue matters of importance are not vindicated by existing rules and I will be more inhibited in making inquiries of this kind as a result of this procedure.

In the explanatory leaflet showing how the proposed mechanism will work it is stated that "motions of substance concerning the same allegations will not be allowed to be moved during any stages of the above". Someone who wants to pre-empt further discussion of a matter and hem me in, as the rules of the House did on that occasion, has only to make a complaint to the Ceann Comhairle and the matter cannot be raised in any shape or form when the star Chamber process begins. I would have had nothing to say as I sat before a significant number of Deputies, some of whom would have been most anxious to embarrass me and point out that I had no basis for making the allegations. The Ceann Comhairle would ask me to withdraw the imputation and I would either be forced to withdraw it in the House or be reprimanded. I would not withdraw it and would have been reprimanded under a procedure in the House which would have belittled me because I could not stand over something which I knew to be true.

Is it the case that motions of substance concerning the same allegations will not be allowed during any stages of this investigatory procedure? If that is so, it would inhibit Members from making points which they know and believe to be true and dealing with issues of public importance in good faith.

As Deputy O'Donnell said, the Progressive Democrat Party is opposed to this measure, it will not be bound by it and will wear any reprimand handed down to it by this process as a badge of honour. We were elected to carry out certain functions and it is not open to a majority of the Members of this House to effectively muzzle us in the way envisaged under this procedure. Our higher duty as found by the courts, is to respect the confidentiality of information given to Deputies in this House on matters of public importance. Our higher duty is to the voters who elected us to this House and the public at large. We do not have a duty to voluntarily engage in an act of self-mutilation, which is what this proposal is, to prevent ourselves from using our critical faculties.

This is a case of using a sledge hammer to crack a nut. If a huge number of people said day in and day out, this House allowed its Members to abuse their privilege than I would say we should consider some corrective action. In the vast majority of cases Members are careful, honest, and responsible in what they say and it is wrong for this House to put in place a system of discipline on them which in the last analysis will be used by the big, powerful wrongdoers to muzzle their individual critics. While the three quarters weighted majority requirement may suit the larger parties which can always have a blocking vote to stop a motion for reprimand going through, Independent Members such as Deputy Gregory and Members of smaller parties will never have enough votes at the Committee on Procedure and Privileges to stop a motion for reprimand. We will have to depend on the grace and fair attitude of our colleagues in this House. I know from experience that when push comes to shove Members vote along party lines in accordance with the party wishes.

Mr. E. Byrne

I wish to refer to some of the points raised by Members of the Progressive Democrats and to which I hope the Minister will respond in his reply. Deputies O'Donnell and McDowell have argued against this motion on the basis that Deputies who issue statements which are deemed to be defamatory will be hauled before the Committee on Procedure and Privileges and will have with them solicitors who will tear us to shreds, thus turning it into a courtroom. I wish to correct that wrong picture painted by them. Deputy O'Donnell was a member of the sub-committee and she will have received the documentation which states that it was clarified that a Member could claim privilege before the committee and refuse to disclose information. That is a straightforward statement. Even more importantly, it also addressed the issue of a possible input by a third person involved in an alleged breach of privilege in a subsequent investigation. It was agreed that any such input should be in the form of a submission in writing.

This is a very difficult issue to address. It is similar to the narrow tightrope the Taoiseach had to walk in another matter in balancing the rights of the House and its Members with the rights of the citizen. In that context, I am glad we are dealing with a sessional order. This issue should be dealt with on the basis of the facts presented to us. The Progressive Democrats Party is wrong in suggesting that we will be torn to shreds by the barristers, solicitors or the legal teams representing the Goodman group or the Medical Defence Union. That is not my interpretation of what is proposed. I understand people who claim they have been defamed will be allowed to submit a succinct and limited statement.

As a member of a party with six Deputies I am conscious of the rights of minority Members of the House and argued in favour of the three quarters weighted majority concept. One could argue that the majority should be greater but that was the figure agreed. I hope the Minister will respond to the scenarios referred to by Deputies O'Donnell and McDowell.

I wish to refer to the outrage expressed about the penalty. While I have some reservations about whether Members should be brought before the Committee on Procedure and Privilages we want to be fair to everyone. The documentation states that the draft order will maintain the status quo by treating a defamatory remark in certain circumstances as a matter of disorder. Under the procedures of the House a Deputy who is named can be suspended from the House for thee days by the Ceann Comhairle. The documentation states: “Obviously this could lead to the suspension of a Member from the services of the Dáil and creates an anomaly in respect of how a Member should be sanctioned by recommendation of the committee”. The committee cannot suspend a Deputy from the House. If it finds a Deputy guilty, so to speak it can make a recommendation to the Ceann Comhairle who can dismiss it and merely reprimand the Deputy in the House. The proposed penalty is not as severe as a three day suspension from the services of the Dáil. Obviously there is a concern that Deputies who have to make a statement will be forced by peer groups to divulge information, which is not obligatory. Under the Constitution no one can be forced to divulge information. Will the Minister address those issues when replying?

Mr. Callely

My clear understanding is that privilege of Members of the Oireachtas remains intact as provided under paragraphs 12 and 13 of Article 15 of the Constitution which has been upheld by the Supreme Court judgment of August 1992. Given that those privileges remain, like my colleague, Deputy Byrne, I sat in on one or two of the sub-committee meetings and was somewhat sympathetic to Deputy O'Donnell's arguments. My clear understanding is that privilege remains absolute, in accordance with the Constitution and the Standing Orders of the House, but that a mechanism will be put in place which will give a right of reply to outsiders against whom an allegation is made. That will be a simple mechanism and the person will have the right, if they so desire, to respond to such an allegation.

I welcome the sessional order because for far too long some Members have abused this privilege. Most of the speakers have indicated examples of abuse: Deputies making reference to professional medical personnel and allegations and innuendoes regarding the beef industry. We all know the cost arising out of investigations into the latter.

It has been said here on many occasions that if there was a proper committee system operating here, there would have been no need for the beef tribunal. In his contribution Deputy McDowell indicated that Members could be severely curtailed and, for want of a better description, "put on ice" for a number of days while the Committee on Procedure and Privileges carried out an investigation. There was a need for a right of reply. Where an allegation is made against a person or an industry those involved should have the right to use the mechanism if they so desire. In putting that mechanism in place we should look at other issues about which Members have a genuine concern.

An issue touched on today was the allegation that would rock the State to its foundations made in November 1994. I posed the following question to the Taoiseach recently: "To ask the Taoiseach the inquiries, if any, that have been carried out by him into uncovering the letter that allegedly exists in the Office of the Attorney General or elsewhere, that this letter would rock the very foundations of the State, the extent and the result of the inquiry and if he will make a statement on the matter". I received the following reply from the Ceann Comhairle's office: "I regret I have disallowed the following question tabled by you. The question contains argument". That was not a satisfactory response. The House will recall that when that allegation was made in November 1994 it was shattering and warranted an investigation.

It is important to record the name of the person who made that allegation and the importance attached to it. When Deputy Rabbitte was asked to appear before the sub-committee of inquiry he was then a Minister of State. The original request to attend the meeting was cancelled because it clashed with the appearance of other witnesses before the sub-committee. It is important to quote the conclusion of his letter for the record. He said he would attend the committee but would prefer, rather than receive a phone call at 10.30 p.m., if he could be given a little more notice than he received of the cancellation and "in any event not later than 10.40 p.m. if I am being contacted at home since the baby takes her last bottle around that time". That was farcical. This was a highly sensitive political issue and Deputy Rabbitte had alleged that he had evidence that would rock the State to its foundations but when he became a Minister of State with responsibility for commerce and technology he was more interested in giving the baby her last bottle at home.

I also tabled the following question to the Taoiseach: "To ask the Taoiseach the Members of Dáil Éireann who were aware of the information and other relevant facts regarding the Fr. Brendan Smyth affair and official A that had been concealed from the Dáil Committee on Legislation and Security". I wanted to know the Members who were aware that this charade was being played out in the months of December, January and February. In reply the Ceann Comhairle said: "I regret to disallow the following question tabled by you. The Taoiseach has no official responsibility to the Dáil in relation to this matter". That was most unsatisfactory.

I have tabled a number of other questions on Government policy of accountability, openness and transparency. This morning I asked the Tánaiste a question about accountability. The health boards were given £100 million last year on the understanding that a Bill would be introduced. That has not happened and the response of the Tánaiste this morning was that the heads of the Bill had not been prepared. We will not see the Bill this session and probably will not see it until late next session, if at all.

I asked a relevant question on openness and transparency and the reply from the Ceann Comhairle's office indicated that the question either contained argument or impinged on the collective responsibility of the Government. That is the nub of the problem. If a Member comes into this House and tables a relevant question it should be answered and not transferred or stonewalled. In the recent past certain allegations made in the House were stonewalled by the then Government. This led to the agreement of this House to set up a tribunal which may have contributed to the formation of a Government but at the end of the day the taxpayer had to bear the cost. Here we are holding privilege while the Government and successive Governments have stonewalled questions that could have been simply answered and we could have avoided the expenditure of large amounts of taxpayers' money.

In relation to Father Smyth and official A, I asked a question recently as to why the general public were left in the dark regarding the compromised position of the Attorney General and why the order was only made following a telephone call to the Taoiseach's office by a leading national newspaper. I asked a question regarding official A and collective responsibility within the Attorney General's office and within the Taoiseach's office.

Yesterday a great rent-a-crowd was brought into the House and there was great applause for the Taoiseach when he told the House that official A had indicated he had done wrong and was now to take early retirement as and from this Thursday. The Taoiseach was happy to announce that he had given to Official A taxpayers' funds to the value of in or around £1 million. Here we have a man who recognises that he was irresponsible, that he made errors of judgment regarding a very sensitive, highly political case and the Taoiseach comes into the House to indicate that he will give the man £140,000 to leave office immediately, that he is giving him £33,000, which I presume is indexlinked, as a pension and which could accumulate to the value of £1 million. If you, I or any ordinary individual were guilty of such a wrong-doing, it would mean resigning or being dismissed and getting the matter properly addressed. We have yet to see the public reaction to this.

Mr. E. Byrne

What would the Deputy's sanction have been?

Mr. Callely

There will be a debate in the House later today on this subject.

Mr. E. Byrne

What would the Deputy's sanction have been?

Acting Chairman

Deputy Byrne, you got your chance.

Mr. M. McDowell

A £250,000 golden handshake.

Mr. Deasy

Almost as good as being a legal eagle on the beef tribunal.

Mr. Callely

It was nothing for the rent-a-crowd of the Coalition Parties to applaud yesterday. It was a scandalous disregard for taxpayers' funds.

Mr. E. Byrne

Tell us what sanction you would have invoked?

Mr. Callely

The general public will tell Democratic Left and the other Government parties what they think of giving so much taxpayers' money to a person who has clearly indicated there has been a certain amount of wrong-doing and that he should no longer remain in such a responsible office. The Taoiseach comes in here and gets wide applause from the Coalition parties for that.

Mr. E. Byrne

What would the Deputy have done?

Mr. O'Malley

I have just recently arrived from five time zones to the West and, accordingly, do not feel fully fit to make a speech in the House today but the nature of what is proposed in this motion propels me to do so.

I listened to Deputy O'Donnell's speech and the reasons she gave that this motion should not be adopted and I listened to Deputy McDowell. I agree with them. I have not heard Deputy O'Donnell's arguments against this refuted by anybody. The speeches being made in support of this motion are almost anecdotal and do not face up to the very serious difficulty we have in the motion before us. Deputy O'Donnell said this morning that Parliament is on trial. It is and who is putting it on trial? Itself. Does it deserve any respect if it allows itself to be neutered? Will a motion like this, with all its implications, have any effect as against Article 15 of the Constitution? Has that been thought through? What is the point of Deputies saying we cannot have people coming into this House and saying things they are not prepared to back up and for which they are not prepared to divulge their source? What is the point of saying that when the Supreme Court in a case, brought originally by a number of Members of this House and now called The Attorney General v. Hamilton No. 2, 1992 Irish Reports, specifically held, as a matter of constitutional law in interpreting the Constitution, that a Deputy is not required to substantiate his allegations. So the Constitution says and this House cannot say otherwise. We had better think about this now before we commit ourselves to it. Article 15, paragraph 10, has been interpreted in this case in 1992 and the Supreme Court has held that it is not necessary for a Deputy to substantiate his allegations. So what is the point of this motion and what effect will it have? I heard people criticise Deputy O'Donnell because she said at the end of her speech that we would not observe this motion if it were passed today. One cannot observe something that it not valid in terms of the Constitution because it does not exist. This House cannot pass a law that contravenes the Constitution. Likewise, it cannot pass a motion that contravenes the Constitution and cannot take away the rights which a Deputy is given by the Constitution. This House cannot divest itself of the powers bestowed on it by the Constitution. We should pause and think as this is a serious matter.

The practice has grown up, particularly during the past ten to 15 years, of the Government being the dominant force in political matters. This House is rapidly becoming an instrument of the Government of the day and this is further proof of that thesis, if one requires it. Under the Standing Order as proposed, decisions will be made for the time being by the Ceann Comhairle. Nowadays the office of Ceann Comhairle is not seen as being in the gift of the House but in the gift of the Government. If a matter is referred by him the decision will be made by the Committee on Procedure and Privileges on which the Government always has a majority. Our experience in committees is that the majority tends to support the Government, irrespective of the merits of the case. This is not good enough.

No member of the Government has come into the House to defend or advocate the motion. In addition, Fianna Fáil has taken a view which is extraordinary for the main Opposition party. I wonder why; I have my suspicions but even if they are correct it does not matter. It should not be encouraging us to let something like this go through as this is a serious matter. I urge Members to consider carefully the points made by Deputies O'Donnell and McDowell before the Standing Order is adopted.

Let me try to give Members some idea of the difficulties which will arise. The proposed Standing Order 53A (1) states that a Member shall not make an utterance in the nature of being defamatory. What this will mean in practice is that almost anything controversial which somebody either inside or outside the House does not like and regards as a slight will be "in the nature of being defamatory". In other words, one will not be able to make a seriously critical remark. Subsection (1) goes on to state that where a Member makes such an utterance it may be prima facie an abuse of privilege. In other words, if something which reflects seriously on somebody else either inside or outside the House is uttered then, prima facie, it will be a breach of privilege and the onus will be on the Member concerned to prove that it is not, although the Supreme Court in The Attorney General v. Hamilton (No. 2) stated that it is not. There is a conflict, the House should resolve it before it adopts the Standing Order but has not done so.

Subsection 2 (a) states that if the defamatory nature of the utterance is apparent at the time it was made during proceedings, the Ceann Comhairle shall direct that the utterance be withdrawn without qualification.

Mr. M. McDowell

That is scandalous.

Mr. O'Malley

The fact that it is true and not defamatory is irrelevant, if it is in the nature of being defamatory the Ceann Comhairle may order its withdrawal. If a Member refuses to withdraw it various sanctions can be imposed. This is not right and conflicts totally with the interpretation by the Supreme Court of Article 15.10. The two cannot stand together. At the moment the Supreme Court's interpretation is the one that will prevail and Members can resort to it, if an attempt is made to sanction them. It is a mark of weakness on the part of this House that some of its Members will have to flee to the courts to try to protect themselves. It is a parliamentary and political function of Members elected to this House to speak as they see fit within the rules of order and decency. One should not have to go to the courts to seek protection.

Many examples of alleged abuses of privilege are given. Let me give one further example. I urge the Tánaiste, Deputy Spring, and the Minister of State, Deputy Rabbitte — the original plaintiffs in the case to which I referred with former Deputies Mac Giolla and Desmond — to contemplate that in voting for the proposed Standing Order, they are voting against the principle which they had upheld with some difficulty. I wonder where they are. Is the Minister of State, Deputy Rabbitte, so deep in his burrow this morning that he cannot hear us and will not come in? I would like to hear what he and the Tánaiste have to say about this Standing Order. These matters cannot be judged on the basis of which side of the House one is sitting on at a particular time; one has to be more discerning than that.

On 10 May 1989 I made a highly controversial speech during the Adjournment debate, it was in the nature of being defamatory within the meaning of the proposed Standing Order 53A (1) because I was highly critical of certain people. The reaction of Ministers was extraordinarily heated. As Deputy O'Donnell said, they became apoplectic about it and stated I was totally unjustified but if one was to read it again now it is clear that every word was true. However, within the meaning of the proposed Standing Order it was in the nature or being defamatory. Did I not have the right to say what I said? There was no abuse of privilege. It stopped certain things happening and called a halt, at least for a while, to the gallop of certain people which was to the benefit of the country. Will Deputies be prevented from doing so again if the need arises?

Nine months ago I was told by the Chair that one could not criticise the Attorney General when I repeatedly criticised Mr. Harry Whelehan and said that he was not fit to be Attorney General, let alone anything higher. The quote used was that he was a great constitutional officer. I was told that one could not criticise him or his senior legal assistant. Is this not meaningless and silly? We should call a halt to this. Deputy Byrne said that if the Committee on Procedure and Privileges heard a case under this proposed order, those who attended the committee to complain could not bring lawyers with them.

Mr. E. Byrne

They could not even attend; they would have to make a written submission.

Mr. O'Malley

I invite Deputy Byrne to go to the Library and read in the 1971 Irish reports the case In Re Haughey which refers to an individual against whom allegations of a serious nature were made, who was brought before a committee of this House but declined to answer questions on the grounds that his rights were being interfered with. He then received from the court an extensive declaration to that effect. The court decided that one of the rights a person cannot be deprived of in appearing before a committee of this House is the right to legal representation. That is a Godsend to those who can afford expensive lawyers. The only people it will put down are Members of this House who try to do their duty.

I have been a Member of this House for 27 years and I have often had to say rough things but I can go before my God and say that I never abused the privilege of the House. The same applies to the vast majority of Members. If that privilege is taken away from us we might as well pull down the blinds.

Mr. Deasy

I congratulate the Minister of State on his appointment. While not wishing to be absolutely unkind, this measure is the most ridiculous attempt at legislation I have seen in a long time.

Ms O'Donnell

Well done, Deputy.

Mr. Deasy

Members of this House need more powers, not fewer. This House has become increasingly irrelevant and I, as an elected representative, resent that. Any curtailment of Members' rights should be strenuously resisted by all Members of the House. There is no need for this measure because Members generally do not abuse privilege. There was abuse of privilege during the beef tribunal debate and some of the principals have been referred to here, but a number of subsidiary contributors who named specific individuals were never taken to task. They were given a mild rap on the knuckles by the President of the beef tribunal inquiry who said that their statements were unfounded and untrue. Those people should have been taken to task and admonished much more severely in public. For the vast majority of Dáil Deputies, a diminution of their powers is unacceptable.

If a person comes in here, acts in an irresponsible way and mentions people's names in a derogatory manner, he or she will feel the backlash so severely from the media and the public, particularly their electorate, that their life will be a misery, and that is as it should be. They will suffer their own sanctions without the need to instigate a reduction in the rights of Members of the House. That is the way this matter should be dealt with.

We are supposed to be the people with power — I made this type of speech here before and one always feels on these occasions as if one is a leper — but as the Chairman will know we do not have power. Having served as a backbencher for a number of years, I can say that a traffic warden has more power in many instances than has a backbench TD. A garda certainly, and sometimes even a dog catcher, has more power. There is a cliché that we are voting fodder, that is true in many instances. On issues such as this we are compelled to vote for measures with which we do not agree, which makes us hypocrites, and people such as myself go along with that at times. However, you must face your constituents at election time and unfortunately if you are not loyal to your party, if you attempt to be objective, you are dead politically. I have seen that happen to some very fine people in this House. Let us give credit and support to people with backbone. This type of measure gives no such support.

The people who have real power are in State and semi-State bodies, local authorities and health boards. They can decide whether a person will receive a grant, a medical card or whatever. They have the power to dish out privilege while we do not have such power. What we are attempting to do here is take away privilege. The people in the Press Gallery have real power. There might not be one word about today's Dáil report in a number of national papers but the Press Gallery can still write about events in the Dáil in an objective way without alluding to the factual content of what was said. That is real power.

If we were consistent about having a watchdog in this House and if the ultimate sanction of the constitutional reform mentioned in the Minister's speech is implemented whereby a Member of this House could be brought before the courts if he or she utters something that is considered to be defamatory, the corollary of that is that there should be a press council. Everybody should be subject to the same sanction. We are elected whereas members of the Press Gallery are not, but the power lies there rather than here. That is unfortunate and is dangerous in a democracy because in those circumstances we can very easily go off the rails.

Who is running the country? The vast majority of Dáil Deputies play a very minor role and some Ministers play a negligible part in that process. We should get our priorities right. We should give Members more power and let them say what they think. Like Deputy O'Malley, I have been a Member of this House for a number of years and have never abused privilege or been pulled up on it. I was greatly tempted at times to mention officials in certain State boards and local authorities whom I suspected of being corrupt, and health board officials whom I considered in some cases to be totally inept and bordering on corrupt but I did not do so although maybe it would have been good to do so.

There has been talk about using the Australian Senate as a model, that we should all be as good as them, but we would probably be better off if we used as a model the Japanese or Italian parliaments where we regularly see punchups in their parliamentary chambers. Probably their members fare much better. It would be a big help to the Irish rugby team to see that at first hand.

Mr. Cullen

The Deputy's timing is apt.

Mr. Deasy

It would give them some practice. Those fellows we send to South Africa would know what it is all about. I notice the Deputy in the Chair stayed at home. I believe he was a very fine County Louth footballer——

Acting Chairman (Mr. Kirk)

I take that as a compliment.

Mr. Deasy

——and did not resort to underhand tactics. I do not resort to them either as I will not mention names that deserve to be named in this House. We should be more authoritative regarding the State, the semi-State sector, the local authorities and health boards.

Parliamentary democracy is defeated by our inability to get questions answered in this House. Other Deputies have complained about this, but I have encountered this problem for many years. Questions are disallowed, transferred not only from one Minister to another, but from a second to a third Minister. Having been transferred once or twice they are eventually disallowed. I tabled a recent simple statistical question requesting information on the number of people employed in Leinster House on sitting and non-sitting days. I tabled that question to the Taoiseach, it was transferred to the Minister for Finance and last week it was disallowed.

Ms O'Donnell

Finally killed.

Mr. Cullen

Join the club.

Ms. O'Donnell

I have a file of them.

Mr. Deasy

I was told it was not the responsibility of the Minister, but a matter for the Houses of the Oireachtas. What does that mean? Is a brick or fixture to blame? It appears no human being is to blame as it is a matter for the Houses of the Oireachtas? Have Members ever heard of anything so ridiculous? Members cannot ascertain how many people are employed on sitting and non-sitting days. I included Kildare House and Government Buildings in that question. It was not difficult to get that information because the Superintendent of the House — I mentioned a name and I am not supposed to — had assimilated the numbers working in the various buildings and figures had been provided. I suppose it would have been an embarrassment for people to realise that there are probably 1,000 people employed in those buildings in which there are very few facilities. That was the point I wished to make, but I did not get a chance to make it in my Machiavellian way. That is one illustration of a lack of power in this House.

I had another sobering experience during the past two to three years prior to this Government coming into power and which ceased on the formation of the Government. Before a parliamentary question I tabled to a Minister in a previous Government about matters in my constituency was answered, a member that Minister's party who is a Member of the House got the information a week previously and had it publicised so that the purpose of my question was totally defeated.

Ms O'Donnell

And robbed.

Mr. Deasy

I appealed and objected to the Ceann Comhairle who said the matter was not his business. Who is responsible for leaking information, undermining matters and irregular activity or conduct? There is no control. I wrote to the Committee on Procedure and Privileges, but got no satisfaction. I was told that the Minister was entitled to do that. I pointed out that when I was appointed Cabinet Minister one of the first things the Secretary of the Department concerned told me was that when a question is tabled by a Member a Minister is not allowed to divulge anything relating to the subject matter of that question to any other individual, particularly to another Deputy. All that has gone out the window. We do not need further restrictions, Members should have more rights.

The proposal is designed to make this House less relevant. It is superfluous and anaemic. The most relevant point is that if you set yourself up on the high moral ground there is only one way to go, back down at the rate of knots. The Minister referred to the Golfing Union of Ireland. I wonder why he referred to that body and the Law Society. He did not refer to the trade unions, teacher organisations or the IFA. Perhaps he is concerned about the handicaps of certain Members, past and present, in this House——

Mr. Cullen

That may give rise to questions.

Mr. Deasy

——and the upper House which need to be seriously reviewed or examined by the Golfing Union of Ireland. Members of that House are in the clouds, like the Deputy in the Chair used to be when he fielded the ball for County Louth many years ago. We are becoming, if we are not already, as irrelevant as town commissioners, a county council or urban council. This type of proposal should not be accepted or entertained. Common sense should prevail and many more people should be present today speaking their minds.

Ms O'Donnell

The Deputy is one of the few.

Mr. Deasy

It is unbelievable that Members will not come in and tell the truth. It is a subject that should not be shied away from.

Mr. Cullen

I am glad I sought an opportunity to participate in this debate and that I listened to it because I have learned a good deal more about the impact of the proposed new regulations. I have deep concerns about their intent or whether they will be effective.

Mr. M. McDowell

They will not be effective because we will not obey them.

Mr. Cullen

This motion has come from the engine of political correctness. I am sick and tired of having political correctness rammed down my throat at national and local level and through the media. It is as if to say that people who enter or participate in public life automatically have a question mark hanging over their integrity, credibility or there is a suspicion as to why they are in public life, leading to claims that they are making money out of it, are open to corruption, bribery, all sorts of suggestions and innuendo that is their raison d'être for being in public life. I reject that vehemently because it is totally and utterly untrue and without foundation. I have not been in public life as long as some of the previous speakers, but I have been used to it since I was a child and directly involved in it for almost ten years. From my experience in this House the vast majority of Members have not abused their Dáil privilege. Responsibility comes with that privilege. The previous speaker, my good friend and colleague from my constituency, elucidated on areas where privilege has not been abused and Members have been constrained in ensuring that they were not defamatory towards other individuals inside or outside this House.

Regarding the new regulations, I am mindful of the behaviour of one or two Members of the House in the distant and recent past. At least Deputy Eric Byrne is in the House for the debate. The statement by the Minister of State, Deputy Rabbitte, when in Opposition, about the existence of a letter which would rock the State to its foundations had a major impact on circumstances at that time. We now know his allegation had no foundation but, because it was made, it is still believed in some circles that it had a basis. That type of behaviour led to the introduction of the order before us today, but Deputy Rabbitte is conspicuous by his absence. It is extraordinary that he has not come into the House to say why he supports this proposal.

Having listened to the contributions of previous speakers and noted paragraphs 12 and 13 of Article 15 of the Constitution and the findings of the Supreme Court, I question the effectiveness of this order. What is the Ceann Comhairle's view on the matter? I accept he cannot give his view in the House, but the Minister should indicate how the Ceann Comhairle's office interprets the conflict between the Supreme Court judgment and the issue we are debating today. How will defamatory statements be defined? It will be up to the Ceann Comhairle to make a subjective judgment in that regard and that will be based on whether the statement is made by a Government or Opposition Member, its content and whether it impacts on matters raging outside the House at the time.

Like Deputy Deasy, I am also concerned at the way in which the powers of those in public life are being eroded. During the past decade the powers of members of local government have been greatly diminished. Many quangos and quasi-committees have been established, creating a soap box effect of great importance for their positions, but the powers of those of us who must go before the people in a democratic process and seek a mandate are being diminished. Is this the thin end of the wedge? Is it a first step in diminishing our powers? What market are we trying to please by introducing such measures? Are we trying to satisfy people in the media who, instead of carrying out research, use politicians as a hobby-horse or a soft target to get a good headline? By diminishing its powers, is the Government trying to convince the public of how great it is? It is a shame this is happening, mainly unnoticed by Members.

There is some merit in an order such as this. If people believe they have been defamed they can complain to the Committee on Procedures and Privileges, but does that mean the Supreme Court judgment is not accurate in suggesting that the absolute privilege of Members of the Oireachtas is copperfastened? The Supreme Court is the final arbiter and defining body in all matters affecting the Constitution. In passing motions or introducing laws this House is at all times subject to the Constitution and cannot pass laws or motions that would contravene any article of the Constitution.

The Minister emphasised that this is a sessional order which I presume means there is a "get out" clause. If this order amounts to a hill of beans and must be rescinded in six months, Members will be again open to attack from the public. We are trying to put a politically correct face on an issue — about which there are grave doubts — and in six months time the order may have to be rescinded because it contravenes the Constitution.

Democracy is a potent weapon. While there have been many great people in history, none of them has managed to control the democratic forum to their own ends. They may succeed in the short term and win the odd battle, but a parliamentary forum and democracy will always win out against abuses. The most sacred protection for our people is that we live in a democracy and that if Members of this House try to abuse the privilege granted to them on the day they are elected they will not succeed in the long term. From my experience no Member of this House has ever deliberately set out to defame another person if the matter in question was not in the public interest. Many difficult issues have been raised in the House and were brought to light only because Members used their privilege. That privilege should not be diminished. If this measure diminishes the proper ordering of parliamentary democracy, that will be regrettable.

I am not a legal person but I have not even seen a measure introduced here that so contravenes a Supreme Court judgment which laid down in clearcut terms the rights and privileges of Members of this House. It is regrettable that we in this House, on the altar to the God of political correctness, are bringing in an order such as this. It will not enhance our standing and, in time, the Minister will have to rescind the order because if somebody attempts to use the various subsections in it, for whatever reason, they may find they are contravening the Supreme Court judgment. That is the defining issue in this debate.

Mr. Ring

I was elected to this House almost one year ago and the frustration I have felt in the past 12 months is unbelievable. I thought I could express the views of the people I represent but I have met many obstacles. I have learned one lesson in my short time in this House; backbenchers do not have any power. The real power lies with officials be it at county council, health board or other level.

If I had an opportunity I would vote against this measure. I am a Fine Gael Member of this House and I signed the party pledge——

Mr. E. Byrne

The Deputy has to vote for it.

Mr. Ring

I have to vote for it but that is sad. I would like a free vote on issues such as this about which Members feel strongly. We should not be pushed up to the lobbies to vote for something in which we do not believe. The power should be left with the Members who are answerable to the people they represent. The county managers or the State executives are not answerable to anybody. They are appointed by the Minister of the day.

I have found this a difficult year. I congratulate the Minister of State, Deputy Higgins, on his appointment. I realise this is not the Minister's measure but one which has been decided by the House which he must introduce. This order is anti-Member and should be withdrawn. I realise it will not be withdrawn at this late stage and I will be required to vote shortly for something in which I do not believe.

Mr. O'Malley

The Deputy does not have to vote for it.

Mr. Ring

I do, and Deputy O'Malley knows that because he had to vote for measures in the past in which he did not believe, and he should remember that.

Mr. O'Malley

On the ones that counted, I did not.

Mr. Ring

Deputy O'Malley went even further than that but I will not go into that now.

I would like to have more time to talk about the members of the press because they are the people with real influence. They can put a slant on any issue that arises. A press council should be established because when members of the press make observations about Members of this House, we should have an opportunity to correct them. Sometimes they will not even pick up a telephone to ask Deputies why they have tabled numerous questions in the House. If they did that we would explain that we cannot get answers from Ministers and many questions in the House are ruled out of order. For which I believed were reasonable and which were in the interests of my constituents were ruled out of order. For whatever reason, these questions are not answered and this is very frustrating.

I hope the Government will consider giving back some power to the ordinary Members of this House. When my party was in Opposition it constantly told the Government of the day how things should be done, but when it came to power, it did not do anything about these matters either.

Mr. Deasy

We know exactly what the Deputy means.

Mr. Ring

I wish I had more time available to me because this is an issue about which I feel strongly. We are lobby fodder for Ministers and their officials; we have no real power and that should be changed.

Mr. J. Higgins

I thank all the Members who participated in what one thought might be a bland debate but which turned out to be quite lively. I want to briefly address the points made by all Members. This is not a Fine Gael, Labour, Democratic Left or Fianna Fáil motion. It is a motion that was deliberated upon at great length by a sub-committee of the Committee on Procedure and Privileges, on which all parties were represented. Dialogue should have taken place between the various members of the parties and if that was not the case, no blame can be devolved to me or the previous Minister of State, Deputy Seán Barrett. There was a general recognition of what was intended.

I thank Deputy Dermot Ahern for his generous comments on my appointment and for his constructive contributions not just here today but also as a member of the committee. His expertise as a former Chief Whip, both in Government and in Opposition, was most welcome. Deputy Ahern hit the nail on the head when he said it was a privilege to be a Member of this House. However, it is an abuse of privilege to go beyond the powers and scope of the absolute privilege of immunity from the legal recourse which the Constitution, and the rules of the House, give us. The vast majority of Members do not abuse the privilege of the House but we must always be cognisant of the irreparable damage that can be done, and which has been done in the past, by the abuse of this privilege.

The fundamental point at issue here is that if the truth is being told in the House, Members have nothing to fear. This measure simply puts Members on notice that they must be vigilant in relation to the veracity of their contributions. It will not impose undue restraint on them and certainly will not take away the privilege of Members.

On the point made by Deputy O'Donnell, that it was intended that this measure be passed without debate, that is not correct. When the request was made for a debate on this measure, it was acceded to. The only question that arose was in regard to the length of the debate and it was generally agreed that ending it at 1.30 p.m. would allow Members sufficient time to debate this issue.

Deputy O'Donnell also stated that this was a weak-minded excuse for Dáil reform. Nobody is trying to pretend that this is the absolute in terms of Dáil reform. It is but one element of it——

Ms O'Donnell

Why is it coming first?

Mr. J. Higgins

—— which has been much debated but it does not purport to be the entire package of Dáil reform. Other issues will come on stream in due course. Under this measure, the Committee on Procedure and Privileges will not become a star chamber or a type of circuit court into which people will bring a plethora of legal advisers. That is not provided for in that order.

In regard to infringement of Members' rights, section 7 (a) states: "In considering a matter under this Order the Cheann 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 practicable, that the utterance reflecting adversely on a person was soundly based". If a Member was excessive in his or her comments but made those comments in good faith, that will be taken into account. That, in its own way, should answer the allegation on the prima facie requirement in this motion.

The Progressive Democrats Party makes the point that Dáil privilege is a vital tool of democracy. I accept that. All this motion is doing is making sure that Dáil privilege is not abused and that Deputies in pursuit of their agenda do not go over the top. In addition, if a matter is brought before the Committee on Procedure and Privileges, it will require a 75 per cent majority, which is a built-in safeguard. The bottom line is that it must be possible to substantiate allegations made in the House. That is an understandable requirement.

Deputy O'Donnell made the point that we will not honour the terms of the motion. It is very serious to say that we will not obey the rules of the House and the majority decision of the Committee on Procedure and Privileges. Deputy O'Donnell was selective in her comments on Standing Orders and the Constitution. There is no constitutional infringement. In view of the fact that this is a sessional order we hope it will stand the test of time and I do not doubt that it will. Deputy Dempsey made the point that no Member would willingly and knowingly come before the House and set out to diminish our rights and put in place a system of self-destruction that would amputate one of the fundamental instruments that we cherish——

Mr. O'Malley

That is what the Minister of State is doing. .

Mr. J. Higgins

Nobody would dismantle a fundamental instrument which is protected and preserved and will continue to be enshrined in the Constitution. We are asking Members to be responsible and check out the veracity of what they are saying. I thought, in fact, that Deputy Michael McDowell would dissociate himself from Deputy O'Donnell's comments, but he reaffirmed that as far as the Progressive Democrats Party is concerned it simply will not accept what will be democratically decided by the House. His point is that the effect of this motion is attractive but fundamentally flawed. He went on to talk about the ordinary Joe Soap who will not have the same access to the committee as the elite, such as Larry Goodman or those who can afford to hire the best and the brightest. It would seem that some Members did not read the motion because clearly, in relation to providing access for redress for people outside the House whose rights have been infringed or whose integrity has been impugned paragraph (3) (b) applies. It states:

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——

Mr. M. McDowell

In Re Haughey.

Ms O'Donnell

What happens after the letter?

Mr. J. Higgins

That is the clarification sought by Deputy Eric Byrne also. The letter is placed before the committee and considered in due course by an all-party committee that will deliberate and adjudicate on it——

Mr. M. McDowell

Without hearing the person?

Mr. J. Higgins

——and if there has been a infringement, a report will then come before the House and go on record. Any impugning of the integrity of a person is corrected in the House.

Mr. McMcDowell

Rubbish.

Mr. J. Higgins

That is a considerable improvement on the situation heretofore.

Ms O'Donnell

On the basis of what finding?

Mr. J. Higgins

That is the kind of overkill, the hype——

Mr. McMcDowell

How can anyone decide the rights and wrongs of two conflicting letters?

Mr. J. Higgins

On the point made by Deputy Callely — all Members may have fallen victim to the provision that a question cannot provoke argument but in most cases it is possible to use one's imagination to devise questions and redraft them in order to build in the content one is trying to get across while at the same time not falling foul of Standing Orders.

Deputy O'Malley made the point that Members' powers will have been seriously eroded by this motion. He went on to discuss the instance where on the one hand he was ruled out recently because he questioned the Attorney General but then went on to stand his argument on its head by saying that a number of years ago he made what he called an "earth shattering" speech which was defamatory almost line by line and those were the same procedures, rules and regulations as we have——

Mr. O'Malley

The Ceann Comhairle made every effort at that time to stop me speaking.

Mr. J. Higgins

——and they will only be changed today. Under existing regulations the Deputy was ruled out of order in one instance and in another was permitted to make what he regarded as an "earth shattering" speech.

Mr. O'Malley

Read the debate; the Ceann Comhairle made every effort to stop me.

Mr. J. Higgins

On the points made by Deputy Deasy, the powers, rights and facilities are there and it is a question of exploiting the rules and regulations. As far as I am concerned — and I was on the back benches until a short time ago — there is no curtailment. In response to Deputy Cullen, this is not coming from the school of political correctness but from an all-party committee who spent considerable time deliberating what was being brought in and at the same time came to the conclusion that what we are talking about is the responsible use of a valuable instrument——

Mr. O'Malley

Does Deputy Rabbitte agree with this?

Mr. J. Higgins

——and that is not being infringed upon.

The point made by Deputy O'Malley on the Supreme Court judgment is contained precisely in Article 15.13 of the Constitution which states:

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 authorty other than the House itself.

It is the House that shall decide on its own protocols, procedures, rules, regulations and behaviour.

Mr. McMcDowell

The Constitution transcends any right of the House.

Mr. J. Higgins

It is in everybody's interest, it is in the Members' interests which is of paramount importance, it is in the Chair's interest and the interest of the reputation of the House.

Mr. M. McDowell

It is in the interest of the Government.

Mr. J. Higgins

It is a sessional order, we will monitor its progress and in due course deliberate on it.

Mr. O'Malley

Members of the Deputy's party do not agree with it. Will the Minister postpone it?

An Leas-Cheann Comhairle

As the debate is now concluded I am required to put the following question in accordance with an order of the Dáil of this day: "That the motion is hereby agreed to." I think the question in carried.

Mr. O'Malley

Vótáil.

An Ceann Comhairle

The question is, "That the motion is hereby agreed to." On that question a Division has been challenged. Will the Members who are claiming a division please rise?

Deputies Harney, O'Donnell, Keogh, Quill, Michael McDowell, O'Malley, Clohessy and Foxe rose.

An Ceann Comhairle

As fewer than ten Members have risen I declare the question carried. The names of the Deputies dissenting will be recorded in the Journal of the Proceeding of the Dáil.

Question declared carried. Sitting suspended at 1.40 p.m. and resumed at 2.30 p.m.