One of the greatest powers possessed by members of the Oireachtas is the power they have pursuant to article 15.13 of Bunreacht na hÉireann which provides that 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.”
This power grants absolute privilege to members in respect of what they say in the Oireachtas meaning any statement by an Oireachtas member about another person, no matter how defamatory, cannot be challenged in any court.
Usually when someone has been grievously and very publicly defamed they can bring defamation proceedings before a court to have their good name vindicated and the defamer brought to account. No such remedy exists for a person defamed as a result of statements made by a member in either the Dáil or the Seanad.
When Mary Lou McDonald stood up in Dáil Eireann last November and named six former politicians as having allegedly evaded tax she seriously defamed those persons. The clear meaning of her Dáil speech that day was that the people she named had engaged in tax evasion. Those people had no remedy against her, particularly since she carefully refused to repeat her allegations outside the confines of the Dáil.
Up to that time our parliamentarians in this Republic had a good record of not abusing their powerful Dáil privilege. Unfortunately, this was not a record shared by members of the British parliament, particularly those representing Northern Irish constituencies. Ironically, by abusing Dáil privilege as she did, Deputy McDonald joined some unusual bed fellows.
During the troubles in Northern Ireland parliamentary privilege was abused by some politicians who wanted to generate publicity for themselves and unfairly target political opponents. In particular, some unionist politicians acted as judge and jury by naming in the House of Commons persons whom they alleged were involved in paramilitary activity. It was a shameful and dangerous practice that denied the most basic rights to the persons accused.
In February 1999 An Phoblacht accurately described this cowardly practice. It said:
“Parliamentary privilege is a refined and more lethal version of the Diplock Courts. Where Diplock operates without the hindrance of a Jury, parliamentary privilege dispenses with the need for either judge or jury….The namer of names is all powerful, and all protected. The person named powerless to defend their name. It is a classic form of British `justice’… Advocates of the policy call it `name and shame’. In this game of name and shame the shame in fact lies on those who take refuge under the cowardly apron of privilege.”
By stating that six former politicians were involved in tax evasion without even enquiring of those still alive whether it was true, Deputy McDonald cast judgment on them without judge or jury. She did so in full knowledge of the power and constitutional protection that she possessed. Knowing that she could not be brought to account through our courts, she decided to name and shame.
The reason she took this step was because she knew that it would generate huge publicity for herself; publicity that afforded no comeback to the people whom she had defamed since had they instituted any defamation action she could successfully rely on the defence of absolute privilege.
Although Deputy McDonald sought to shame the six former politicians, the shame in fact lied with her when, as An Phoblacht so eloquently stated, she took refuge under the cowardly apron of privilege.