Defamation in the Dáil: The Right of Reply for Citizens, the Use of Standing Order 59 and Parliamentary Reform

Abstract

With the return of Dáil reform to the political agenda, it is timely to revisit a previous reform aimed at making the Dáil more transparent and responsive to the citizens it serves. Over 15 years ago, Standing Order 59 changed the relationship between members of the Dáil and the citizens. This reform of parliamentary privilege was to change the nature of political speech rights in Irish politics. The rule change meant that members of the Dáil would be made to answer for their statements when they damaged the reputation of a member of the public. At the time of introduction, this rule was met with claims that the provision would restrict the right to freedom of expression in the chamber and that the traditional role and protections for parliamentarians would be changed forever. There were also fears that it would create a stifled debating chamber, thereby curtailing the role of Parliament. Over 15 years after its introduction, the ability of members to scrutinise issues in the public interest is back on the agenda. There has already been one failed Oireachtas Inquiries referendum and pressure is growing for further reform of institutions to bring an investigative or inquires remit to the Houses of the Oireachtas. It is timely to assess the changes created by the original reform. This report analyses the reasons for the reform, concerns expressed at the time and whether the change has resulted in a more engaged parliament and it analyses the use of Standing Order 59. The results of the study show that the level of awareness of the change is minimal and questions whether reform is successful if the changes are not widely known and used.

Keywords:

• freedom of expression
• parliamentary speech and parliamentary privilege
• committee systems
• Dáil Éireann

Acknowledgements

This study was carried out with the help of Martin Groves, formerly Clerk to the Committee on Procedure and Privileges, Dáil Éireann, and Patricia Doran, Principal Clerk, Journal Office, Houses of the Oireachtas Services, who provided a report on the complaints that were submitted under the provisions of Standing Order 59 as the information does not form part of the Dáil record. The report has been submitted to the Editor. The author also wishes to thank Dr Eoin O'Dell, Law School, Trinity College and Prof. Gary Murphy, School of Law and Government, Dublin City University, for their comments on early drafts.

Notes

1. Article 15.10 states that the Dáil and Seanad has the power to ‘make its own rules and standing orders … power to ensure freedom of debate … 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’. Therefore, it is clear that freedom of debate is of extreme importance to the nature of democracy in Ireland. Moreover, the provisions of Article 15.12 add more weight to the privilege afforded to members of the Oireachtas in their deliberations in the chamber, stating that ‘All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged’.

2. Section 17 contains the defence of absolute privilege for defamatory statements made in either chamber of the Oireachtas.

3. The following definition of ‘utterance in the nature of being defamatory’ was adopted: ‘an utterance which, in the opinion of the Ceann Comhairle or of the Committee, could be construed as being defamatory if made other than in the course of parliamentary proceedings whereby a person who has been referred to by name or in such a way as to be readily identifiable has been adversely affected in reputation or in respect of dealings or associations with others, or injured in occupation, trade, office or financial credit, or that the person's privacy has been unreasonably invaded, by reason of that reference to the person’ (Standing Order 59 subparagraph 11).

4. The specific legal provisions in question were the Oireachtas (Allowances to Members) Act 1938, the Regulations adopted thereunder, being the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances), Regulations 1998 (SI No. 101 of 1998).

5. This issue was also discussed in Maguire v. Ardagh [2002] 1 IR 385, where the Supreme Court found that the Oireachtas overstepped its powers in making findings of facts which would impede on the good name of a citizen, and the drafters of the Houses of the Oireachtas (Inquires, Privileges and Procedures) Bill 2013 have tried to reflect this in constructing the relevant clauses.

6. This principle was applied in the twelfth complaint, which, even though deemed inadmissible as it was submitted outside the two-week time limit, raised an interesting point regarding the freedom for political discourse within the chamber.