Report of the Forum on Parliamentary Privilege As made to the Ceann Comhairle, Mr Seán Ó Fearghaíl TD 21st December 2017 Table of Contents Membership of Forum 2 Chair’s introduction 3 1. Summary of recommendations 4 2. Background to the Forum 6 3. The Forum’s Work Programme 7 4. Themes from submissions received 9 5. The Constitution 11 6. Parliamentary privilege in other jurisdictions 14 7. Forum’s recommendations 16 8. Matters not recommended for change by the Forum 21 Appendix A – Procedure in other parliaments 22 Appendix B – Parliaments examined 23 Appendix C – Draft guidelines on the use by members of their constitutional privilege of freedom of debate 24 Appendix D – Standing Order 61 25 Appendix E – Standing Order 59 29 Appendix F – Summary of rules in parliaments examined 30 Appendix G – Forum terms of reference, advertisement, data protection policy, etc. 36 Appendix H – Submissions 42 1. Mr Kieran Fitzpatrick 42 2. Dr Jennifer Kavanagh 51 3. Deputies Clare Daly and Mick Wallace 53 4. Mr Kieran Coughlan 58 5. Deputy Mattie McGrath 65 6. Deputy Josepha Madigan 67 7. Sinn Féin 69 8. Deputy Catherine Murphy 70 9. Deputy Danny Healy Rae 71 10. Solidarity-People Before Profit 72 11. Deputy Lisa Chambers 77 12. Deputy Brendan Howlin, Labour Party leader 79 13. Deputy Eamon Ryan 83 14. Fianna Fáil 85 15. Association of Garda Sergeants and Inspectors 88 16. Fine Gael 95 1 Membership of Forum Membership of Forum on Parliamentary Privilege1 David Farrell, academic (Chair) Professor David Farrell holds the Chair of Politics at UCD where he is Head of Politics and International Relations. He is a member of the Royal Irish Academy and a former President of the Political Studies Association of Ireland. His research focuses on the study of parties, elections and parliaments. He is currently the ‘research leader’ of the Irish Citizens’ Assembly, and was a member of the Welsh Assembly’s Expert Panel on Electoral Reform. Mary Hanafin, former Government Chief Whip Mary Hanafin was a TD from 1997 to 2011. She held a number of Ministerial appointments, including Government Chief Whip, where she developed knowledge of the rules and procedures of Dáil Éireann. She is currently a councillor on Dún Laoghaire-Rathdown County Council. Conor Brady, writer and editor Conor Brady was editor of the Irish Times from 1986 to 2003, having held senior roles in print and broadcast journalism. He was a founding commissioner of the Garda Síochána Ombudsman Commission and serves on a number of State boards. He writes weekly on current affairs and politics for the Sunday Times. Conleth Bradley, senior counsel Conleth Bradley SC is a practising barrister specialising in constitutional and administrative law. 1 The Forum was assisted in its work by the Parliamentary Legal Advisor, Ms Mellissa English, and by Dr Catherine Lynch from the Oireachtas Library and Research Service. 2 Chair’s Introduction Chair’s Introduction It has long been recognised that parliamentary freedom of debate (sometimes referred to as ‘privilege’) is a vital component of any democratic system. It allows members of parliament to raise matters which need to be raised without fear of being sanctioned by the courts. The Forum on Parliamentary Privilege was set up by the Ceann Comhairle in summer 2017 to examine the operation of privilege in Dáil Éireann. In carrying out its work, the Forum examined the various factors impacting on the operation of privilege in the Dáil, including the provisions of the Constitution and the provisions of Standing Orders. The Forum also examined the operation of parliamentary privilege in other jurisdictions, and a range of submissions on the subject of privilege, made by parliamentarians and others. The Forum has considered how privilege is necessary for TDs to fulfil their electoral mandate, but also how this has to be weighed up against the potentially adverse effects on people outside the House of things said in the Dáil chamber. In our deliberations we have examined the way in which these two factors should be balanced against each other, in a manner that supports the rights of TDs, while giving an opportunity to people outside the House to a ‘right of reply’. Finally, given the seriousness of an abuse of privilege, the Forum has considered the need for sanctions for members who abuse it. Recent political events have given parliament a status that it has rarely had previously. The recommendations contained in this report are designed to support and enhance the operation of our parliament, which can only benefit us all. Professor David Farrell Chair of the Forum on Parliamentary Privilege December 2017 3 1. Summary of Recommendations 1. Summary of Recommendations Recommendation 1 – timeframe under Standing Order 61 1. The timeframe for making a submission under Standing Order 61 [‘Defamatory Utterances’] should be extended to three months, or the dissolution of the Dáil, whichever is the sooner. Recommendation 2 – prominence of ‘right of reply’ 2. Increased prominence should be given to the ‘right of reply’ under Standing Order 61 by including the right of reply as an electronic link from the original utterance in the Official Report (i.e., the Dáil debates). Recommendation 3 – historical abuses of privilege 3. In relation to historical findings of abuse of privilege, the original Committee on Procedure report (which will include any original submissions made on the matter) should be included as an electronic link in the relevant section of the debates. Recommendation 4 – requirement to withdraw utterances 4. A member who has been found under Standing Order 61 to have abused privilege should be required to withdraw his or her utterances in the Dáil– n at an equally prominent time to the original utterance; n within a set period of time; n in a form of words contained in the report of the Committee on Procedure on the matter; and n with the withdrawal electronically linked in the Official Report to the original utterance. Recommendation 5 – member who refuses to withdraw to be ‘named’ 5. Where a member who has abused privilege by making an utterance in the nature of being defamatory, does not withdraw the utterance within a set timeframe, the Ceann Comhairle should ‘name’ the member, and the question should be put to the House that the member stand suspended. If the House agrees, the member shall stand suspended for four sitting days. 4 1. Summary of Recommendations Recommendation 6 – suspension to include Committees 6. Suspension from the service of the House should also include suspension from participation in Committees. Recommendation 7 – form of prior notice to Ceann Comhairle 7. Prior private notice given under Standing Order 61 in relation to an utterance which may be defamatory in nature should be given in writing to the Ceann Comhairle and in good time. Recommendations 8, 9 and 10 – guidelines and training on use of privilege 8. Members should receive guidelines on responsible use of freedom of debate. 9. Training on responsible use of freedom of debate should be included in the induction for new members. 10. Committee Chairs and temporary Chairs in the Dáil chamber should receive training on responsible use of privilege. Recommendations 11 and 12 – highlighting of facility to make submission 11. The facility for making a submission under Standing Order 61 in relation to a Dáil utterance should be given more prominence on the Oireachtas website. 12. A programme in relation to the facility to make a submission should be broadcast on the Oireachtas channel as part of its regular cycles of broadcasts. 5 2. Background to the Forum 2. Background to the Forum Parliamentary freedom of debate 2.1 Freedom of debate is essential for parliament to perform its role of holding the Government to account. Without freedom of debate, drawing full attention to matters which require regulatory or legislative intervention (and thereby exercising their democratic mandate) could be extremely difficult for TDs.2 2.2 However, while TDs have this constitutionally-guaranteed privilege of freedom of debate, in practice, debate in Dáil Éireann has always been regulated in a way that balances two key considerations against that privilege. 2.3 These two key considerations are as follows: (a) the separation of powers between parliament and the courts; and (b) the need to protect the constitutional rights of persons outside the House, who have no effective recourse in relation to charges made against them in the House, other than the recourse provided by Dáil Standing Orders (the written regulations of the House). The Forum on Parliamentary Privilege 2.4 In summer 2017, Mr Seán Ó Fearghaíl TD, Ceann Comhairle of Dáil Éireann, set up the Forum on Parliamentary Privilege. The Forum was tasked with examining the parameters of parliamentary privilege, particularly in relation to freedom of debate and the responsible use of that freedom by TDs. 2.5 The Forum’s membership (listed on page 2) brought a range of expertise, from the fields of academia, politics, the media and the law, to bear on the issue of freedom of debate. 2.6 It is timely for the Forum to consider the matter of parliamentary freedom of debate. The Dáil Standing Order in relation to defamatory utterances (Standing Order 61) has been in operation, essentially unchanged, for 20 years. 2.7 It is also timely to consider these matters given the increased profile of Dáil utterances in the age of the internet and social media, where, once an utterance is made, it is essentially available forever on the world-wide web. 2.8 The impact of what TDs say in the Dáil is greater than ever before. This report examines the regulation of TDs’ privilege of freedom of debate, in order to ensure that it is both protected, and also used for the purpose for which it was intended, i.e., to hold the Government to account and to highlight gaps in legislation and public administration.