Remember citizens need protection, too

Parliament and its members must speak independently, but don’t forget the public, writes Gay Mitchell

THE High Court confirmed last week that Article 15.13 of the Constitution gives strong protection to members of both houses of the Oireachtas. They are not, in respect of any utterance in either house, amenable to any court or any authority other than the house. Only the Oireachtas can address abuses of such privilege.

Article 15.10 provides that: “Each house shall make its own rules and standing orders, with power to attach penalties for their infringement.” This is mainly aimed at protecting the house and its members, “from… any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties”.

MEPs have similar immunity from prosecution for opinions expressed in the course of their duties. This includes opinions expressed outside of Parliament, so long as they relate to the exercise of an MEP’s duties. This immunity can be withdrawn by Parliament itself.

The Parliament revoked the immunity of French National Front MEP Marine Le Pen in 2013 for comments she made in December 2010 comparing Muslims praying in the streets to Nazi occupation. This left her open to prosecution in France and a possible fine of €45,000 and up to five years in prison, if convicted. Her father, Jean-Marie Le Pen, was also stripped of his immunity in 1990 for inciting racial hatred. The case of British UKIP MEP Jane Collins, who was pursued in libel proceedings by three British MPs for comments she made in the UK, was heard in 2016. The Parliament did not uphold her immunity.

In a European Court of Justice ruling in 2011, the court ruled that national courts have the right to decide, in certain circumstances, if MEPs’ immunity applies.

There is no similar provision in Ireland for the Oireachtas or the courts to lift immunity, and, as last week’s High Court ruling makes clear, only the Oireachtas can address such matters.

Our Constitution protects Parliament and parliamentarians, or, as the High Court put it, protects democracy. But The same Constitution in Article 40.2 requires that: “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” So who is to protect the citizen if it is Oireachtas members, using privilege, who are making the unjust attack?

National adversarial politics can be tribal. The tight whip system dilutes the individual freedom of TDs and senators. All of this makes it difficult for the Oireachtas to judge individual members fairly. So some outside assistance seems desirable.

The Oireachtas is made up of the President of Ireland and both houses (Article 15). In the absence or incapacity of the President, the chief justice and the chairpersons of the Dail and Seanad form a three-person commission to perform his/her duties. The chief justice is inserted, so to speak, into the Oireachtas on a temporary basis. Could this provision provide a template for the houses of the Oireachtas to protect the citizen from unjust attack?

Could this body be conferred by law with powers to recommend the lifting of parliamentary immunity in well-defined circumstances? Could this body recommend to the Oireachtas the penalties? If this commission were to act by unanimity then chairpersons of both houses who were, say, of the same party could not ride roughshod over the chief justice. This would bring an element of judicial thinking to the proceedings.

Parliament and its members must be free to speak and be independent in their deliberations. However, being independent is not the same as being unaccountable. As statements in the Oireachtas are now broadcast live and without editing, it is time to make provision for the rights of citizens, too.

‘It is time to make provision for the rights of citizens and members’