The most senior ruling committees of the Oireachtas will appear before a tribunal today to argue that TDs and Senators should be able to protect their sources.
The powerful Dáil and Seanad committees on Procedures and Privileges will make a case before the Morris tribunal investigating alleged Garda corruption in Donegal that the Wexford Labour TD, Mr Brendan Howlin, and the Fine Gael senator, Mr Jim Higgins, should not be asked to give telephone and fax records of contacts with their sources.
The clash between the committees, representing all TDs and senators, and the tribunal is unprecedented.
The tribunal is insisting that Mr Howlin and Mr Higgins hand over records in relation to the passing on of information in relation to the Donegal Garda corruption case to the then minister for justice, Mr O'Donoghue.
Last night both men remained adamant that they would not, under any circumstances, reveal their sources.
"There is a cross-party view, at every level, that such an intrusion into the relationship between a public representative and the citizen would be quite improper," Mr Howlin told The Irish Times.
Mr Higgins said that he was absolutely dogmatic on the issue. "There is a fundamental and core principle involved, apart altogether from a constitutional right. There is no way we can accede to any tribunal order for discovery of records."
If Mr Justice Morris finds against the Oireachtas members, it is likely that his ruling will be challenged in the courts.
Lawyers representing the committees and Mr Howlin and Mr Higgins will argue their case at the tribunal today.
In May of last year, the Director of Public Prosecutions (DPP) was asked for advice by the Garda relating to accessing the two politicians' records.
He is understood to have advised the Garda not to take such a step.
This view was later supported by the Minister for Justice, Mr McDowell, who said he was not prejudging what the tribunal should do. "However, generally speaking, I agree with the privilege which attaches to members of the Oireachtas. The Director of Public Prosecutions made an independent judgment, and I agree with it in this matter."
Mr Howlin and Mr Higgins have the backing of all TDs and senators who regularly receive confidential information from constituents and other members of the public.
The two men's claim to confidentiality is not based on the traditional right to parliamentary privilege, as it does not relate to anything that was said within either chamber of the Oireachtas.
Rather, they are asserting that individuals have the right to give information to Oireachtas members in confidence without fear of having their identities revealed.
The claim is similar to that frequently made by journalists relating to the protection of sources of information.
They are also expected to point to Article 15.10 of the Constitution which says each House of the Oireachtas has power "to protect its official documents and the private papers of its members".
