Article 15.13 of the Constitution provides that members 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." And its preceding article provides the necessary corollary of that freedom of speech – that proceedings are "privileged" so that they can be reported freely by the media without fear of prosecution.
Such privilege , described by the authoritative Erskine May, the British bible on parliament and the law, as "rights which are absolutely necessary for the due execution of its powers", has long roots, back to the 1689 Bill of Rights, and is also enshrined in the US Constitution of 1787. It was an essential cornerstone in the establishment of the primacy of parliament.
In AG v Hamilton (No 2), Mrs Justice Denham, now Chief Justice, said of the same principle: "This powerful non-amenability is granted for the benefit of democracy and the people ... It is a cornerstone of democracy that members of the Oireachtas have free speech in the legislature. This right to free speech is for the protection of the democratic process and in doing so it protects parliament and deputies in parliament ... By this non-amenability for utterances in either House, save to the House, the legislature retains its separate strength free from any shackles an executive might wish to fit." Or from overreaching judges, if they are so minded.
The attempt to use the courts to gag reporting of TD Catherine Murphy represents not just a dangerous attack on the public interest right to know the details of the banking arrangements of one the country's richest men, Mr Denis O'Brien, but a deeply worrying erosion of a pillar of our parliamentary system. On both grounds it faces challenged in the courts by The Irish Times and RTÉ.
Ms Murphy's comments, as former attorney general Michael McDowell argued in these pages , were "not an irrelevant contribution artificially and gratuitously thrown into some other piece of Dáil business". In discussing the Anglo bailout and the treatment of one its largest customers, Ms Murphy was raising matters of key importance to taxpayers. "The nature of her concerns," he argued, "and their scale ... takes the matter well outside the 'private' in the personal sense of that term. If her remarks concerned a company's affairs, no-one would see them as in any way "private" even though many companies are private."
If Ms Murphy’s comments were an abuse of her parliamentary privilege in breaching privacy rights or were factually incorrect, as Mr O’Brien’s spokesman insists they were, then she can properly be brought to book by her peers in the Dáil Committee on Procedure and Privileges, as was Ms Mary Lou McDonald recently. She should not, nor should the media organisations which report her, be made answerable to the courts.