A Garda plan to examine the telephone records of two Oireachtas members has troubling legal and political implications, writes David Gwynn Morgan
Plans by senior gardaí to examine the telephone and fax records of Mr Brendan Howlin TD and Senator Jim Higgins to ascertain the source of allegations regarding Garda corruption are, at the moment, stalled. But the story hasn't gone away, and it now appears that the Morris tribunal is pursuing the matter.
"Parliamentary privilege" consists of exceptions to the general law and is designed to facilitate Oireachtas members in their duties of free and informed debate. Broadly speaking, these can apply in two areas. The first, which centres on debates in the chamber and, to a lesser extent, committees, was well-established before the era of mass democracy.
The second - into which the present episode falls - mainly concerns relations between deputies and their constituents and is not as strongly developed. An example is Lindsay v Maher (1984), a case that arose out of strong criticisms of farmers by a High Court Master, the equivalent of an assistant judge.
When Mr T.J. Maher, an MEP, delivered a fairly robust response in public to the Master, he sued for libel. The High Court held that, despite the fact that Mr Maher was speaking outside the chamber of any parliament, his words had been spoken on behalf of his constituents and therefore enjoyed qualified privilege.
A more recent precedent arose out of the Beef tribunal. Here constituents had made allegations of malpractices in meat plants to three deputies (Spring, Desmond and MacGiolla) who summarised them in the Dáil chamber and then repeated them before the Beef tribunal.
The courts ruled that, despite the fact the statements were published outside the House, they were sufficiently closely connected with the proceedings of the House to attract parliamentary privilege and the deputies could not be forced to disclose the identity of their informants.
If the Garda had their way, the form in which the present incident would have arisen would have been different - in the Spring case the deputies were ordered to disclose their sources and declined to do so and the matter came before the courts. In the present case, if the Director of Public Prosecutions had not quite correctly taken the two politicians' rights into account, the examination of their records would probably have occurred without their knowledge.
Because the model of parliamentary privilege followed in the Constitution was already well developed before the coming of mass democracy, its thrust is towards proceedings in the House, rather than relations between deputies and constituents. This could pose a difficulty for Mr Howlin and Senator Higgins.
The most promising provision of the Constitution, for their purpose, is Article 15.10 which states: "Each House . . . shall have power to ensure freedom of debate, to protect the private papers of its members, and to protect itself and its members against any person interfering with or molesting its members in the exercise of their duties."
From its reference to the private papers, this provision is plainly directed at, among other things, any attempt to unearth a communication sent to deputies by constituents. However, there are two significant features of the way in which this policy is implemented.
In the first place, the provision speaks of a "power" and a power has to be exercised for it to be effective. As yet there has been no such exercise. Secondly, the power is vested in the House rather than an individual member so that its exercise - probably by way of a resolution - would seem to require support of a majority.
A relevant question here is the form and forum in which the current dispute is most likely to arise. It most probably would be if the politicians were asked to identify their sources before the Morris tribunal and refused to do so. The matter would then have to be settled by the court.
Arguably, the Spring case is not exactly in point for two reasons. First, in Spring, unlike now, the allegations had previously been aired in the Dáil. But, in the other direction, there is a unique feature of the current episode which tells in favour of the existence of a privilege. The two politicians did not publicise their allegations but simply took them confidentially to the Minister for Justice.
All in all it seems to me that if the idea underlying parliamentary privilege - a special exemption, including confidentiality of communications, to facilitate the performance of the constitutional duty of Oireachtas members - is observed, then the politicians in the present episode have a strong case. Although the way that the constitutional article is drawn presents a problem, I would expect the courts to rule that while "the letter killeth, the spirit giveth life".
But, even apart from parliamentary privilege, the politicians are not without a remedy. The bugging of communications is such an intrusive action that it is stringently controlled even where non-Oireachtas members are the targets. One well-known milestone in the law's development in this area is the Geraldine Kennedy case, in which it was held that the State should pay damages for the breach of the constitutional right to privacy involved in the tapping of the phones to journalists who were receiving information from Fianna Fáil dissidents during the GUBU era in 1982.
Later the Interception of Telecommunications Act 1993 was enacted. It provided that such interference had to be authorised by the Minister for Justice, for the purpose of either a criminal investigation or the protection of State security. Anyone who believes that their communications have been intercepted is entitled to have a complaint investigated by a referee, who is empowered to award damages.
Curiously these episodes bring together two State institutions, one of which exercises much more effective political power than it ought, and the other which exercises much less. One can see the strong, almost uncontrolled, position of the Garda in the fact that no one even suggested they should be prosecuted for the mass offence of obtaining money by false pretences, known euphemistically as "The Blue Flu".
They also defeated the Oireachtas, probably rightly, over the Abbeylara Oireachtas inquiry, although the Supreme Court's subtle ruling has been misunderstood as leaving the Oireachtas even less power of investigation than is in fact the case.
But I take the Oireachtas members to win this rematch.
• David Gwynn Morgan is Professor of Law at UCC