Self-interest usually lies behind use of privilege rule in Dail

BEFORE Christmas, and after The Irish Times had revealed that a senior Fianna Fail figure was the beneficiary of £1.1 million in payments from Dunnes Stores, the Dail had a debate on the issue. At the start of the debate, both the Ceann Comhairle and the Taoiseach gave stern warnings to the House that it would be highly improper for any deputy to name or make any allegation about anyone outside the House. The phrase "the abuse of Dail privilege" was given one of its seasonal outings.

It was accepted without demur. With grave nodding of heads it was agreed that it would indeed be an abuse of Dail privilege to make damaging statements about outside individuals under the protection of Dail immunity.

It is a good rule of thumb that whenever there is a combination of self-importance and consensus in the Dail, some mutual interest is being buried under a mound of high-flown platitudes. And this is certainly the case with "the abuse of Dail privilege".

For it all depends on who is being named and who is doing the naming. If the "person outside the House" might be a senior political figure, naming names is a disgrace, a gross violation of the right to one's good name. If, on the other hand, the person is of no great consequence, the name, good bad or indifferent, hardly matters.

Compare the rigorous decorum of the debate on the Price Waterhouse report with the treatment of Ted O'Reilly. Ted O'Reilly joined the Civil Service in 1945 and served in the Departments of Posts and Telegraphs, Finance and Foreign Affairs before becoming assistant secretary of Industry and Commerce in 1982, in charge of the international trade division. He has been described by one of the Ministers he served under, Michael Noonan, - as "an excellent public servant". In 1990 his performance of his duties was rated as "outstanding" and he was placed on the highest possible scale of pay.

In March 1991, however, he was called to a meeting with the Secretary of the Department, Sean Dorgan. He was asked to consider retiring and, when he said that he didn't want to, he was told that by law he could be retired at the discretion of the Minister (then Des O'Malley) because he was over 60.

As Miss Justice Carroll put it in her judgment on Ted O'Reilly's case in the High Court in 1993, "he was told that people found they could not work with him, but he was not told who or in what context". She went on to state that "in my opinion, the whole tenor of the conversation as far as Mr O'Reilly was concerned was that he was to retire because the Minister and Mr Dorgan wanted him to."

WHY the Minister and the Secretary wanted Ted O'Reilly to retire is a mystery. According to Miss Justice Carroll, "we shall probably never know.

Mr Dorgan said it was the Minister who brought up the question of retirement, even though Mr Dorgan told Mr O'Reilly that this was his idea. We don't know who or what moved the Minister to bring up the subject."

What we do know is that a very senior civil servant was given the impression that he had no choice but to retire. This was, according to the judge, "misleading" because Ted O'Reilly "came from that interview believing that he was required to retire and that he had no choice... Mr Dorgan himself contributed to that impression by failing to make it clear that he was only talking about voluntary retirement, if that was what Mr O'Reilly wanted and that Mr O'Reilly did have a choice".

Acting on what was, according to the judge, "effectively a mis-statement", Ted O'Reilly tendered his resignation. He was, in fact, sacked: "Compulsory retirement is effectively the same as dismissal."

As Miss Justice Carroll put it, "It is a sad state of affairs when a civil servant who has given honest and faithful service all his life finished his career in this manner. Mr O'Reilly may not be a modern organisation man. He may have faults, but he did not deserve to be treated as he was. The interests of good management which Mr Dorgan says were at the back of the projected reorganisation cannot leave out of the equation the necessity to treat the plaintiff, who was an older colleague, with consideration and good faith so that he did not act under a mis-statement."

The High Court awarded damages of £60,000 and costs of £76,000 to Ted O'Reilly. The State did not appeal that judgment. That should have been an end to the "sad state of affairs".

In May 1995, however, there was the second chapter of the affair of Father Brendan Smyth and the Attorney General's office, and a political controversy arose over the failure of the office to reply to correspondence from the victims of the paedophile priest. Faced with Opposition demands for the resignation of the relevant official in the Attorney General's office, Matt Russell, the Government side dragged out the Ted O'Reilly case.

IN the Dail, on May 24th and May 30th, 1995, the Taoiseach, Mr Bruton, made specific reference to "the O'Reilly case". Two statements he made about the case seemed to contradict Miss Justice Carroll's High Court judgment. He said that "an attempt was made to remove an official" and he implied that that attempt was made under the Minister's powers to compulsorily retire a civil servant over 60. This was not accurate: Ted O'Reilly was, as the High Court found, not compulsorily retired but unfairly dismissed.

And he implied that both the Minister at the time (Des O'Malley) and the departmental secretary had acted properly: "I have no criticism either of the Secretary of the Department at the time or, of Deputy O'Malley with regard to what they did." This in spite of the findings of the High Court that there had been "misleading" impressions and a "mis-statement" of the real position.

And all of this was said in the context of calls for the resignation of Matt Russell, an official who the Taoiseach said was responsible for "very serious errors". The impression given, therefore, was that Ted O'Reilly was rightly and properly removed from office because of some misconduct on his part - the opposite of what the High Court had found to be the case.

Ted O'Reilly could not, of course, take any legal action against the Taoiseach for words spoken in the Dail. He wrote to John Bruton, expressing his feelings of "personal humiliation and hurt" at the Taoiseach's statements about his case and asking him to tell the Dail that "you are now satisfied that your statements on the dates in question were unfair because they have been construed as reflecting adversely on me".

The Taoiseach's private secretary wrote back to say: "It was not the intention of the Taoiseach to reflect adversely on you in any way and he trusts this letter explains the position."

In this and subsequent correspondence, no apology, either private or public, has been offered to Ted O'Reilly. A version of events that is directly at odds with the findings of the High Court remains on the Dail record. Ted O'Reilly's problem, obviously, was that no one accused him of getting large payments from a private company. If only they had done so, stern warnings about the'

abuse of Dail privilege would have protected his good name.