No definitive ruling on Dáil privilege but editors will be reassured

Even to many of its members, the Oireachtas can often seem like a frustratingly limp institution, its influence limited by comparison with the might of the executive and the strength of the judiciary.

The Constitution didn’t quite envisage it that way. It sees the Oireachtas as a key centre of power, independent of cabinet ministers and judges, and gives TDs and senators significant privileges in wielding that power.

None is more all-encompassing that than set out in article 15.13, which states that members of the parliament cannot be amenable to the courts for anything they say in either chamber.

It’s there for a reason – to enshrine the right of elected parliamentarians to free speech, beyond the reach of any shackles the executive or the courts might seek to apply – and the judiciary have stressed its importance.

"This powerful non-amenability is granted for the benefit of democracy and the people," wrote Mrs Justice – now Chief Justice – Susan Denham in 1993. "It is a cornerstone of democracy that members of the Oireachtas have free speech in the legislature."

Free speech

A corollary of the right to free speech in the Oireachtas, and one also set down in the Constitution, is the right of the media to report on what is said there.

But when Independent TD Catherine Murphy made a statement about businessman Denis O'Brien in the Dáil last Thursday, including material that RTÉ had been prevented from broadcasting by a previous – if unpublished – High Court injunction, it threw up a question that has never been fully thrashed out in the courts.

Did Dáil privilege – and the media’s privilege to report on speech in the chamber – trump an injunction?

Some Irish media outlets published Murphy's speech. Most did not. Having received legal advice that it was not clear that the absolute privilege referred to in the Constitution would allow the media to disregard the court order, RTÉ and The Irish Times decided to go back to the High Court to seek clarification.

They got it yesterday, when Mr Justice Donald Binchy confirmed his original order was not intended to ban fair reporting of what was said in the Dáil. O'Brien's legal team, having last week warned media outlets that reporting Murphy's statements would result in an application to court to enforce the injunction, informed Mr Justice Binchy it was not part of O'Brien's case to seek to restrain utterances made in the Dáil.

Futile

By yesterday, with the story having been widely disseminated anyway, it would have been absurd and futile to pretend a lid could still be kept on it.

In some ways, it was a shame O'Brien didn't contest the case made by RTÉ and The Irish Times, if only because it might have meant we would have a definitive court judgment on a vital part of the Irish democratic architecture.

But the High Court’s unambiguous stance will still reassure editors, who often have to make difficult decisions under extreme time pressure in an environment where an outrageously costly and cumbersome defamation regime continues to cast a dark pall.