The private papers of members of the Oireachtas do not enjoy absolute privilege from compulsory disclosure to courts or tribunals of inquiry, counsel for the Morris tribunal has argued before the High Court.
The tribunal is investigating the activities of some gardaí in Co Donegal.
In making orders of discovery against Labour Party TD Mr Brendan Howlin and Eircom regarding his phone records of June 25th, 2000, the tribunal was not making Mr Howlin amenable for anything he had said in the Dáil, Mr Michael Collins SC argued. This was the date on which Mr Howlin received certain information by phone regarding the conduct of the Carty Garda inquiry into alleged corrupt activities by gardaí in Co Donegal.
Rather, Mr Howlin was being made amenable for information which had come into his possession, which he had communicated to the then minister for justice, and which was not constitutionally privileged, counsel said.
There were very few absolute privileges in Irish law and if the framers of the Constitution had intended to give absolute privilege over members' private papers, they would have expressly said so, he argued.
Even if there was a constitutional right of confidentiality attaching to private papers, it was not absolute and was inferior to other rights, such as the right to due process and a fair trial.
Mr Collins, for the tribunal, was making submissions in the continuing hearing of a challenge by Mr Howlin to the tribunal's discovery order, made on February 28th last.
Earlier this week, Fine Gael Senator Jim Higgins withdrew his challenge to a similar order for discovery by the tribunal, relating to information received by him, also on June 25th, 2000, after the person who had faxed that information to Mr Higgins agreed to waive his confidentiality.
That development came after the court had earlier been told by Mr Collins that Co Donegal publican Mr Frank McBrearty had contacted the tribunal just days earlier saying it was he who had faxed certain information to Mr Higgins. Mr Howlin had a different source, a legal non-Garda source, and the tribunal did not know the identity of his source, counsel added.
Mr Howlin's challenge centres on the interpretation of Article 15.10 of the Constitution which gives the Houses of the Oireachtas power to protect "its official documents and the private papers of its members".
In submissions yesterday, Mr Frank Clarke SC, representing the Houses, argued there was a constitutional privilege attached to the private papers of members. The Constitution provided that members were immune from being made amenable to the courts or elsewhere for anything they said in the Houses. To ask members where they got the information on which they had based what they said in the House was effectively making them amenable for what they said. If members could not be made amenable for what they said, they could not be required to disclose the source of that.
He urged the court to look not just at the words of the Constitution but also to take into account what the Supreme Court had described as "the vast hinterland" of unwritten conventions behind the words.
Mr Howlin had taken a responsible decision to bring the information to the attention of the appropriate minister so it could be investigated by the appropriate authorities.
Confidential information from sources would quickly dry up if they were confronted by the possibility of public disclosure.
The case continues today before Mr Justice Kearns.