TDs and Senators enjoys only limited immunity from prosecution

Are TDs and Senators travelling to or from Leinster House automatically immune from prosecution?

Does their position allow them to avoid penalty points or free them from having to stop at a Garda checkpoint?

To each question the answer is no.

However, the Constitution does confer on members of the Oireachtas a more limited privilege. According to article 15.13, TDs and Senators “shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while in the precincts of, either House...”

The key word is arrest. There is no provision, either in the Constitution or in legislation, giving elected representatives immunity from liability for offences.

The “immunity from arrest” privilege dates from 14th century England. It exists in English law and in the United States constitution, from where the Irish article was copied almost verbatim – first for the Free State Constitution of 1922 and then for the 1937 Constitution.

As Eoin O’Malley of the school of law and government at DCU has pointed out, the rationale behind it was to prevent abuses by executive authorities. If the government of the day could arrange to have TDs arrested it could thereby prevent them voting. So to a new State emerging from civil war, the provision made a great deal of sense.

Apart from this immunity from arrest while in transit, TDs and Senators are subject to the same road traffic laws as everyone else.

Random breath testing has existed in Ireland since 2006. It means that gardaí can, with written authorisation from an inspector, set up a checkpoint in any public place and breathalyse drivers without the need to have formed the opinion that they have consumed alcohol.

Checkpoint
Under law a garda may stop any vehicle at a checkpoint and require a driver to provide a breath specimen, either at the car or at another place in the vicinity of the checkpoint. Anyone who refuses or fails to comply immediately with the above, or to comply in the manner required by the garda, is guilty of an offence.

Moreover, a garda may arrest, without warrant, anyone who in his opinion is committing or has committed an offence of failure or refusal to comply with a request.