The Constitution caused a little flurry of confusion in the English Court of Appeal yesterday and even Mr Albert Reynolds's eminent lawyer had to plead ignorance on the matter.
Mr Andrew Caldecott QC, for Mr Reynolds, had begun by talking about the right of British MPs to waive parliamentary privilege in order to bring legal proceedings.
He said that under 1996 legislation, MPs had that right. The ordinary person's impression was that it was there to enable an MP to achieve vindication where there was an accusation of misconduct.
If any action by a politician was always going to be met by a defence of qualified privilege, the imperative of this section of the legislation would be greatly reduced, he said.
The impression one had from the section was that the concern was that an MP should have the right of vindication where justification was raised.
Mr Caldecott said he was not sure what was said in this regard in the Irish Constitution about TDs and wondered whether his solicitor could check on this.
As Ms Pamela Cassidy, Mr Reynolds's solicitor, produced a copy of the Constitution, Lord Lester QC, for the Sunday Times, said that he might be able to help. He was a member of the Irish Bar and as he understood it, members of the Dail were subject to a much narrower waiver that did not go as far as the 1996 Act.
Mr Caldecott said he had to admit he was ignorant of it and could not assist.
While Mr Reynolds and Ms Cassidy pored over the Constitution, Lord Chief Justice Bingham resolved it. "It seems to me that it's a little way from the heart of the case," he remarked.
The case is before Lord Chief Justice Bingham, Lord Justice Hirst and Lord Justice RobertWalker.
Lord Lester yesterday began his reply to the proceedings on qualified privilege.
He said privilege was derived from the subject matter of publication. The fact that a plaintiff was an elected public representative and the publication related to public functions gave rise to the duty to give information to the public.