Specific conditions will have to be met before a TD's private papers are protected by Dáil privilege according to the Supreme Court, writes Carol Coulter, Legal Affairs Correspondent
For the potential whistle-blower, the question raised in the dispute between the Morris tribunal and Brendan Howlin is whether documents generated in confidential communications between an individual and his TD can remain confidential in all circumstances.
The short answer is no, unless specific conditions are met.
The case arose from an order by the Morris tribunal that Mr Howlin should produce his telephone records. These would reveal the identity of the person from whom he received information about the Garda internal inquiry into alleged corruption among the Garda Síochána in Donegal.
Because Mr Howlin's informant did not want to be identified, he refused to produce the records, citing his privilege as a member of the Dáil.
The privilege derives from Article 15 of the Constitution, which states that each House of the Oireachtas "shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties".
However, for the House to exercise this power of protection, it must take certain steps, according to the Supreme Court yesterday.
Different views were expressed as to what they might be, but all five judges were agreed that none of the necessary steps was taken in this instance, where Mr Howlin claimed he could invoke them himself by virtue of his membership of the Oireachtas.
According to the lead judgment, delivered by Mr Justice Geoghegan, the House would have had to pass a standing order or general rule, which could then apply to these documents, or to others in other circumstances, as and when the Oireachtas considered it necessary.
He went on to consider a separate argument raised during the hearing, whether the common law consideration that the public interest required either disclosure or non-disclosure in these circumstances. He agreed with the chairman of the tribunal, Mr Justice Morris, that in this instance the public interest did require the disclosure of the phone records.
So there can be no absolute guarantee to the constituent, seeking to confide in his TD, that any documents, like correspondence or phone records, generated in this exchange, might not become public in some circumstances if the public interest required it.
Mr Justice Hardiman had a slightly different emphasis in his lengthy judgment, where he said that the article in question needed to be interpreted very strictly.
It does not convey any absolute protection on an individual TD, but rather refers to the Houses of the Oireachtas themselves. They have the right to exercise the power to protect documents, not the individual deputy.
The Oireachtas, or the Committee on Procedure and Privileges to which it delegates certain powers, could invoke this protection.
But it did not do so in this instance, he said, and a resolution it passed on the matter, deciding to take legal advice on the question of privilege, was too general and vague to do so.
The bar for invoking the protection is high, according to him: "It must be perfectly clear that it has invoked the power to protect against a specific demand for disclosure whose significance it has considered, and it must be equally clear to what specific papers the protection applies."
He referred briefly to the question of common law privilege, and also found that the public interest required the disclosure of evidence to support, or not, such a serious allegation as that made by his informant, "that a large number of convictions were achieved by 'planting' evidence". Otherwise the work of the tribunal, set up by the Oireachtas, would be frustrated, he said.
Broader issues are at stake, specifically what protections can, or should, exist for "whistle-blowers" who seek to bring wrongdoing into the public domain.
Following yesterday's judgment, bringing one's concerns to a TD will not provide a guarantee of confidentiality.