The Taoiseach's assertion of privilege for statements made in the Dáil will chart new legal territory, writes Carol Coulter, Legal Affairs Editor.
Whether Bertie Ahern can be questioned on comments about his finances he made in the Dáil raises broader issues concerning Dáil privilege, which will have implications for other politicians asked to give evidence to tribunals.
Some of these issues were raised before, notably in Attorney General v. Hamilton, which was a challenge to the Beef tribunal. That case arose out of judicial review proceedings taken by the Attorney General of the ruling of the sole member of the Beef tribunal, Mr Justice Hamilton, that members of the Oireachtas could not be required to disclose the sources or the basis on which their allegations was based.
This was based on Articles 15.10 and 15.13 of the Constitution, which state: "each House shall make its own rules and standing orders... and shall have power to ensure freedom of debate," and "the members of each House of the Oireachtas... shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself."
Clearly this refers to courts or quasi-judicial bodies, rather than the issue of being politically answerable to the electorate for their statements and actions through the cut and thrust of debate inside and outside the Oireachtas, via the media and other avenues of communication.
The TDs involved in AG v Hamilton- Dick Spring, Pat Rabbitte and Tomás MacGiolla - had made allegations in the Dáil in relation to "irregularities" in the beef processing industry, following the transmission of an ITV World in Actiondocumentary on the subject. They had repeated these allegations in statements of evidence given to the tribunal of inquiry.
The question was whether they were protected by parliamentary privilege from being questioned on what they had said in the Dáil.
The majority of the Supreme Court considered the proceedings taken by the Attorney General to be an attempt to compel the TDs to reveal the source of the information which had supported what they had said in the Dáil. The four majority judges apparently agreed that a voluntary, conscious and deliberate repetition outside the Dáil of what was said inside it would constitute a waiver of immunity from questioning, but the statements they made to the tribunal were not such a repetition.
Mrs Justice Denham, the sole dissenting judge, held that while privilege existed in relation to statements made in the Dáil, this did not protect the TDs from being questioned on statements made to the tribunal.
However, this case concerned information about third parties, whom the TDs concerned were seeking to protect.
That question arose again in relation to TDs Jim O'Higgins and Brendan Howlin and their appearance before the Morris tribunal inquiring into the behaviour of certain members of the Garda Síochána in Donegal. They also could argue that they were bound by the trust of their informants. That does not arise in the case being brought by the Taoiseach.
What has not yet been considered, however, is whether the privilege attaches to each individual member of the Oireachtas, and is his or hers to waive, or is a collective privilege attaching to the two Houses. In the AG v Hamiltoncase Mr Justice O'Flaherty made additional comments about the waiving of parliamentary privilege, which seemed to suggest that individual members of the Dáil could do so if they wished. If this is the case, then the Taoiseach could decide to waive his right to privilege for his comments.
However, he appears to be claiming that the privilege attaches to the Houses of the Oireachtas themselves, and is not his to waive. According to some legal experts, this is what the wording of the Constitution seems to suggest, and that remains to be argued before the courts.
An important precedent has already been decided by another common law jurisdiction, when in a case called Prebble the New Zealand Supreme Court reinforced the importance of parliament as a collective entity, greater than the sum of its individual parts. Such cases have persuasive power in Irish courts.
So there are a number of issues to be decided. The first is whether all utterances in the Dáil are protected by privilege, which cannot be waived by any individual member, whatever his or her personal inclination. The matter can then only be decided by the Oireachtas as a whole, raising a second question as to whether it should be involved in an aspect of the Taoiseach's evidence to the Tribunal.
If the court does not accept this line of argument then the issue will be whether the Taoiseach can, as an individual member, be compelled to waive his right to privilege over his utterances in the Dáil, or indeed whether he can voluntarily waive it.
While his Dáil statements are protected, that protection is not absolute. Statements made in the Dáil which are repeated outside, or linked to other information or evidence outside the Dáil, cannot insulate the TD from questioning about the issue under examination.
Whatever the outcome of this case, it will clarify for the future the scope of parliamentary privilege as defined in the Constitution.