The Supreme Court judgment rejecting Brendan Howlin's claim of privilege over his telephone records puts the spotlight on the confidentiality of those who raise delicate issues with public representatives, in the expectation that they will be able to pursue them without the informant being exposed. But, there is something disconcerting about the judgment.
This is an important aspect of the role of public representatives. Many who encounter a matter they consider of public importance will go first to their TD. They may well also go to the media. There are many reasons why they may not want to go to a specific organ of the State, like the Garda. They might not want to have to give evidence in court, or want it known that they had raised the issue, as this might jeopardise their employment and cause difficulty to their families.
Until now, people assumed that such communications would have remained confidential. However, the Supreme Court judgment means that any paper trail related to the communication can be brought into the public domain through court proceedings or the proceedings of a properly-constituted tribunal, unless very specific steps are taken to invoke the protection of parliamentary privilege. This would require either the passing of a Standing Order by the Dáil or the Committee on Procedure and Privileges to give protection to private papers belonging to deputies, or the passing of a specific resolution by the CPP relating to specific documents.
This may not be enough. In a part of the lead judgment not directly related to the question in dispute, Mr Justice Geoghegan stated that he did not consider Article 15 of the Constitution covered the protection of papers against discovery to the courts or to a tribunal. "There is not, nor is there the potentiality to create, any constitutional privilege under Article 15.10 that can be pleaded against a third party or stranger in ordinary court proceedings or against a tribunal in tribunal proceedings", he said.
The ability of a TD to guarantee confidentiality to any constituent is limited to verbal communication, and to matters unlikely to end up before a court or a tribunal. This is a retrograde development, demeaning of the position of elected public representatives.
The interests of accountability in our democracy require that citizens should be able to go to their TDs and inform them confidentially of information. After this judgment, this will require specific legislation protecting those who raise matters in the public interest, either with their public representatives or with the media. It is in the interests of democracy that all political parties should have a united view on this development.