Dáil Privilege and Publication

Dr Seán  Ó Conaill


While the political fall out from Denis O’Brien’s legal action and the subsequent comments made by Catherine Murphy in the Dáil continues to gather steam there remains a lot of uncertainty about the exact constitutional position when it comes to Dáil Privilege and publication.

What is certain is that Denis O’Brien and others successfully obtained an injunction restraining RTÉ from publishing a details about Mr O’Brien’s banking and commercial arrangements.

Yesterday Catherine Murphy TD made a number of comments on the record in the Dáil in connection with a seemingly related matter. Questions have been posed since asking whether media outlets are free to report the comments made by Deputy Murphy under the generally accepted Dáil Privilege or whether the comments are still covered by the restraining injunction previously granted.

In the normal course of events if an injunction was granted then any subsequent breach of that injunction would be considered a contempt of Court however Dáil Privilege has the potential to alter this dynamic. The original concept of Parliamentary privilege covered privilege from defamation actions concerning any utterances made in the houses of Parliament. What is not entirely clear, legally speaking, if this privilege extents to some form of immunity from contempt of Court.

The most relevant Article of the Constitution here is 15.12. Article 15.13 has important protections for the TDs and Senators themselves but does not directly concern the media. Article 15.12 however tells us that “all official reports and publications of the Oireachtas…and utterances made in either House wherever published shall be privileged”.

The exact meaning of privilege and the extent of this protection in this situation is uncertain as we have never had a case exactly on point however the Supreme Court did rule in Attorney General v Hamilton (No 2) in 1993 that this privilege was wide ranging and extends “to any form of legal proceedings” and is not merely confined to defamation.

The Irish text of the Constitution (which is the authoritative text) makes this somewhat clearer whereby the Irish text says “táid saor ar chúrsaí dlí cibé áit a bhfoilsítear” which translates literally as “being free from matters of law wherever published” which would seem to suggest that publication of official records is absolutely covered and extents to all forms of legal actions including contempt of Court.

A further question arises as to whether the protection granted by Article 15.12 merely extends to official publications which are published by the Oireachtas itself or whether others who publish the materials are also covered. The law in the area of defamation defines publishing very broadly as bringing material to the attention of another and it is difficult to see any Court willing to define publication in this context so narrowly as to only cover documents published directly by the Oireachtas themselves.

On balance it would appear that publication of comments made in the Dáil should enjoy the protection of privilege particularly with a view to the seemingly wider scope offered by the Irish text of Article 15.12 however questions still arise as to the limits of this privilege. Could TDs, for example, constantly frustrate all publication based injunctions simply by making statements in the Dáil which could then be reported? This would bring us to the point where the Court’s Order would essentially become irrelevant and worthless and then questions would naturally arise as to what extent Courts should continue to allow privilege to reach.

It is worth noting that Dáil Standing Order 57 (3) requires that  “a matter shall not be raised in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the Courts or a Judicial Tribunal”.  This goes some of the way to allaying these fears by way of the Dáil’s own rules however the Courts have recently expressed serious concerns in Callely v Moylan & Others about ever intervening any such issue even if the Dáil itself failed to do so.

Dr Seán  Ó Conaill

Twitter @soconaill

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The Marriage Referendum on ConstitutionProject.ie

With the broadcast moratorium now in effect citizens have some breathing space to reflect on the Marriage Referendum before polling closes tomorrow.

ConstitutionProject.ie, through Dr Conor O’Mahony, Dr Laura Cahillane and Dr Seán Ó Conaill, has engaged with many aspects of the various issues and debates surrounding the Marriage Referendum via media engagement, speaking at public events/debates and in particular blogging here on ConstitutionProject.ie.

Immediately prior to the campaign beginning in earnest Dr Conor O’Mahony looked at how the issue of Marriage Equality made it the US Supreme Court.

Dr Seán Ó Conaill explored the potential issues surrounding the use of terminology in the Referendum Campaign particular with regard to the Referendum Commission.

Although not directly connected to the Referendum itself there has been much discussion during the campaign on the Children and Family Relationships Bill. Dr Conor O’Mahony explored the constitutionality of the bill.

The Irish language wording of the proposed amendment attracted a lot of attention in the early stages of the campaign. Dr O’Mahony and Dr Ó Conaill engaged in a high profile debate in the Irish Times. Dr Ó Conaill also analysed the original wording and drafting process (also available in Irish) and the revised final wording.

During the height of the Marriage Referendum campaign the Supreme Court issued its judgment in the Jordan case. Although the Jordan case was concerned with the Childrens’ Referendum and not the Marriage Referendum, the case had relevance to all referendum campaigns (as discussed by Dr Cahillane here).  The judgment helped to clarify the terms of engagement for the ongoing referendums; Dr Ó Conaill provided some analysis here.

However, of all the issues in the Marriage Referendum debate, the one that attracted the most attention and interest was the issue of surrogacy and donor assisted human reproduction. Dr O’Mahony conducted an extensive analysis of the issue, which was widely quoted and referred to in the course of the campaign (see, eg., the Irish Times Newspaper, the Irish Times podcast, the Irish Examiner, RTE Drivetime and Spirit Radio) and was the most viewed piece on ConstitutionProject.ie with almost 7,000 views. Dr Laura Cahillane also appeared on an RTÉ Prime Time feature on the issue and offered her expert opinion. Finally, Dr O’Mahony concluded the commentary on the issue with an analysis of the number of lawyers offering opinions on both sides of the surrogacy/DAHR issue.

Thank you for reading!

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The Wisdom of Crowds: Legal Opinions on Surrogacy, DAHR and the Marriage Referendum

Dr Conor O’Mahony

The campaign around the referendum on marriage equality has seen technical argument around the interpretation of the Irish Constitution rear its head in places it is not often seen, whether in the media, the barroom or the doorstep. The central point of dispute has been whether the proposed amendment would give same-sex married couples a constitutional right to access donor-assisted human reproduction (DAHR) or surrogacy services and/or tie the hands of the Oireachtas with respect to laws governing access to such services and governing adoption.

The No campaign has argued vociferously that these consequences will flow from a Yes vote, and has produced some lawyers to support this claim. The independent Referendum Commission has stated that they will not, and this view has been echoed by a large number of lawyers (some of whom are associated with the Yes campaign and some of whom have not declared a voting intention). How should the average voter react to this?

Many readers may have heard of the concept of the Wisdom of Crowds (for example through James Surowiecki’s 2004 book). A much older version of this line of thought is Condorcet’s Jury Theorem, which dates back to 1785. The jury theorem holds that a decision made by majority vote of a group of people becomes more likely to be correct as the size of the group increases, provided that each member of the group is more likely than not to be correct (i.e. more than a 50% chance).

It seems like a reasonable assumption that highly educated, experienced and professional legal experts have a greater than 50% chance of being correct on a question of legal interpretation. Thus, the more legal experts that are asked a question, the more likely it is that the position arrived at by the majority of them is the correct one. This helps to explain why the number of judges used to decide a case increases as the issues become more complex. Routine cases are decided by a single judge. Complex High Court cases, like Marie Fleming’s case on assisted suicide in 2013 or last December’s judgment on whether life support could be removed from a brain dead pregnant woman, are decided by a Divisional Court of three judges. Supreme Court cases are decided by five judges, and the most complex – like last November’s judgment on surrogacy – are decided by seven.

In light of the above, it has been striking to note how the overwhelming body of opinion among Irish lawyers has supported the view taken by the Referendum Commission – namely, that a Yes vote in the referendum will not give any married couple, gay or straight, a right to access DAHR or surrogacy services. The same number hold the view that if credible evidence could be produced to the effect that it is not in the best interests of children to be parented by same-sex couples, the Oireachtas would remain free to legislate so as to prevent this from happening, whether through adoption, fostering, DAHR or surrogacy.

A quick run-down of the lawyers holding this view seems in order. I expressed this view in a blog posted on this site on April 21. Since, then, aside from the Referendum Commission, this analysis has been publicly echoed by one large representative group and at least thirteen further individual legal experts:

Contrast this with the number of lawyers produced by the No campaign to support their claims: Dr Thomas Finegan, legal advisor to Mothers and Fathers Matter; a legal opinion commissioned and published by the Iona Institute (written before Article 42A on Children came into effect); and a group of three lawyers styling themselves as “Lawyers with Real Concerns Voting No”. Thus, on one side is a group with hundreds of members; at least fourteen separate individual opinions, and the independent Referendum Commission. On the other side is a group with just three members and just two individual opinions (one of which fails to account for recent constitutional change).

Obviously, many of the names listed above have taken a partisan position in the referendum – as would be expected in a vigorous democratic debate – and could therefore be accused of bias. Presumably, RTE Prime Time approached Dr David Kenny and Dr Laura Cahillane as they are not associated with either campaign and have not publicly declared their voting intentions. The key part of all of the above, however, is that the Referendum Commission is required by law to be completely impartial – as a body funded through the public purse, it is bound by the principles set down in the McKenna and McCrystal judgments that preclude public funds being used to distribute information that either expressly advocates a vote in either direction or is biased in favour of a vote in either direction. A notable feature of the RTE Prime Time feature was the virtually identical analysis presented by Mr Justice Kevin Cross of the Referendum Commission and Dr Kenny and Dr Cahillane (which was also closely aligned with the analysis published on this blog a full three weeks earlier). While two independent lawyers have agreed with the Commission, none have agreed with the No campaigners.

Recall that Condorcet’s Jury Theorem holds that a decision made by majority vote of a group of people becomes more likely to be correct as the size of the group increases. By now, a large number of lawyers have had their views canvassed on this issue. The clear majority are of the view that the analysis of the issue offered by the Referendum Commission is correct. This is unsurprising, given the independence and expertise of the Commission, and also re-assuring to the average voter.

In spite of this, the No campaign has refused to accept that the Referendum Commission’s statements undermine their position. Ultimately, an argument like this would be resolved in the courts, and as noted above, a case on a sensitive issue like surrogacy would be heard by the Supreme Court sitting as a court of seven judges. Therefore, an argument can only succeed if at least four Supreme Court judges accept it. Since Supreme Court judges are products of the legal community, it seems fair to suggest that a clear majority opinion among the legal community is a good indicator of what a future Supreme Court might hold. In this case, the odds of four Supreme Court judges being persuaded by the claims being made by the No campaign seem remote in the extreme.

If the No campaign is really concerned about what it professes to be concerned about, then its members should be relieved to be in the minority. All indications are that the concerns that they have expressed about the legal impact of a Yes vote are highly unlikely to come to pass. Perhaps they continue to express those concerns because they hold them so deeply; perhaps they do so in order to deliberately stoke up fear and confusion among undecided and “soft Yes” voters so as to advance opposition to an unrelated issue. Perhaps it is a little of both. Whatever the explanation, anyone who is considering voting No solely on the basis of fears around legal implications related to adoption, DAHR or surrogacy should now know that they can safely exclude those issues from their considerations.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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Answers to Marriage Referendum Questions posed on RTÉ’s Prime Time


Dr Laura Cahillane appeared on last night’s Prime Time as part of a panel of experts which included David Langwallner and Dr David Kenny and the Chair of the Referendum Commission Mr Justice Kevin Cross. The footage can be viewed here (the segment appears from 22 minutes onwards).

Dr  Cahillane’s written answers to the Prime Time Questions on the Marriage Referendum are available here;


  1. If the Marriage Equality Referendum is passed will it be constitutionally permissible to favour an opposite sex married couple over a same sex married couple in any laws, regulation, or policy of a statutory body, governing the adoption and fostering of children?


If the referendum is passed, opposite sex and same sex married couples will be equally recognised and protected by the Constitution. Article 40.1 prevents arbitrary discrimination so it would not be possible to favour opposite sex married couples in any way.


The only exception to this would be if it was possible to prove conclusively that same-sex couples are essentially less suitable to act as parents than opposite-sex couples or that children fare better when raised by opposite-sex parents rather than same-sex parents. However, there is no research to support this position, as far as I am aware.



  1. If the Marriage Equality Referendum is passed, will it be constitutionally permissible to favour opposite sex married couples over same sex married couples in any laws, regulations, or policy of a statutory agency, governing surrogacy and assisted human reproduction?


Currently, we do not have any sort of detailed legislative framework around surrogacy and assisted human reproduction. There is certainly no right to access surrogacy or any related services. If in the future, the Oireachtas provides legislation in this area and if the amendment is accepted by the people, it will not be possible to positively discriminate in favour of opposite-sex couples in the absence of proof that this would be in the best interests of the child.



  1. If the Marriage Equality Referendum is passed, could a same sex couple successfully challenge any future restrictions on surrogacy and donor assisted human reproduction, even if that restriction also applied to opposite sex couples, on the basis that it is interfering with their constitutionally-protected right to create a family under this amendment?



There are a few points which need to be addressed here. First, the right to procreate is not actually derived from Article 41, which is the Article currently under discussion. While, in the original case where this right was first discussed, the judges linked the right to marriage, it was decided that the right was not located in Article 41 but rather it was an individual, personal right and part of the doctrine of unenumerated rights in Article 40.3. So, while it has been linked to marriage, given that it is a personal right, it is open to argue that persons who are not married could claim this right.


Also, it is important to note that this right relates to natural procreation only – it does not include the right to access surrogacy or AHR services. Furthermore, the right is very limited. The State is lawfully empowered to restrict the right, provided it acts legitimately and proportionately, and the right can be overridden. Thus, even if this right was extended to surrogacy and AHR in the future, the Oireachtas would be perfectly entitled to place restrictions on it.


Finally, of crucial importance here is the new Article 42A which has recently been inserted into the Constitution and which provides that the best interests of the child are paramount in any decision regarding their welfare. As Dr Geoffrey Shannon has recently pointed out, no-one has a right to a child; a child has a right to a family and the child’s best interests will be the determining factor.


The bottom line is that a yes vote will not mean an automatic right to procreate and it will not create a right to access surrogacy or AHR services for same-sex couples.


Dr Laura Cahillane

Twitter @LaurCah

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Supreme Court Judgment in the Jordan Case and the Childrens’ Referendum


Dr Seán  Ó Conaill

The Supreme has today unanimously rejected a challenge taken by a private citizen which stemmed from the Childrens’ Referendum which was held in 2012 but which could not yet fully become part of the law of the land until this challenge was resolved.


The genesis for the case was the Supreme Court’s ruling in the McCrystal case which unanimously held that the Government had illegally interfered with the Childrens’ Referendum by running a biased information campaign with tax payers’ money in clear violation of the earlier McKenna principles.


Ms Joanna Jordan was supreme courtchallenging the outcome of the referendum using a little explored process contained in the Referendum Act, 1994 whereby the result in a Referendum can be set aside if illegal interference by the State in the Referendum process had a “material affect” on the outcome.


She was also challenging the Referendum Act, 1994 itself, claiming that the Act sets too high a burden upon those who are seeking to set aside referendum results, to the point where it is virtually impossible for a petitioner to succeed. She claimed that given the near impossible burden, the State is allowed to act with near impunity – free to illegally interfere, knowing that the petitioners can never succeed. Jordan claimed that in such petitions the burden of proof should shift from the petitioner to the State where illegal activity was clearly established.


The High Court had previously dismissed her petition and her challenge against the Act itself.


It is a core value of our democracy that the sovereign will of the people be respected at all times and cases such as Jordan and McKenna set two competing elements of that sovereignty against each other.  On the one hand, the people must be allowed to cast their votes in a free and fair manner without interference; but on the other hand, unelected Courts are understandably very slow to be seen to overturn the will of the people as expressed in a referendum, even where it may seem that a referendum process was tainted by illegality.


Much of today’s Supreme Court decision focused on what test should be used in order to assess if illegal activity has had a “material affect on the outcome of a referendum”.


The Courtref pic held that “…’material affect on the outcome of a referendum’ involved establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person could be in doubt about, and longer trust, the outcome of the election or referendum”.


The Court also went on to hold that the Act itself was not unconstitutional and that the burden of the test was reasonably proportionate to the gravity of the relief sought.


Ultimately this decision in of itself is not surprising. While there is no doubt the Government made a significant error by engaging in illegal and entirely unnecessary behaviour during the Childrens’ Referendum, it was never likely that any Court would interfere with the sovereign will of the people as expressed at the referendum (described as an “awesome undertaking” by the Supreme Court in the Hanafin decision in 1996). The more pertinent questions which emerge from the aftermath of this case are about the entire referendum process itself: how we provide information to the people on the question they are voting on, and how we ensure that Governments don’t interfere illegally with the People’s sacred right to amend their own Constitution. If further challenges like McKenna, Hanafin, McCrystal and Jordan are to be avoided in the future, serious consideration needs to be given to how these challenges are met, and today’s judgment should be the beginning rather than the end of that conversation.


Dr Seán  Ó Conaill

Twitter @soconaill

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