Privilege Checking

The recent minor scandals surrounding TDs and driving offences has shed some light on an often neglected provision of our Constitution, Article 15.13, which relates to the immunity from arrest of members of the Oireachtas.

The article is a hold-over from the Free State Constitution, where it appeared in exactly the same words. This in turn was carried over from the less formal privilege from arrest applying to the Westminster parliament. Similar immunity provisions apply in many other countries, and their purpose is clear, to protect elected representatives from molestation or interference by the powers of the state or others in their ability to speak and vote in parliament.

There is literally no case-law on the article, as it could only come before the court in circumstances where a member of the Oireachtas cited it as a defence in criminal proceedings, arguing that his arrest was contrary to its provisions. That has not happened, and may never. Because of this lack of consideration of Article 15.13 by the courts, there is unsurprisingly little scholarly analysis of it either. In fact, most of the leading Constitutional Law tomes don’t even mention it. We are left, therefore with only the text itself to provide a clue as to the scope and meaning of the Article.

The article states:

The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

The latter part of the article has been the subject of a good deal of consideration. It deals with the privilege attaching to statements made in the Oireachtas from suits in defamation or other external limits. The first part, as I’ve said, has been largely neglected. On a straightforward reading, though, it seems to provide for a blanket immunity from arrest. No mention is made of whether the Oireachtas needs to be in session for the privilege to apply, not is there any limitation of the meaning of “the precincts of” the Houses of the Oireachtas. “Going to and returning from” is not defined either. Perhaps the trip back to one’s constituency several days after the Oireachtas has closed for the summer would qualify. Certainly, there is nothing to say that a TD is not within his rights to invoke the article when threatened with arrest for a traffic offence, even including drunk driving. In fact, given that most travel is now by car, it would be an absurdity if an article intended to prevent legislators from being improperly detained en route to Oireachtas business were to exclude traffic offenses. The privilege however, is from arrest only. A Garda is perfectly within his rights to ask a TD to blow into a breathalyzer, and is within his rights to charge him for failure to do so. The only thing he cannot do is arrest him.

It is an embarrassment when a provision that was intended to prevent the institutions of democracy from despotism is invoked most often in discussions of bad or drunk driving. Even TDs know this, and if not loath to rely on the provision, are loath to admit to doing so. Recently, the Sunday Independent reported that Leo Varadkar, as Minister for Transport, was planning to stamp down on inappropriate use of the provision. I stated at the time – employing the dubious term “un-stamp-down-upon-able” – that this was not possible; one might disapprove of certain uses of Article 15.13, but this does not make them “inappropriate”, and in any case, the article can’t be modified or abolished without a referendum.

However, I may have been too hasty in this conclusion. Returning to the text again, the article is explicitly stated not to apply to arrests for treason, breach of the peace, or felony. Treason and breach of the peace are well defined. The felony/misdemeanour distinction was always fuzzy, and in any case no longer exists, having been abolished by the Criminal Law Act, 1997. This abolition would have had the effect of making the privilege from arrest even broader, as no offence would be a felony, and therefore one of three exceptions to the privilege would have been abolished. Mindful of this, the then government included a provision stating that

“For the purpose of Article 15.13 of the Constitution and for that purpose only, offences which were felonies immediately before the commencement of this Act shall continue to be treated as felonies”

So, the only people remaining in Ireland who can commit a felony are members of the Oireachtas. Perhaps this is apt. But this provision, were it to be turned on its head, provides an easy means to abolishing the privilege. If the provision were to be amended to state that all criminal offences are to be considered felonies for the purpose of Article 15.13, then the privilege no longer applies to any kind of arrest.

Is it a good idea? Maybe not. There have been governments in Ireland’s past who I would not trust not to have political opponents arrested on their way to narrow votes. There’s no reason to believe we won’t have such governments again. Maybe this is one of those archaic provisions that it’s worth hanging on to.

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