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An Interesting Case of Dail privilege

12.21.2005

Politicians are proficient at two things, I find.
1) Sounding knowledgeable about a subject that they know nothing about and
2) Sounding shrill at any attempt to force them to do something.

So it was yesterday when the ruling came down in the case of Brendan Howlin -v- The Morris Tribunal. Mr Howlin and his party leader are talking big talk about the state of our democracy and trust in our TDs following the Supreme Court ruling which forced Deputy Howlin to reveal his sources to the Morris Tribunal, those sources that talked of the inital Garda Corruption which exploded in recent years.

There are a few things that occurred to me while looking at some stuff on this. Firstly, I wondered if any of the citizens of this state should be entitled to some protection for whistle-blowing. I mean that strictly in terms of reporting it to TDs and perahps other select State officials. Is there a moral case for the right of a citizen to privately testify to a TD, information which is both sensitive and may put them in danger?

Does the citizen of a republic incur the risk of making allegations or do they make it securely? There are arguments for both sides. Those who propose the protection of informants often cite either the imperative for getting this information out there so allegations can be dealt with coupled with arguments about the safety of the life of the individual in question should they come forward. There arguments are definitely salient and should not be ruled out completely, however anonymity affords a certain amount of secrecy and others would worry about the ability of people to make unfounded allegations which they will not be forced to stand over.

I too would worry about such a case emerging. It is clear so far that the most persuasive case to many would be the former where some form of privacy exists in a TD-Citizen relationship. However is that secrecy not as dangerous as the prospect of openness? Take the cases of Ray Burke, Ben Dunne et al., would there have been an argument for secrecy in such cases?

I am well disposed to the principle that those who come in confidence should be afforded such confidence, however, it is always plausible to argue that those who come forward run the risk of being forced to account in public, by offering evidence or otherwise.

Of course TDs argue that such privelege would be extended to whistleblowers only and as such should be supported. I again agree in principle. Still looking across the water to the whole Plame-gate saga regarding the secrecy of sources and right to privacy etc, there always comes a time in the process where an informant must emerge to support the cases. The Irish Times reports that Howlin expects the identity to emerge soon, since his telephone records can now be handed over to the tribunal. I wonder how much protection one can give to whistle blowers in terms of confidentiality before their evidence becomes necessitated in practice?

There are many ways around this of course and I am still unsure whether there should be legislation to protect confidentiality. Things like this have major abuse potential, leaving them alone also opens up the possibility of lack of trust in a TD-Constituent relationship.

The liberty of an individual is important, also the process of justice is important. In this case the privacy of the individual comes into conflict with some form of social responsibility. The following is Pat Rabbitte's response to the judgement;



"The judgement clearly also has the potential to discourage ‘whistleblowers’ from approaching Dail Deputies with confidential information on matters of public importance. Unless action is taken to deal with the issues in the judgement by extending further the right of Deputies to protect sources of information, the relationship between members of the Dail and their constituents will be changed forever."


Clearly the current procedure is inadequete, there should be some protocol available to tribunals and TDs such that all are aware of rights and responsibilities under the law. Whistleblowers are generally exceptional circumstances, yet in the case of
Morris, the tribunal would not exist without them. So there is a need to resolve the dilemma between guaranteeing individual confidentiality and privelegeing the relationship between TD and citizen and the need for a fair and open process of deliberation in the spheres of Justice and Government. Its a dilly of a pickle, hopefully Il return to it soon and unpack it some more.

RR
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  1. Blogger Simon | 7:57 p.m. |  

    ya it will deter people from coming foward.

  2. Blogger Cian | 12:16 a.m. |  

    That may be, but is it possible or feasible to guarantee confidentiality for whistleblowers?
    It seems inevitable that at some stage their identity will emerge, through due process.
    Im just wondering if it is possible to achieve in practice what seems so correct in principle
    RR

  3. Anonymous copernicus | 2:46 p.m. |  

    It seems strange that Howlin couln't have argued that the Whistleblower had qualified privilege rather than the Dáil privilege on which Howlin relied. Maybe he couldn't on the habeas corpus principle. If I were the whistleblower, I would seek an injunction on those grounds and argue qualified privilege - although I don't know if that can be done without revealing his/her identity.

    Presumably Howlin can't do the decent thing and stand in contempt if what are sought are phone records the release of which is not his to control once the court order has been made.

  4. Blogger Cian | 1:50 a.m. |  

    Well my basic point is that the talk will be hard to match in terms of guaranteeing anonymity to a whistle blower while seeing justice done. The identity of a whistleblower cannot be kept anonymous ad infinitum while the case continues.

    I doubt howlin will be able to withhold though he certainly would if he got the opportunity. Which would be correct in my view, i broadly have concern about the ability to kepp the identity quiet.RR

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