Article 15.10 of the Constitution provides that each House of the Oireachtas has the power to make its own rules. Article 15.12 provides that all official reports and publications of either House, as well as utterances made in either House wherever published, shall be privileged. Article 15.13 provides, inter alia, that Members 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. The Committees of the House of the Oireachtas (Privilege and Procedure) Act, 1976, makes provision similar to Article 15.13 of the Constitution regarding utterances of Members of the Oireachtas at committee hearings — this means that no action can be taken against them outside the Oireachtas no matter what they say. The Houses of the Oireachtas are sovereign under the Constitution and are entitled to legislate and discuss matters of national policy and public importance.
While the application of the sub judice rule has its own merits in ensuring that the judicial process is not encroached upon, or a case prejudiced to the extent that it could lead subsequently to a mistrial, it is obviously widely accepted in the House that the rule as applied heretofore was too blunt an instrument which leant too far in restricting comment whenever there were court proceedings in existence to the detriment of debate of national issues in the Dáil. Over time this had a disproportionate effect on Dáil proceedings and prevented the House from discussing matters of real public concern. The convention of the sub judice rule must be considered against the background of the inherent right and duty of the House to debate any matter considered to be in the public interest. This House will, of course, retain the right to relax the application of the rule further should the occasion demand. The operation of the rule has always been subject to the right of the Dáil to legislate on any matter. Indeed on two occasions previously, for the debates on the Greencore Report and the Cavan rape case, the convention was set aside. In view of the primacy attached to motions of no confidence the application of the rule has also been relaxed in such motions in November of last year and October 1991.
The application of the rule or convention of sub judice, meaning “in course of trial” was a self-regulatory power to restrict debate in the House. By convention for almost 70 years the Dáil has imposed upon itself the voluntary restraint of the sub judice rule in the general desire to avoid the risk of prejudicing judicial proceedings. The risk of prejudice occurs when comment in the Dáil might influence a jury or prejudice the position of parties or witnesses or otherwise prejudice proceedings. On 22 October 1986 the then Ceann Comhairle gave the following description of the sub judice rule:
The purpose of the sub judice rule, which has operated in this House for over 60 years, is to protect litigants, plaintiffs and defendants and ensure that actions coming before the courts are not prejudiced by being discussed in this House which enjoys absolute privilege. If the rule were to be ignored and the House used as a sort of pre trial forum or as an alternative for other court procedures — I have in mind interrogatories and discovery — in my opinion it would undermine our system of justice, bring about unfair judgments, and influences unfairly tribunals, judges and juries.
On Thursday, 8 April 1993 the House passed the following motion:
Subject always to the right of Dáil Éireann to legislate on any matter (and the guidelines drawn up by the Committee on Procedure and Privileges from time to time), and unless otherwise precluded under Standing Orders, a Member should not be prevented from raising in the House any matter of general public importance, even where court proceedings have been initiated:
Provided that:
1. the matter raised must be clearly related to public policy;
2. a matter may not be raised where it relates to a case where notice has been served, that is to be heard before a jury or is then being heard before a jury;
3. a matter should not be raised in such an overt manner so that it appears to be an attempt by the Oireachtas to encroach on the functions of the courts or judicial tribunals;
4. Members may only raise matters in a substantive manner, that is by way of Parliamentary Question, debate on the adjournment and, Motion and so forth where due notice is required; and
5. when permission to raise a matter has been granted, there continues to be an onus on Members to avoid, if at all possible, comment which might in effect prejudice the outcome of the proceedings.
This motion is an attempt to ensure that a fair balance is achieved between the inherent right of the Oireachtas to inquire into and debate matters of public importance, on the one hand, and the need to ensure that any such debate should not prejudice proceedings before the courts, on the other hand. It will open up debate on matters of public concern particularly where so called "gagging writs" were utilised in the past. In effect the intention of the conditions is to strike a better balance in that the benefit of the sub judice rule in the past will be maintained while at the same time allowing matters of public concern to be debated.
There is an element of risk involved in that there can be no guarantee that comments will not be made which may be subsequently regarded as being prejudicial or as interfering with the courts. The onus of responsibility in this new found freedom of debate rests with the individual Deputy. No guidelines or conditions of themselves can afford the same protection that operated heretofore.
It is important that the Chair should not be placed in a position which requires him to make instant rulings during the course of a debate on the admissibility or otherwise of matters sub judice. The Chair should have adequate opportunity to become aware that a matter to be raised is relevant within the context of the motion and to decide whether or not the matter is of general public importance. The long standing ruling of the Chair that “Members of the Judiciary are independent by virtue of the Constitution and they may neither be criticised nor have their rullings referred to in the House except on a substantive Motion” shall continue to apply.
It became clear during the recent debate on Dáil reform when the issue of the sub judice rule was discussed that there is a divergence of opinion on how far debate on matters sub judice should be restricted. It would be laudable, in my opinion, if the Dáil would not silence itself on issues freely spoken about outside the House. Furthermore, the mere issue of a writ should not be allowed to stop discussion in this House. We must be conscious, of course, of the fact that untrue allegations made under privilege in the House against non-members or organisations cannot be challenged in the courts.
Freedom of speech is a fundamental right without which Members would not be able to carry out their duties. Members must be able to speak the truth without fear of retribution. Imposed on this freedom are the constraints outlined in the motion passed by the House; these conditions have been put in place for the simple purpose of ensuring, in so far as they can, that proceedings before a court are not prejudiced by comment in the House which might influence a jury or prejudice the position of parties and witnesses. The Constitution confers specific functions on the courts and the principle of the separation of powers enshrined in the Constitution must be observed. The motion recognises that the courts are the proper place to judge alleged breaches of the law or claims by one citizen against another and the restraints are being adopted out of a respect by this House for the judicial process, the democratic rule of law and the proper upholding of our laws by fair trial proceedings.
It has to be acknowledged that the relaxation of the application of the sub judice rule has been long sought by the Opposition of the day as it inevitably allows a greater number of issues to be raised, which is the modus operandi of Opposition generally. However, with the new found freedom to raise matters which were sub judice, there is an onus on Members to be responsible in their remarks and to avoid the temptation of reacting to the emotional clamour that often surrounds controversial cases before the courts.