Mr. Gearóid Murphy:

Go raibh maith agat. My submission concerns the personal legal liability of councillors in the performance of our duties as public representatives. As I speak, I am conscious of speaking with the benefit of absolute privilege conferred upon me as a witness before this committee by section 17 of the Defamation Act 2009. This is the first time outside of my professional work as a barrister where I have spoken with absolute privilege despite being a member of a local authority for almost seven years. During this time, I have sat in hundreds of meetings where I have discussed and voted on matters of public importance, including the most recent county development plan; several revenue and capital budgets, which allocated billions of euro of public money; a nomination vote for candidates aspiring to the Presidency of Ireland; and the council's performance on important public matters, such as housing and the environment. However, in none of those meetings was I afforded absolute privilege, as Oireachtas Members are and as I have been here today.

At present, there is no stand-alone privilege recognised in statute as specifically applying to elected members of local authorities in the carrying out of our duties, not even under qualified privilege which is far more restricted than absolute privilege. This is despite the similarities between the duties of councillors and those of Oireachtas Members. It is to be recognised that defamation involves a balance of rights between the claimant's right to a good name and the defendant's right to free speech. However, public representatives are a unique case as we have a democratic mandate and a duty to hold public bodies and officeholders to account and to highlight and debate matters of public interest. In the case of Oireachtas Members, legislation has recognised the importance of ensuring that public representatives are not hindered from this duty by fears of personal financial ruin if they are sued based on an utterance in the chamber. However, for local authority members, this imperative has not yet been recognised in statute.

The possibility of a councillor being sued based on his or her contributions in debate is not some abstract concept. For example, in 2018, at one of the local authority meetings convened for the purposes of considering nominations to the Presidency, in response to questioning by a councillor it was reported by the Irish Examiner that one of the candidates had accused that councillor of libel. According to the same report, the candidate then stated, "I have gone to the High Court before. I hope you are protected by privilege." It is self-evident that this sort of dialogue would have a chilling effect on debate unless the participants are indeed protected by absolute privilege. It is equally clear that nominations for the Presidency, the highest office in the land, are of the utmost public interest and those who decide on this need to be free to rigorously and robustly question candidates. I would recommend that the Oireachtas consider extending the defence of absolute privilege to statements made by councillors during meetings of their local authorities and associated committee. This would recognise the special nature of our duties with regard to holding public bodies and public officeholders to account.