Bertie Ahern (Dublin Central, Fianna Fail)

On the first question of whether I have misled the Dáil, the Mahon tribunal or the Revenue, "No" is the answer. On the utterances I have made here in the House and on the issue of confidence, I have no difficulty in reconciling my support for the Government's motion expressing confidence in the Mahon tribunal and my decision to seek a judicial review on certain procedural issues. On the issue of my legal advice and the drafting of motions, it would be totally inappropriate for me to list this.

I have clear legal advice from my legal team that it would not be correct for me as a Deputy and as Taoiseach to answer questions on statements I have made in the Dáil. It is a separation of powers issue and one of constitutional importance. As Taoiseach I cannot and will not ignore it.

I have no problems in answering questions about the numerous statements that I have made outside the Dáil on these matters or the extensive correspondence I have had with the tribunal on them. I have done so, not just here in the Dáil, but in the tribunal and the media in the wider public domain.

The substance of everything I have said in the Dáil has been repeated outside of it. I have dealt with any questions arising from those statements. I have no problem with anything I have said in the Dáil. I have heard some speculate that I am trying to conceal or hide something I said. That is nonsense. Everyone has access to the Dáil record. They can read it, if they wish, and make up their minds. For the record, I stand over everything I have said in the House.

The point in this case is that my legal team has told me that as a Deputy and a constitutional officer, I may be in conflict with the provisions of the Constitution by submitting myself to questions on my Dáil statements. The point has been made to the tribunal and the courts will now adjudicate on the matter.

My advice is as follows. Article 15.13 provides that Members of the Dáil "shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself." This also applies to the Seanad. It is the duty of each Member of the Dáil and Seanad to uphold this constitutional provision that is fundamentally based on the separation of powers. No court or tribunal can examine or challenge a Member of the Dáil on his or her utterances in the Dáil. It is not permissible to cross-examine a Member on statements in the Dáil either in court or before any tribunal. The Attorney General v. Hamilton and Howlin v. Morris are clear examples of the many cases in which Members of the Dáil have sought to uphold Dáil privilege before the courts in respect of actions and tribunals. Questions posed of a Taoiseach must be treated in exactly the same way. There is arguably a greater duty for the Taoiseach, as Head of Government, to ensure the Constitution is complied with. The only way in which this fundamental constitutional principle can be vindicated is by way of legal proceedings before the courts. No other mechanism exists for its resolution. Such proceedings raise an issue of significant constitutional importance and will seek to uphold the status of parliamentary privilege which has existed for imperative legal reasons since the foundation of the State. That is the basis of the advice I received.

I always listen carefully to what Deputy Kenny says outside the Dáil. Eminent legal people have advised me that the tribunal is required as a matter of law to conduct its hearing in a manner which respects legal rights. I am entitled to assert and rely upon those legal rights. Other Deputies have done so in the past; the records are full of such cases where they have asserted the same privilege. It is vital for the Houses of the Oireachtas that this constitutional privilege is respected.

If citizens were not able to keep confidential their preparations for a legal hearing or communication with a witness, then legal representation would be seriously impaired. No tribunal in the past has ever questioned a person's right to this legal professional privilege.

I made this case in writing to the tribunal. I thought I could have avoided this course of action and the tribunal would recognise the precedence and arguments made by legal team. The tribunal did not do so. Yesterday was the final day and I had to take the advice I was given. I stand by it. It has nothing to do with answering questions.

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