A week is a long time in politics.
So said the British Labour prime minister Harold Wilson in the mid-'60s and Independent Senator, Sharon Keogan, must surely agree.
Last week Ms Keogan was ejected from an Oireachtas Committee meeting examining the Irish laws surrounding surrogacy for what some committee members termed her “bigoted, cold cruel comments”.
Afterward, at a private meeting on Wednesday, her attempt to elicit an apology from fellow committee members Senator Lynn Ruane and acting chair Sinn Féin TD Kathleen Funchion for their characterisation of her remarks failed.
Ms Keogan has subsequently resigned from the separate Oireachtas Committee on Children citing an“unsafe working environment”, although she remains on the surrogacy committee.
During the committee meeting on surrogacy, Ms Keogan expressed the view that surrogacy was “harmful, exploitative, and unethical” and “not in the best interest of the child”.
Ms Keogan also told Gearoid Kenny Moore, a representative for Irish Gay Dads, that he was “extremely lucky to be here today”.
Unsurprisingly, this elicited a reaction from both witnesses who were giving what was undoubtedly very personal testimony on their surrogacy experiences and from committee members.
Senator Lynn Ruane asked Ms Keogan to check her “Christian values”.
Elaine Cohalan, Chairperson of the Assisted Human Reproduction Coalition, said that committee members had a responsibility to lead the debate in a “dignified manner”.
Ms Keogan has alleged that during the course of the private meeting of the committee she was warned that the witnesses could sue her under privilege for her remarks.
Commenting on the matter inUna Mullally posed the question as to what processes are in place to sanction senators when they “go too far” in our political chambers.
An answer to Mullaly’s question is that the principle of freedom of speech in parliament enshrined in our Constitution allows TDs and Senators to bang on more or less as they wish with the odd instance of them being put on the naughty step.
Article 15.12 of the Constitution lays down that “all official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged”.
The rationale for this is to allow members of parliament to function independently and to prevent outside influence from interfering in the business of the houses.
There is a slight curb on this right: Article 15.13 of the Constitution says that members of the Dail and Seanad “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”.
In plain English, this means that members of the houses are above the defamation law that Joe or Josephine Public is subject to.
The logic of keeping the courts out of what is said in the houses may be said to be a part of the checks and balances which underpin the doctrine of the separation of powers which says that the legislative, executive, and judicial branches of government should be separate and which is a cornerstone of our democratic system.
However, TDs and senators can be amenable or answerable to the House itself.
Without getting bogged down in long-winded legalese, basically TDs or senators can be answerable to the Committee on Privilege and Procedure (CPP) for abusing their parliamentary privilege if what they say is defamatory.
Members can defend themselves by proving that their utterances were made in a responsible manner, that they acted in good faith, and ensured as much as possible that the remarks were soundly based.
Members can also be asked to withdraw their utterances or can be reprimanded.
None of this seems to cover Ms Keogan’s remarks which while potentially hurtful, offensive, and repellent to some cannot be said to be defamatory.
During the course of what must have been a lively Oireachtas committee meeting, Ms Keogan said that “committees are a place for debate”.
Two days ago, Ms Keogan tweeted her thanks to those who have supported her right to free speech online or by writing letters irrespective of their own personal views.
I find myself in the unusual position of agreeing with Senator Keogan on this sole point of free speech.
Last Saturday, in this paper Daniel McConnell, while seeming to disagree with the senator’s remarks made the case that being offended is the price we pay for living in a free society.
He quoted Voltaire’s biographer who said “I disapprove of what you say, but I will defend to the death your right to say it”.
Mr McConnell concluded that while Ms Keogan may have been offensive, insensitive, and crass she had a right to air her views however unpalatable.
And that by accusing Ms Keogan of bigotry, Senator Lynn Ruane and others personalised the issue thereby betraying the liberalism that they proclaim to extol.
Ms Mullaly writes that “Keogan frequently adopts the ‘just asking questions’ stance, an obfuscating tactic that can be broadly seen as attempting to amplify or drop in poor information, misinformation or disinformation”.
Her point is that sometimes questions are insincere and are simply mechanisms to sow misinformation and distrust among the public, and in this, she may be said to be correct.
But she questions if people should be able to say whatever they want within our political chambers “even if it’s tinged with conspiracy, misinformation or disinformation”.
The aforementioned opposing views when deconstructed could be said to echo the culture wars currently raging.
To be reductive about a complicated topic you have the right to freedom of speech in one corner slugging it out with the right not to be offended in the other.
The right not to be offended is a cultural construct rather than an actual right enshrined in law.
In a week when Elon Musk moved to buy Twitter, free speech is continuing to feel as if it has been hijacked by the super-wealthy and powerful so that money rather than truth is winning.
Regardless of where you land on this (there are opposing teams in my own family on this topic) it should be remembered that the particular context here is what TDs and senators can and cannot say while discharging their parliamentary duties.
Assuming that it was even legally possible to censor their utterances I strongly think we should be slow to do so; as mentioned above there is a solid logic behind parliamentary privilege.
It is for this reason that it is widely recognised in laws in democratic countries right across the world and has been robustly upheld by our Supreme Court in a slew of cases.
Also, not to be too Socratic about it the question posed by Mullally of what should we do when senators “go too far” seems to raise two further equally important questions, what constitutes going too far, and who gets to define what this constitutes?
While I wholeheartedly agree with Ms Mullally on the fearmongering amongst the right-wing Christian fundamentalists weaponised against the LGBT community (she makes an excellent point about “the idea that minorities or marginalised groups are involved in takeovers of society” being “a diverse conspiracy theory”) I don’t think our political chambers is the place to censor views.
Driving real agendas underground by way of sanctions on utterances that have been deemed to be unsayable is not to be welcomed and will never result in the changing of hearts or minds.
It will simply result in an authoritarian Kafkaesque society where we say one thing and think another which strikes me as unhealthy and undesirable.
This week the topic of asking questions appears to be in the ether. In last Saturday’s, Romila Thapar, the 90-year-old eminent Indian historian, when asked a question on what she would like her legacy to be said, “I would like there to be a generation that goes on asking questions… Asking those questions freely and exploring the answers to those questions in a free manner. That is what I would want… Any society which gets to the point where they’re not allowed to ask questions, it’s a desperate situation."
- Sarah Harte is a writer and qualified solicitor