Members’ Rights

Part of private members’ business – in the Northern Ireland Assembly at 6:00 pm on 3 March 2009.

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Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party 6:00, 3 March 2009

I want to say at the outset that the subject of the motion is a complex legal issue. I am not certain that this particular motion, no matter how well intentioned, addresses the issue, which is obviously very important. I suggest that the motion should not be put to a vote. Although the important issues should be aired and discussed, the motion should not be put to a vote in order that a more definitive position can arise from the debate.

Any privilege that Members of this House have is based on statute. No inherent privilege is based in this House; however, in the House of Commons, for example, an inherent privilege exists that does not arise out of statute. Therefore, the Assembly’s situation is completely different from that of the Houses of Parliament. However, all Members instinctively and naturally accept the need for elected representatives to be able to protect the confidentiality of information that is brought to them by constituents or, indeed, that comes from other sources.

The question is whether that protection of confident­iality should be absolute or qualified. If it is to be qualified, to what extent and in what circumstances? It goes without saying that it is important for public representatives to be able to pass on information that is in the public interest without breaching confidentiality. The question is whether such a right exists at present. I am not certain that it does, in fact, exist in law.

I appeal to the proposers of the motion to ask the House to seek legal opinion and expert advice on this important issue; I have not seen any sort of legal advice that could inform the House properly on the motion. I want to see the legal basis of any such right that Members purport exists for individual MLAs.

Certainly, in the Republic, such a right was asserted in the Brendan Howlin case. In circumstances that were similar to those that have been discussed in the debate, a TD was expected to reveal his confidential sources to a tribunal of inquiry. He refused to do so. In that case, the Supreme Court decided that the TD did not have a right to protect his source and, therefore, he had to reveal it to the tribunal. That raises an important point: if a tribunal of inquiry is to carry out its work, it needs to be able to probe information and facts. That may require the disclosure of a source in order to provide proper and credible evidence to the inquiry so that it can carry out its task properly and thoroughly.

I do not believe that the law would be any different or much wider in Northern Ireland as regards giving an absolute right to a Member of this House. It is probably true to say that any erosion of the perceived right to confidentiality could undermine the public’s trust and confidence in dealing with MLAs, with the result that that trust and confidence could be affected adversely.

The Assembly must consider the matter very carefully before reaching specific conclusions. There have been circumstances in the House in which a Member has purported to have got information from the IRA — in the case of Conor Murphy, for example — about a killing in south Armagh.

In those circumstances, is it right for a Member of the House —