Is Satire Constitutional?

Simon recently queried the use of broadcasts of Oireachtas proceedings for satirical use. There doesn’t seem to be any legal provision banning such a use, but the Dáil and Seanad’s own Standing Orders do explicitly give would-be satirists the hands-off. The question then is what power, if any, do the Standing Orders of the Houses of the Oireachtas have over those of us who are not members of either house? Certainly, a Standing Order does not have the force of law. It is literally a mere order of the house, albeit a “standing” (permanent) one. A piece of primary legislation must be passed by the Dáil and Seanad and signed by the President. The standing orders are passed only by the house which has adopted them, in exercise of their discretion to regulate their own affairs. This self-regulatory power on the part of the Dáil and Seanad has a root in the Constitution, and it is a discretion which is double-edged. Bunreacht Na hÉireann provides, at Article 15.10, that “Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.???

It is worth noting that the constitutional reference to the Houses’ powers to attach penalties for infringement of their rules does not make a distinction between members and non-members. In principle then, it seems that either house has the power to punish those who might use broadcast footage to make mock of them. Kelly’s Constitution certainly thinks so (see 4.2.133). But what sort of punishment is open to them? If a deputy contravenes the Standing Orders, he can be dealt with by suspension, or some other in-house remedy. Such punishments hold no fear for the rest of us.

Under Bunreacht Na hÉireann and the doctrine of separation of powers, only the courts may impose criminal penalties. This seems to leave the Houses of the Oireachtas somewhat stranded (again, Kelly at 4.2.133). While they have absolute discretion in how they order their business, they are constitutionally restrained by this same discretion from imposing meaningful punishments on anyone except their own members. The aspiring satirist, I submit, is safe from the wrath of the Houses of the Oireachtas and need fret only about his copyright status.

8 Comments

  • Adam says:

    From my (bare) understanding of Irish law, the answer to this question is “yes”, but I’ll ask it all the same…

    Can satire be used as a defence against a defamation case, or has it ever been used successfully in Ireland?
    Take, for example, a show like Brass Eye or The Day Today, which both packaged themselves as serious current affairs programming and which would make (IMO) potentially defamatory comments about certain people in the public eye.
    (One that springs to mind is when The Day Today claimed John Major had punched the queen, another is when Brass Eye made a faux “breaking news” piece about Noel Edmonds – I think – going berserk and shooting people before killing himself).
    If the same programme was made in Ireland, would there have been potential for a libel case, or can someone protect themselves through “fair comment” or something similar, as long as it is made apparent to a sane person that the show is not real?
    I mean, in the two above shows you may be fooled for a minute, but it’s so absurd it would be hard to watch any more than 5 minutes without realising the reality.

  • Fergal Crehan says:

    The anser is in fact “Dear God Nooooo!” So please do not publish that incendiary fake report about a prominent TD’s penchant for cannibalism.

    To avail of the Fair Comment defense, the statement must be comment (not assertion of fact), must be fair, and must be on a matter of public interest (the private life of a public figure is out of bounds in this regard). The defense is also lost where the person making a statement knows that it’s not true. The believability of such a story has very little bearing on it’s libellous nature either. A libel is a false statement of a type which would tend to lower the subject in the eyes of right thinking people. Note use of the words “of a type” – i.e. it’s not necessary to show that the statement actually did lower the subject in the eyes of others, or even that it was believed by anyone. Your only hope would be that the thing was so obviously a joke that the jury would find for you, or make a very small award against you.

  • copernicus says:

    But doesn’t recent European jurisprudence significantly reduce the duty of care owed to politicians by commentators, satirical or otherwise? (I guess we’ll never know unless we look it up in our lecture notes..)

    I also wonder if the Curtin case establishes a precedent whereby, were the Oireachtas to seek to penalise (perhaps not with criminal sanction but otherwise) a person outside the Houses for contravening standing orders, the Supreme Court might well put meat on the Constitutional bones by providing it with a prodcedure for doing so.

  • Fergal says:

    There’s some ECHR law to that effect alright. But the ECHR gives states a pretty wide margin to act within, so I wouldn’t pin too many hopes on it.

    I hadn’t thought of the Curtin element. But Curtin, as a judge, was punishable by way of impeachment. I can’t think of any meaningful punishment the Oireachtas could impose on an ordinary Joe Satirist. They have the power to impose one, but I just can’t think what it might be.

  • Simon McGarr says:

    The awesome weight of their disapproval?

  • copernicus says:

    My original comment closed with a line to the effect that I couldn’t think what such a sanction would be either, but I deleted it as the stuff of a further debate that I couldn’t really think of anything to say about.

    The European jurisprudence is in caselaw so it must impose limits on how states can now interpret their convention obligations.

  • Simon McGarr says:

    As far as the signatory states are concerned, an ECHR decision seems to be a stream of piss in the wind.

    It has moral weight, but that tends not to weigh as much as ‘I just want/don’t want to do that’.

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