Re: The Committee of Public Accounts
I am told that this opinion is requested by persons who are not lawyers, so an effort must be made to keep it simple.
There is a distinction in law between absolute and qualified privilege Where a person is protected by absolute privilege in any circumstances he can say anything however reckless or defamatory e.g. he could call another person a thief or a murderer without any evidence or without the slightest belief in its truth.
Qualified privilege arises in certain circumstances the principal being:—
(a) Statements made by a defendant in the discharge of a public or private duty.
(b) Statements made on a subject matter in which both the defendant and the person to whom the statements are made have a legitimate common interest.
Qualified privilege can only be defeated if the plaintiff can prove that the defendant was not using the occasion honestly for the purpose for which the law gave it to him but was actuated by some indirect motive not connected with the privilege e.g. malice in the popular acceptation of the term.
Under Article 15 (12) and (13) of the Constitution official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged. The privilege conferred is absolute.
I am asked if similar privilege attaches to:—
1. The utterances of the members of the Committee of Public Accounts in the Committee.
2. The utterances of persons sent for by the Committee and made to the Committee.
3. The documents of the Committee prior to an order of the Dáil that they be laid before it.
4. Any papers or records sent to the Committee at its request or at the volition of any person prior to order of the Dáil that they be laid before it.
None of the foregoing could be classed as “utterances made in either House” nor could they be classed as “official reports or publications of the Oireachtas or of either House.” However one strained the language of the Article it could not be said to extend absolute privilege to any of these matters.
We must now look outside the Constitution to see if ordinary substantive law would grant relief.
In Goffin v. Donnelly (1881) 6 Q. B. P. 307 a defendant in a slander action pleaded that the statements complained of were part of the evidence given by him in the character of a witness before a Select Committee of the House of Commons. It was held that the statements were protected by absolute privilege. In the course of his judgment Field, J. stated:—
“It may be a hardship on individuals that statements of a defamatory nature should be made concerning them, but the interests of the individual are subordinated by the law to a higher interest, viz., that of public justice, to the administration of which it is necessary that witnesses should be free to give their evidence without fear of consequences”.
This decision is cited with approval in the modern text books and I see no reason why it should not be followed in this country. The article in the Constitution ought not, in my opinion, be held to be comprehensive. I think, therefore, that on the reasoning of the decision, the four matters referred to me would be covered by absolute privilege.
Even if I were wrong in this, qualified privilege would clearly apply provided, of course, that the utterances or statements in documents or other papers were relevant to the purpose for which the Committee was set up and were not actuated by malice or some indirect motive not connected with the privilege.