The High Court recently decided that opinions expressed by members of the Dail Public Accounts Committee attract absolute privilege and are protected by the Constitution from judicial interference, even in circumstances where these opinions may be damaging to a person's reputation. The decision was based on the high profile case of Angela Kerins v McGuinness.
Ms Kerins brought an action for damages against the Public Accounts Committee ("PAC") on the nature of her questioning by some of PAC's members when she appeared before the Committee. Ultimately, while the High Court was highly critical of some of the questions asked of Ms Kerins, and agreed that they were "extremely" damaging to her reputation both personally and professionally, it held that her action must fail.
The voluntary appearance before PAC in February 2014 by Ms Kerins was to discuss payments made by state and semi-state bodies to the Rehab Group, of which she was CEO. During her appearance, Ms Kerins was questioned on a wide range of issues, many of which were not notified to her in advance, and which Ms Kerins claimed were outside PAC's authority and extremely damaging to her reputation.
Ms Kerins issued proceedings in the High Court seeking a declaration that PAC's activities were unlawful and also seeking damages.
The High Court held that, despite extensive submissions from all parties, the issues to be resolved were relatively net. In summary, Ms Kerins' case was that PAC, in treating her as it did, had acted outside its authority.
The Court was of the opinion that, while the questions and comments made by certain members were unfair and without notice to Ms Kerins, they were merely "utterances" within the meaning of Article 15.13 of the Constitution and therefore attracted absolute privilege for defamation purposes, and non-justiciability before the courts generally. The Court found that these were clearly just expressions of opinion by the members of PAC devoid of any legal force, and since they were no more than opinions the Court had no authority to interfere.
The Court stated that PAC had no adjudicative function nor did it purport to make any findings of fact in relation to Ms Kerins. The Court also noted that Ms Kerins was under no legal compulsion to attend before the Committee, to answer questions or to remain. Therefore, the Court decided that the issue of whether PAC had the authority to ask such questions of Ms Kerins did not arise.
The Court did, however, indicate that had PAC been granted compellability powers to force Ms Kerins to attend, then the situation would have been significantly different.
The Court's justification for its decision was that if members of parliament were constrained in their speech in the manner contended for by Ms Kerins, the effective functioning of parliament would be impaired in a manner expressly forbidden in "absolute terms" by the Constitution.
It seems implicit in the Court's judgment that were a person obliged to attend before PAC as a matter of law, where a refusal could incur a legal sanction, the Court's powers to interfere would be engaged, and the Court could then intervene if it believed that PAC was acting outside of its remit.
Any person invited to appear as a witness before an Oireachtas Committee should carefully consider their position. If they appear voluntarily they may forego many of their constitutional rights; including their right to the protection and vindication of their good name.
Oireachtas Committees are still obliged to afford fair procedures and uphold a citizen’s constitutional rights where they invoke their powers of investigation/compellability.