Kerins v McGuinness & Ors [2019] IESC 42

Author: Sara O'Sullivan, Colm Reddan and Sinéad Taaffe

August 28, 2019

The Supreme Court has held that the Dáil Public Accounts Committee (“PAC”) acted unlawfully in its treatment of the former Chief Executive Officer of Rehab, Ms Angela Kerins when she appeared before the PAC in February 2014.

Background

In 2014, the then Chief Executive Officer of the Rehab Group (“Rehab”) Ms Angela Kerins, voluntarily appeared before the PAC to answer questions put to her, in relation to public monies received by Rehab. When Ms Kerins appeared before the PAC she was in fact quizzed extensively on her own position at Rehab in a manner which the High Court later described as “damaging to her reputation personally and professionally”. Ms Kerins refused to attend a further hearing before the PAC on the grounds of ill-health and the PAC applied to the Committee on Procedures and Privileges pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 to compel Ms Kerins to attend before them.  The Committee on Procedures and Privileges (“CPP”) refused the request on grounds that the proposed investigation of Rehab and Ms Kerins by the PAC was ultra vires.

The High Court Judgment, 31 January 2017

In 2017, Ms Kerins brought proceedings against the PAC before the High Court seeking damages and injunctive and declaratory reliefs in respect of the manner in which public hearings were conducted by the PAC. Ms Kerins alleged that the two hearings conducted by the PAC in 2014, amounted to a “witch hunt” against her. The High Court refused to consider Ms Kerins’ application on the basis of the immunities afforded to the Oireachtas by Article 15 of the Constitution. The High Court noted that “the Courts exercise no function in relation to speech in parliament”.

A full copy of the High Court Judgment can be viewed here.

Judgment of the Supreme Court, 27 February 2019

Ms Kerins appealed the decision of the High Court to the Supreme Court (“the Court”). As the appeal was seen as a matter of public importance, it bypassed the Court of Appeal.

The Court, held that the Constitution did not prevent the Courts from at least considering Ms Kerins’ case. The Court held that there is no “absolute barrier” to bringing proceedings concerning the actions of a Committee of the Houses of the Oireachtas and held that it had the power to declare that PAC’s actions were unlawful.

The Court held that it was in a good position to form a judgment on the facts of the case as it involved consideration of transcripts and recordings together with documentation. The Court indicated that it would “direct further submissions on whether it is appropriate to characterise the actions of the PAC as a whole as having been in significant breach of the basis of the invitation issued to Ms. Kerins”.

The Court came to the following conclusions:

  1. That a committee of the houses of the Oireachtas hold the same constitutional privileges and immunities as the Oireachtas itself.
  2. A Court can consider evidence of what was said at a meeting of a committee, similar to PAC, to determine what actions the committee was engaged in.
  3. Article 15 of the Constitution confers a wide scope of privilege and immunity on the Houses and their committees. However, this does not provide an absolute barrier in the bringing of proceedings but that there must be certain criteria in place to bring about proceedings.
  4. The Court concluded that the Dáil, can be the appropriate defendant in proceedings concerning the conduct of a committee who is carrying out its constitutional function.
  5. The Court emphasised that before a Court can intervene, what needs to be assessed is the actions of a committee as a whole and not individual utterances.
  6. The Court concluded that “it would not be a breach of the separation of powers for the Court to declare the actions of the PAC unlawful in the light of the fact that the PAC was acting outside its terms of reference.” But the court stated that it required submissions from the parties as to whether it is appropriate to characterise the actions of the PAC as a whole as having breached their duty to treat Ms. Kerins fairly in respect of the boundaries of its terms of the invitation issued to her.
  7. The Court made clear that if the issues regarding the proper parties to the proceedings and the factual question were determined in favour of Ms.Kerins, the Court will make a declaration that PAC had acted unlawfully.

The two matters left over for consideration which were determined on 29 May 2019 were:

  1. Question of whether it would be appropriate to join the institution of the Dáil as a defendant to the proceedings; and
  2. Question of whether it can be said that the actions of the PAC, looked at as a whole, can be said to have been unlawful.

A full copy of the judgement can be seen here.

Judgment of the Supreme Court, 29 May 2019

First Matter

The Court ultimately made an order substituting the Dáil for individual members of the PAC. The Court noted that the legal representatives for the PAC indicated that “there was no objection to the Dáil as an institution being joined as a defendant in these proceedings” alongside the Attorney General and Ireland. The Court noted that it was unusual for a party to be joined to proceedings after a substantive judgment but was minded to grant the order in circumstances where no objection was made. The Court also made it clear in the judgment that “the fact that a House or the Houses of the Oireachtas can and should be joined as the defendant in proceedings such as this…does not alter the justiciability of any particular claim”.

Second Matter

The Court ultimately granted a declaration in the following terms:

…by conducting a public hearing in a manner which was significantly outside of its terms of reference and which also departed significantly from the terms of an invitation by virtue of which a citizen was requested to attend, the Public Accounts Committee of Dáil Éireann acted unlawfully”.

In granting this declaration, the Court was critical of the fact that “a citizen had been invited to attend on one basis” but the hearing had been “conducted on a significantly different basis”.

The Court stated that the invitation issued to Ms Kerins suggested that the PAC wanted Ms Kerins to set out on behalf of the Rehab Group “the outturn and outcome achieved as a result of State funding”. The Court said that any recipient of such invitation would be of the view that “the purposes of the invitation was to ask the relevant officers of the Rehab Group…to deal with questions about what benefit the State was obtaining by way of positive outcomes from the expenditure specifically referred to in the invitation letter”. It was evident to the Court that the members of the PAC posed questions to Ms Kerins outside the scope of the invitation and outlined that questions in relation to “the age of her company car, could not reasonably be said to come within the terms of the invitation” and equally that although the details of Ms Kerins salary came within the scope of the invitation, “salaries of other members of Rehab” did not come within the scope of the written invitation issued to Ms Kerins.

Although the Court noted that only three members of the PAC had deviated from the terms of the invitation to Ms Kerins, including the Chair of the PAC, the Court was satisfied that the PAC had acted as a whole given that “the Chair did not seek to prevent any line of questioning and no other member raised any issues of that type”.  This analysis meant that the Court could find that the PAC, rather than the three individual members, acted unlawfully.

Powers of the Oireachtas

In the judgment, the Court made specific reference to the powers of the Houses of the Oireachtas to “adjust those terms of reference in whatever way it considers appropriate”. The Court noted that while this power was subject to limitations, the “remit is very wide”.

The Court was explicitly critical of the fact that the matter was before the Courts as they stated that “much of the solution to all of these issued lies in the hands of the Oireachtas itself”.

The Court stated that “the terms of an invitation are formulated by the committee itself” and that “the terms of an invitation can … be altered provided that the alteration” is done in a timely manner and not at a stage where it might be viewed as in itself unfair.

Impact

This decision by the Court will have ramifications on the way public hearings are conducted by parliamentary committees in the future. The Supreme Court has effectively relayed the message to politicians and Oireachtas Committees that not only do they hold the power to set their own rules but they are also responsible for ensuring their observance. The Court has also determined that they have jurisdiction to adjudicate on the conduct of the Oireachtas Committees, like the PAC, when it is deemed appropriate.

A full copy of the judgement can be seen here.

 

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