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'Chilling effect': What could the Kerins case change about Dáil committees?

A significant judgement was handed down today against the “extraordinarily well-defended” privileges of the Oireachtas.

Former CEO of the Rehab group, Angela Kerins, arrives at the Four Courts (March 2018).
Former CEO of the Rehab group, Angela Kerins, arrives at the Four Courts (March 2018).
Image: Leah Farrell

WHAT WILL TODAY’S Supreme Court ruling mean for one of the Dáil’s most powerful committees, the Public Accounts Committee?

The Supreme Court ruled in favour of the former CEO of Rehab Angela Kerins when it said that the courts did have the power to intervene in issues related to Dáil hearings.

Kerins had sought damages from the State for distress, public humiliation and the loss of her career following her appearance before the Public Accounts Committee in February 2014. She resigned as CEO of Rehab on 2 April 2014. 

The case raises questions about the constitutional separation of powers that exists between the Dáil and the courts, and committees’ roles to hold figures to account.

It also deals with similar constitutional issues as O’Brien v Clerk of Dáil Éireann, where businessman Denis O’Brien is challenging Dáil privilege (a power that allows politicians to make comments in the Dáil that otherwise could be challenged as defamatory, for the benefit of the public’s interest).

What is the PAC?

The Public Accounts Committee, or PAC, focuses on “ensuring public services are run efficiently and achieve value for money”, according to the Oireachtas website.

The “powerful” Dáil committee is defined in Section 2 of the Houses of the Oireachtas as “the committee of Dáil Éireann established under the rules and standing orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General”.

But in recent times, it’s come under examination itself: it’s been accused of straying “significantly” from its remit, repeating the work of other Oireachtas committees and being used as a microphone for members to voice opinions on a particular topic.

In a recent interview, former HSE director general Tony O’Brien accused the PAC of “corroding public life with their antics” and not adding “any value”.

“What it does, is it chases every passing controversy, and pay no respect to individuals,” he told RTÉ’s Marian Finucane Show.

In 2011, 53% of the electorate voted in a referendum against increasing the powers of Oireachtas committees that would have given them the power to conduct more meaningful investigations. It had been argued that this could set up a second, separate justice system.

Within or outside its remit

Now, both the Oireachtas Committee on Procedures and Privileges and the Chief Justice Frank Clarke have come to the conclusion that the PAC had strayed from its remit in the Kerins case.

The judge also said that it might be possible to find that the PAC invited Kerins to attend the hearing on one basis, but questioned her on a different basis when she did attend.

The Rehab charity (which is going to be rebranded) receives funding from a number of sources – including the HSE, state agency Solas, and the Department of Justice and Equality under the Charitable Lotteries Scheme.

But it remains an independent entity operating in the private sector; Rehab was also not under the remit of the Comptroller and Auditor General, and was never audited by him.

In February 2014, Kerins was asked by the PAC to appear before it to ask her about:

  • Payments made by the HSE to Rehab under section 39 of the Health Act, 2004
  • The operation of the Charitable Lotteries Scheme and payments made to Rehab from the Vote of the Department of Justice and Equality
  • Payments made by Solas to Rehab for the provision of Specialist Vocational Training.

During the seven hours where Kerins appeared before the committee, Kerins was “accused of adopting double standards” and was told that she needed “to get a grip on herself”.

“It was described as ‘incredible’ that her solicitors should correspond with the PAC in advance to advise it of the extent of its remit,” the judgement quotes.

‘Chilling effect’

David Kenny, an Assistant Professor in Law at Trinity College Dublin told TheJournal.ie that he believes two things could happen as a result of this ruling: either there are more cases like the one taken by Kerins, and/or Dáil committees will become more cautious and conservative in how they conduct their business.

“The court will say it shouldn’t affect the PAC very much, that it’s simply holding it to the limits and the terms of reference it’s already under. So on that level it’s not a direct effect on PAC members’ conduct.”

But in practice there might be an effect, he adds.

“If a committee becomes open to judicial oversight… that committee might not try to call certain witnesses, tone down the questions they ask, request legal advice all the time – it could have a chilling effect that is slightly different from the direct legal effect.”

The reason this judgement is so significant is because Oireachtas privilege is “extraordinarily well-defended”, Kenny says, adding that judicial oversight into how a Dáil committee conducts itself “goes to the heart of its legislative power”.

The High Court gave a judgement that there would be no oversight, and now the Supreme Court has given a more nuanced judgement, saying that it won’t intervene very often or very readily.

It’s more likely that we’ll see more cases of this nature, which will clarify how exactly it will intervene.

“There’s concern that despite the court’s effort to balance their respect for the powers and privileges of the Oireachtas, there are problems drawing lines.

“The courts say that if you stay within your powers, there will probably be no intervention. But the fear is that if committees do get bogged down in litigation, it would restrict parliamentary speech… and could have a chilling effect in some respect.”

“We can’t yet tell what effect it will have,” he adds.

The case is due back in court in April.

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