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How relevant is the Kerins Supreme Court ruling to Oireachtas committees?

“We have to act within the law, whether we like it or not,” the chair of the Oireachtas Sports committee told his members this week.

THE KERINS RULING was referenced repeatedly during the Oireachtas Sports Committee in the much-anticipated questioning of FAI officials and its former CEO, John Delaney. 

But how relevant is the ruling to how Oireachtas committees operate, and will TDs and Senators question witnesses from now on in this “frustrating” way, as TD Ruth Coppinger put it?

So far, the Supreme Court has only ruled that the Public Accounts Committee (PAC) was “acting outside its terms of reference” in relation to its questioning of Angela Kerins, the former Rehab CEO. 

Kerins appeared before the PAC in 2014 after being invited to answer questions about payments by the HSE to Rehab, and other payment issues. During the seven hours where Kerins appeared before the committee, Kerins was asked about her salary, “accused of adopting double standards” and told that she needed “to get a grip on herself”.

Because of the finding that PAC strayed from its remit, the court ruled that “it would not be a breach of the separation of powers for the Court to declare the actions of the PAC unlawful”, meaning that the privileges of the Houses of the Oireachtas did not make it immune to the oversight of the Irish legal system, as it usually is.

When this ruling was given on 27 February, there was a concern at the time that this would have “a chilling effect” on how committees operate, “rather than a direct legal effect”. It was feared that committees would be overly cautious in their questioning, for fear of legal action that could spark from that.

On Monday this week, a seven-judge Supreme Court panel heard the arguments from legal representatives for Angela Kerins and the State on whether the PAC had acted “unlawfully”, and are currently weighing up those arguments.

On Wednesday, John Delaney read out a statement to the Sports Committee, in which he said that “in light of the recent Supreme Court ruling in the Kerins case”, that he would ask the committee to respect his decision not to comment on the €100,000 cheque, or his role as CEO of the FAI. Delaney is currently the association’s Executive Vice President, a newly created role.

So is the Kerins case relevant to the questioning of Delaney and the FAI?

“What’s interesting is, it wasn’t exactly clear what Delaney meant when he mentioned the Kerins ruling,” says David Kenny, an Assistant Professor in Law at Trinity College Dublin.

“But it seems like it’s not a million miles away from its remit. Sports Ireland, a public body associated with the FAI, and the issues that are related or that caused the withdrawal of Sports Ireland funding to the FAI. That seems to be within the remit.

As a voluntary witness, reliance on Kerins ruling seemed to suggest that the committee shouldn’t push any of those issues, which could have been effective.

Ahead of the sports committee session, its chair Fergus O’Dowd and the committee’s other members were given legal advice on what the remit of committees is.

In one exchange with Jonathan O’Brien – where the Sinn Féin TD asked whether Uefa funding is paid into the FAI’s main bank account in an attempt to shed light on why the FAI became short of money – O’Dowd explained that legal advice:

O’Dowd: We agreed that there was a remit of the committee and we have to stick to that. There are certain questions which were read out at the very beginning – I appreciate that the Deputy was not here – that could not be asked legally and other ones that could. 

O’Brien: “Is that one of them?”

O’Dowd: I am advising the Deputy, as Chair, just to be careful what he is saying here in terms of the legal issues, of which he may not be aware, and the Supreme Court case.

O’Brien: “As a member of the Committee of Public Accounts I am well aware of the Supreme Court case. I appreciate the advice.”

O’Dowd: I am not finished. I want to make very clear to the Deputy and to everybody that we are all on the same side here in getting the facts. We have to act within the law, whether we like it or not.
I do not like having to say to the Deputy that he has to be careful about a question but if I do not do that, I am in breach of my duty. The Deputy may not like to hear this but the fact is that the Supreme Court has commented on the role of the chairman in the Kerins case and I have to have due regard to all of the advices I have got.  There is no big deal here.

The Kerins ruling noted the role of the chair in dictating the nature of the questioning, saying that “where a particular course of action is engaged in by a member or members of a committee without… without intervention from the chair, it may well be open to the conclusion that the committee as a whole approved of the action in question”.

The ruling said that it was the role of the chair of an Oireachtas committee to ensure that “the committee acts in a lawful manner”.

This is what a chilling effect could look like in practice, says David Kenny.

“Legal advice tends to be cautious, so with possibility of judicial oversight the legal advice to committees might be not to risk it, which means members won’t ‘push up against the line’ of what’s permitted.”

So what was the Sports Committee’s remit in relation to the FAI?

The committee’s remit is quite narrow – it only has oversight of the government funding of the FAI, despite that being a fraction of its overall cash flow.

As O’Dowd explained at one stage of the questioning:

The only remit we have legally in terms of funding here is funding that comes from Sport Ireland to the organisation – that is the law – and their accountability to that. On other funding, notwithstanding the importance of the Deputy’s questions, they do not have to answer if they do not wish. That is a fact.

Speaking on RTÉ’s Late Debate on Wednesday, O’Dowd expanded on this point.

“We have a remit to look at a public body or wholly or partly funded, but they’re only accountable to us for the €2.9 million, notwithstanding that they got €15 million in funding over 10-15 years, so the Sports Ireland funding is of the €2.9 million.”

The €2.9 million relates to the funding for the entire year, which is given in two payments. Although the first payment has already been granted, the second payment of €1.4 million is due in August, and has been suspended by Sports Ireland.

Committee members, in their questioning of the FAI on Wednesday, tried to make their questioning relevant by linking it to the suspended Sports Ireland funding and how to restore it, rather than general governance and financing of the FAI.

But there were many grey areas where the chair erred on the side of caution.

“We’ve had a number of meetings as a committee,” O’Dowd said on the Late Debate, “with the legal advisors of the Oireachtas, in relation to the Supreme Court case being heard on the issue of the treatment of witnesses, and the tone and the way the chairman does or does not conduct their business.

Our remit is solely to ask questions about the actual governance, but legally, we’re not allowed to ask questions in relation to expenses, in relation to salaries, or all those other issues that everybody wants to get answers to. It is not in our remit and therefore we can’t legally ask them to.

As with the Kerins case, Delaney and his FAI colleagues are citizens, not Ministers or civil servants, and so don’t have to appear before committees, as O’Dowd explains:

Delaney and the FAI are not civil servants, they’re not obliged to appear before Oireachtas committees so if they don’t want to answer questions they don’t have to. 

So do Oireachtas committees need more power, and if they do, what specific powers can we give them?

There are ways of expanding the terms of reference of the Houses of the Oireachtas without evoking constitutional change, Kenny says.

“If you want to go broader than this, and allow the Houses of the Oireachtas to conduct certain inquiries, that’s more tricky. There would be a fear that there would be no judicial oversight… and a distrust of politicians to use that power responsibly.

“Even if you believe committees need to be more robust, formulating that would require constitutional change, and the idea of parliamentary inquiries is unpopular.”

“No committee can be a Starr chamber,” O’Dowd said. “You must have protocols, you must have processes, they must be seen to be fair. It must be respectful of the witnesses, but there must be thorough, there must be robust debate.”

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