The Dáil Public Accounts Committee acted unlawfully as a whole in its treatment of former Rehab CEO Angela Kerins when she appeared before two hearings of the committee in 2014, the Supreme Court has declared.
The declaration by the seven-judge court could have significant implications for the work of Oireachtas committees but the court stressed today the Oireachtas itself can act to limit the need or potential for court intervention in any similar case.
The Oireachtas can put in place an appropriate mechanism in the event of a committee “acting inappropriately”, the Chief Justice, Mr Justice Frank Clarke said.
Ms Kerins's case will now return to a three-judge High Court where any decision on whether or not she is entitled to damages will be made at a later hearing. She will, as a result of the Supreme Court's ruling on Wednesday, get her legal costs to date.
Giving the judgment of the entire court, the Chief Justice said the actions of the PAC as a whole were such they condoned the “significant departure” by at least three members of PAC from the terms of its invitation to Ms Kerins to appear before it.
The invitation and related correspondence permitted questioning about Ms Kerins’s salary and the operation by Rehab of three schemes funded by the State, he found.
However, contrary to the terms of the invitation, Ms Kerins was questioned at the February 2014 meeting about matters including salaries of other Rehab officials, any commercial relationships between Rehab and Frank Flannery, her predecessor at Rehab, a commercial relationship between Rehab and a company, Complete Eco Solutions Ltd, and the age of her company car.
While a number of deputies had concentrated their questions on the operation of schemes funded by the State, as provided for in the invitation, questioning on areas “well outside” the invitation did represent a significant part of that hearing.
At the April 2014 meeting, which Ms Kerins did not attend, Rehab officials were questioned about a range of matters outside the scope of the invitation to Ms Kerins and Rehab, including whether they believed she had “dominated” the organisation and damaged its reputation.
Comments of the then PAC chairman John McGuinness during the hearings, including that the committee was acting on an agreed course of action, also supported a conclusion the PAC acted broadly in unison on the relevant occasions.
While the court could not infer the PAC adopted every action of each member, the absence of any objection or intervention and other materials could properly lead to an inference the PAC as a whole did not object to persistent and significant actions by a number of deputies which went unopposed.
While quite a number of the members did seem to concentrate on questioning on issues at least generally within the scope of the invitation to Ms Kerins, at least three, including “significantly” the chairman, engaged in questioning which went significantly outside the scope of the invitation, even if that was taken to include Ms Kerins’s salary.
On the evidence, the actions of the PAC as a whole were ones where Ms Kerins was invited to attend before it on one basis but where the committee acted on a “significantly different” basis once she attended, it found.
It ruled Ms Kerins was entitled to a declaration to that effect against the Dáil, rather than the individual members of the PAC.
It declared, “by conducting a public hearing in a manner which was significantly outside 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”.
Following the judgment, the court stressed any dispute between the sides about the further progress of the case should be decided by the High Court in the first instance as the Supreme Court decision related to the first module of Ms Kerins’s case only.
That means any consideration of whether Ms Kerins is entitled to damages will occur later.
In her action, initially brought against the members of the PAC and the State, Ms Kerins alleged her treatment at the PAC hearing in February 2014 amounted to a “witch hunt” and resulted in her being too unwell to attend the second hearing.
PAC denied her claims and argued it was entitled to ask questions concerning State funding to Rehab.
A three-judge High Court found PAC’s treatment of Ms Kerins damaged her personally and professionally but held it could not intervene due to the constitutional immunity conferred on utterances in the Oireachtas.
In an interim judgment on her appeal last February, the Supreme Court held there is no “absolute barrier” to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas.
It said there were factors which might entitle Ms Kerins to a declaration that the PAC acted unlawfully as a whole. These were that the PAC acted “significantly” outside its terms of reference, might have acted unfairly by departing significantly from the terms of its invitation to Ms Kerins to appear before it; the conduct of the hearing as a whole, including by the chairman; and the fact there appeared to be no appropriate remedy available to Ms Kerins as the Dáil Committee on Procedure and Privileges had declined to intervene.
The court directed a further hearing to decide whether the actions of the PAC “as a whole” amounted to an unlawful and unfair process and whether the Dáil, rather than individual members of the PAC, was the appropriate respondent.
It heard submissions on those matters last month before giving judgment today.
