News Liz O’Donnell

Tuesday 16 September 2014

Questioning of Kerins had feel of baying for blood

Published 02/08/2014 | 02:30

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Angela Kerins, former chief executive of the Rehab group
Angela Kerins, former chief executive of the Rehab group

AFTER a brace of dramatic events this year, deputies have scattered to their constituencies like mice through the floorboards.

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Released from Leinster House tensions, few relish suggestions of being recalled to discuss the crisis in the Middle East, particularly the appalling carnage 
in Gaza. In the absence of a substantive diplomatic or humanitarian intervention by Ireland which would require their approval, TDs left that intractable tragedy to the Senate.

It is instructive that despite managing to evade abolition, senators have done little since to justify their existence.

In fact there were fewer sittings and several votes were defeated by absences on the government benches. The biggest mishap was in the formation of the Banking Inquiry Committee which was a major embarrassment. As a former Whip, I was surprised no heads rolled; after all the Whip's raison 
d'etre is to deliver votes.

Of course, by forcibly wrestling back the majority, the Government compounded its exposure to claims of abuse of power and political bias. The spat was so unseemly as to prompt independent TD Stephen Donnelly to storm off in high dudgeon.

Then, in a comical throw of the dice he was replaced by Socialist 
TD Joe Higgins, the scourge of bankers and "rack-renting landlords." Mr Higgins will undoubtedly make a colourful contribution to the enquiry's proceedings if it ever happens.

The truth is few people expect the banking inquiry to be capable of due process, mired as the subject matter is in party politics. Prejudicial statements like the Taoiseach's classic one liner about an "axis of collusion between Fianna Fail and Anglo bankers" cannot be unsaid. Apparently, the advisory group set up to assist the fledgling committee members has scoped out an intensive programme of work over 60 days between April and July of next year, sitting five days a week in six-hour sessions; a plan likely to dampen the ardour of deputies facing into an imminent general election.

All agree the recent examination by the PAC of Rehab management in relation to the use of public funds was a legitimate exercise. But the manner of questioning and political grandstanding by some of the members of the PAC in questioning Ms Kerins, was regrettable. As a former TD and member of the Committee of Privileges and Procedure and Commission of the Houses, I balked at the unfairness of the televised proceedings, innuendo and character assaults, and overall failure to shield the witness from unrelenting aggression. It had the feel of the hunt baying for the blood of the trapped prey. Ms Kerins' treatment is now the subject of legal proceedings, to the dismay of the PAC members. But I agree with the judge who sees merit and significant issues of public interest in the case stated. Indeed the court's view would be welcome before the Oireachtas launches into another potential coconut-shy by way of the Banking Inquiry.

Notwithstanding being defeated in the 2011 referendum there remains an appetite for more powerful Dail committees. This stems mainly from Tribunal fatigue and related costs. But, I favour the Commission of Investigation process established by Statute in 2004 by then Minister Michael McDowell over any expansion of committee powers.

Like it or not, most politicians lack the objectivity to behave appropriately in such an enquiring role exercising quasi-judicial powers, without major procedural change.

Rather than expanding their powers, current committees need to be reined in so as to avoid constant challenge in the courts, which characterised the ill-fated Abbeylara inquiry.

The first reform would be that such committee of enquiry (as distinct from a legislative committee) be independent of the executive. Chairs should be elected by the committee members on the basis of seniority, merit, integrity and professional ability rather than by government patronage.

The chair should have no role in questioning the witness, apart from on points of law or clarification or adjudicating on points of order or procedure. There should be a ban 
on public comment on the proceedings by members outside of the hearings. That might be a rule too far for media-hungry politicians.

There may well be a role for parliamentary committees to carry out rapid forensic - but fair - inquiries into matters of public interest but experience to date shows that procedural lapses are a constant cause of referral to the courts. Alan Shatter's application for judicial review of the Guerin report this week is a case in point. He like Ms Kerins, alleges forms of bias and unfair procedures in his treatment and is perfectly entitled to seek legal redress.

The separation of powers in our constitution is there for good reason. Our courts are the appropriate forum for the determination of facts and allocation of culpability.Judges command respect for their intellectual rigour and independence and make findings without fear or favour. So they stand steady as a ballast to protect the rights of individuals, unmoved by populism electoral gain or media hype.

Irish Independent

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