Tuesday 11 December 2018

Cases put spotlight on right of TDs to speak without fear of legal backlash

Angela Kerins has sought damages for the loss of her career. Picture: Collins
Angela Kerins has sought damages for the loss of her career. Picture: Collins
Shane Phelan

Shane Phelan

The Angela Kerins Supreme Court appeal is the first of two in a fortnight that will test the right of TDs and senators to say what they like in the Oireachtas without fear of legal repercussions.

Another appeal, by businessman Denis O'Brien against the dismissal of an action relating to the disclosure of banking arrangements in the Dáil, will be heard next week.

At stake is the constitutional guarantee of freedom of speech in parliament.

Twice last year the High Court decided the courts did not have a role in policing what is said in the Oireachtas.

A three-judge division of the court which decided Ms Kerins's case against the Dáil Public Accounts Committee found the immunity against lawsuit conferred by Articles 15.12 and 15.13 of the Constitution extended to parliamentary committees.

Although it found the reputation of the former Rehab Group chief executive was damaged by the PAC, there was nothing a court could do about it.

"This is fundamental to the separation of powers and is a cornerstone of constitutional democracy. The Constitution guarantees freedom of speech in parliament, not to protect parliamentarians, but the democratic process itself," it said.

Now a seven-judge Supreme Court will have to decide if the High Court was right or if there are circumstances where the courts can intervene.

Legal heavyweights are involved on both sides of the argument in the form of two former attorney generals, John Rogers SC for Ms Kerins and Paul Gallagher SC for the PAC. Setting out his stall yesterday, Mr Rogers said the case is one "of singular importance" to all citizens and whatever finding the court makes will resonate for years to come.

"This case is about whether a citizen who suffered what she suffered is entitled to a remedy before the courts," he said.

Ms Kerins has claimed two hearings by the committee in 2014 into public funds paid to the Rehab Group amounted to a "witch-hunt" against her, leading her to attempt suicide and to quit her job.

Mr Rogers said his client was "blackguarded" by members of the PAC in a way that "changed her life forever". The PAC had set out in a letter that it intended to ask questions about money paid to Rehab by the HSE and Solas for the provision of various services.

But the examination of Ms Kerins on February 27, 2014, went far beyond this and Mr Rogers told the court the PAC exceeded its remit and jurisdiction. Ms Kerins was quizzed about her €240,000 salary, her pension and even the car she was driving.

During the hearing she was accused of being "evasive" and told to "get a grip" of herself. When she was too ill to attend a follow-up hearing on April 10 that year, committee chairman John McGuinness initially wished her a speedy recovery.

But, according to Mr Rogers, he went on to make "deeply wounding" comments. These included that her non-appearance was "unacceptable" and "deplorable". It would later emerge in the High Court that there were compelling health reasons for her non-attendance. She had engaged in an episode of self-harm on March 14 that year.

Ms Kerins has sought damages for personal injury, loss of reputation and the loss of her career. But damages are not the primary remedy she is seeking. Mr Rogers said she wants references to her in the PAC record to be removed and a declaration it acted unlawfully.

Despite the damage done, it will be difficult to convince the Supreme Court that it can find against the PAC.

Articles 15.12 and 15.13 have proven rock solid when it comes to protecting utterances in the Oireachtas from action in the courts.

Mr Rogers is claiming these articles do not apply to Dáil committees. And even if they do, he claims the committee can be shown to have acted in breach of Article 40.3, which guarantees that the State will, as far as practicable, defend and vindicate the personal rights of the citizen.

Irish Independent

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