Former Rehab CEO Angela Kerins could face a substantial legal costs bill after losing her High Court case seeking damages against the Dail Public Accounts Committee (PAC) over its conduct of hearings concerning public monies paid to the Rehab group.
A three-judge divisional court ruled, because the Constitution confers absolute privilege on "utterances" in the Oireachtas and before its
Committees and the PAC was making no "determination" in relation to Ms Kerins, the courts cannot intervene in relation to the conduct of the hearings.
"For upwards of four centuries, it has been recognised in common law jurisdictions throughout the world that the courts exercise no function in relation to speech in parliament. This is fundamental to the separation of powers and a cornerstone of constitutional demcoracy."
"The Constitution guarantees freedom of speech in parliament, not to protect parliamentarians, but the democratic process itself."
If members of the Oireachtas were constrained in their speech as Ms Kerins alleged, "the effective functioning of parliament would be impaired in a manner expressly forbidden in absolute terms by the Constitution".
The European Court of Human Rights had also found a rule of absolute parliamentary immunity does not exceed the margin of appreciation allowed to member states in limiting an indidvidual's right of access to a court, it noted.
The judgment has implications for Oireachtas Committees and may also affect the separate case by businessman Denis O’Brien over statements by two TDs in the Dail about his banking affairs, on which judgment has been reserved pending the Kerins decision.
Ms Kerins, who was not in court, could face a six figure bill if the costs of the ten day hearing are awarded against her. Costs and other issues will be addresed on February 21.
She claimed two PAC hearings on February 27 and April 10, 2014, when she was questioned about her €240,000 annual salary and other matters, amounted to a “witch hunt” against her.
She alleged she was so overwhelmed after the first hearing she attempted to take her own life some two weeks later and was too unwell to attend the second hearing.
She sought damages on grounds including personal injury, loss of job and loss of reputation.
The PAC argued it is entitled to scrutinise how public funds are spent when some €80m public monies are paid annually to Rehab companies.
While Mr Justice Peter Kelly, Mr Justice Seamus Noonan and Ms Justice Isobel Kennedy were asked to address a range of jurisdictional issues, they held the issue of jurisdiction did not properly arise here.
Jurisdiction did not arise for reasons including Ms Kerins attended voluntarily before PAC on February 27 and because the Dail Committee on Procedure and Privileges later ruled PAC could not compel her further attendance and had no power to examine payments "by" Rehab.
To ground her claims PAC had no jurisdiction, Ms Kerins had argued utterances by some PAC members amounted to "some form of adjudication or determination", the court said.
While some PAC members did express themselves in terms suggesting conclusions were being arrived at by them, those were "clearly expressions of opinion" by some "devoid of any legal force".
Because they were "no more than utterances", Article 15.13, conferring absolute privilege over utterances in the Houses of the Oireachtas and its Committees, the court's jurisdiction was ousted.
A claim for damages arising from those utterances seeking to make PAC amenable to the court's jursdiction "cannot be done".
Ms Kerins wanted the court to analyse the utterances for bias, propriety and more. That invited the court to examine, discuss and judge words used in parliament which could not be done.
It would be "wrong", the court stressed, to categorise this as a denial of Ms Kerins' constitutional rights.
In this instance, the custodian of those rights was not the court, but the Oireachtas itself by virtue of Article 15.
The Oireachtas is required to uphold the Constitution and respect the rights of citizens, whether members of the Oireachtas or not, the court noted.
The fact there cannot be immediate recourse to the courts placed, if anything, "heavier onus" on the Oireachtas to ensure constitutional rights are respected.
A three-judge High Court will rule next Tuesday on claims by former Rehab CEO Angela Kerins that the Dail Public Accounts Committee had no jurisdiction for how it conducted public hearings concerning public monies paid to the Rehab group.
Independent TD Shane Ross wrote an article after former Rehab CEO Angela Kerins and other Rehab officials appeared before the Dail Public Accounts Committee asserting, "for sheer neck, noone has come within a whisper of Angela Kerins and her charity gang", the High Court has been told.