Saturday 24 August 2019

Supreme Court finds Dáil PAC acted unlawfully in treatment of former Rehab group chief Angela Kerins

Angela Kerins. Photo: Collins Courts
Angela Kerins. Photo: Collins Courts
Shane Phelan

Shane Phelan

The Supreme Court has found the Dáil Public Accounts Committee (PAC) acted unlawfully in its treatment of former Rehab Group chief executive Angela Kerins.

The ruling is highly significant, with major ramifications for the manner in which Oireachtas committees conduct their business in future.

Court ruling: The Supreme Court found the PAC ‘acted significantly’ outside its terms of reference in a case taken by former Rehab CEO Angela Kerins
Court ruling: The Supreme Court found the PAC ‘acted significantly’ outside its terms of reference in a case taken by former Rehab CEO Angela Kerins

Ms Kerins sued the committee, its clerk, the clerk of the Dáil, Ireland and the Attorney General over her treatment at two PAC meetings in 2014, the first of which she attended and the second she didn’t.

Earlier this year, the court found it had the power to declare the committee acted unlawfully, if it "as a whole" acted outside its remit and breached the terms of the invitation it extended to Ms Kerins to appear.

It sought further submissions on this and today gave its final ruling on the issue.

Reading the ruling of the seven-judge court, Chief Justice Frank Clarke said: "In the circumstances the court will grant a declaration in the following terms.

"A declaration that, by conducting a public hearing in a manner which was significantly outside of its terms of reference and which also departed significantly from the 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."

The decision means Ms Kerins may now pursue further legal action in the High Court.

Mr Justice Clarke said the Supreme Court intended to award Ms Kerins both her costs in an earlier unsuccessful High Court action and her successful Supreme Court appeal.

Ms Kerins lost the earlier High Court case and had to pay a third of her costs under that ruling.

But this decision will now set be set aside, unless it can be successfully opposed by the PAC. The PAC has until this Friday to lodge an objection on the costs issue.

In the earlier ruling, explaining why Ms Kerins might not necessarily be entitled to damages, the court said it was placing significant weight on the need to protect the entitlement of the Oireachtas to secure freedom of speech within the Houses of the Oireachtas.

The costs ruling means the case could end up costing the taxpayer in the region of €1m.

But the ultimate cost to the taxpayer could be even more should Ms Kerins now seek damages.

It is by no means certain she will get damages, however.

In an earlier ruling, part of which Mr Justice Clarke reiterated today, the Supreme Court pointed out “it by no means would necessarily follow from a decision of this Court to the effect that the PAC had acted unlawfully that Ms. Kerins would be entitled to damages. A whole range of issues would need to be considered”.

Today’s judgment was concerned with two specific issues.

The first question was whether the it would be appropriate to join the Dáil as a respondent in the proceedings in substitution for the individual members of the PAC and the clerk of the Dáil. 

Mr Justice Clarke said counsel for those parties “quite rightly” did not object to this and he made an order substituting the Dáil as the institution for the respondents concerned.

He said the second issue was whether it would be appropriate, on the evidence, to characterise the actions of the PAC as a whole as being such that it could be said that Ms Kerins was invited to attend the committee on one basis, but where the PAC acted in a significantly different manner once she attended.

He said the court considered it appropriate to characterise the actions of the PAC in this way and made the declaration that the committee acted unlawfully.

The ruling paves the way for Ms Kerins to return to the High Court, where a second module in her earlier case has yet to be heard.

Mr Justice Clarke said today any dispute between the parties in relation to the further progress of the proceedings should initially be determined by the High Court.

It also considered the need to ensure that the constitutional functions of the Oireachtas can be carried out without undue interference from the courts.

The Supreme Court said those factors weigh heavily in the balance in any case, and would give rise to even greater consideration in the context of a claim for damages.

It also said in the previous judgment that if damages were sought, it would be necessary to establish a causal link between any unlawfulness established and any damage suffered.

“That would require a careful analysis of the precise nature of the unlawfulness determined and a close consideration of the evidence to determine whether any of the adverse consequences for Ms Kerins... could be attributed to that unlawfulness,” it said.

“In that context regard would have to be had to the fact that, for example, a debate in the Dáil during which concerns were expressed about Rehab and Ms Kerins could not be the subject of a declaration of unlawfulness but might well give rise to the same or similar consequences.”

In her initial High Court action, Ms Kerins had claimed “bullying, harassment and persecution”, led by members of the PAC during two hearings in 2014, forced her to attempt suicide.

She had sued for a declaration her rights were breached during the committee hearings and was seeking damages.

Ms Kerins claimed she lost her job, having been chief executive of the charity and commercial group for eight years, and had her constitutional rights breached as a result of the conduct of the committee.

She directly linked the suicide attempt to the conduct of PAC members, stating: “The levels of bullying, harassment and persecution was so intense that this happened. And it was led by a group of politicians.”

A major plank of her case was an allegation PAC members knowingly acted outside their remit, seeking commercial information and details of private earnings, rather than inquiring solely into Rehab serviced paid for by the HSE and Solas.

Ms Kerins claimed they pursued a vendetta, or “witch-hunt”, against her.

But a three-judge divisional court, including the President of the High Court, Mr Justice Peter Kelly, ruled that utterances made in parliament were protected by Article 15.13 of the Constitution and could not be adjudicated on by the court.

However, the Supreme Court found there was no "absolute barrier" to bringing proceedings concerning the actions of an Oireachtas committee.

It found it had the power to declare the PAC actions because the committee was acting outside its remit, and another Dáil committee, the Committee on Procedures and Privileges, came to the same view.

But the court said it could intervene where "there has been a significant and unremedied unlawful action on the part of a committee".

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