Oireachtas given solution to avoid another débâcle
The Supreme Court ruling in the Angela Kerins case is significant but may not be as bad for Oireachtas committees as some in Leinster House fear.
There have been dire warnings the finding that the Public Accounts Committee (PAC) acted unlawfully in its dealings with former Rehab Group chief executive Ms Kerins will have a "chilling effect" on the work of parliamentary committees.
But as one committee chair privately observed yesterday: "The only chilling effect will be that it will stop us doing something we shouldn't do."
Yes, the finding by the Supreme Court that there was no "absolute barrier" to bringing proceedings concerning the actions of an Oireachtas committee came as something of a shock.
Until this ruling was made it was always assumed utterances made in parliament were protected by Article 15.13 of the Constitution and could not be adjudicated on by a court.
But it must be remembered the criteria under which the Supreme Court has now found legal actions are possible is actually very narrow.
The court found it could intervene where "there has been a significant and unremedied unlawful action on the part of a committee".
In the Kerins case, the court heard how another committee, the Committee on Procedures and Privileges, found the PAC acted outside its powers, but there was still no remedy available to her to address this.
In its final ruling yesterday, the Supreme Court described the criteria under which a court can intervene as "restrictive".
The court also put it up to the Oireachtas to provide "appropriate solutions" for people wronged by committees.
If it does so, the risk of any further proceedings meeting the restrictive criteria "would be all the more remote", the court said.
The ruling identified four ways the Oireachtas could act. The first related to the terms of reference of a committee.
It suggested if there were issues with a committee's terms of reference, the Oireachtas could adjust them in whatever way it considers appropriate. "If, therefore, there are genuine grounds for enquiring, in the public interest, into a particular matter which comes to the attention of a committee but which seems to be outside of its terms of reference, there is no reason why that committee cannot seek to have its terms of reference adjusted," the court said.
The court also suggested changes to the invitations sent to witnesses to avoid the difficulties encountered in the Kerins case, where she was asked about many issues which she argued were not flagged to her in advance.
Interestingly, the court also said there was no legal barrier to a citizen answering questions which go beyond the scope of an invitation.
A third action the Oireachtas could take would be to specify in its rules and orders the way in which business is to be conducted and, in particular, the role and powers of the chair of any committee to ensure it operates properly.
The final action suggested by the court is the introduction of an appropriate mechanism to provide a remedy in the event of a committee acting inappropriately.
If such a remedy had been in place, it is likely the Kerins litigation would have been avoided and the taxpayer would have been spared a considerable legal bill.