Secret advice warns TDs of legal action from committee witnesses
Oireachtas committee chairs are being warned that all witnesses appearing before them could now take legal action if they believe they have been treated unlawfully.
The Irish Independent can reveal that the confidential legal advice has advised the committee leaders to put in place remedies for witnesses who allege that they have been treated unlawfully by politicians.
Such remedies could avoid costly legal action in the future.
The advice has been drafted in the wake of two Supreme Court judgments in the Angela Kerins case.
Ms Kerins, the former chief executive officer of Rehab, initiated proceedings against the Public Accounts Committee (PAC) over her treatment during two voluntary appearances at hearings in 2014.
Two separate Supreme Court judgments earlier this year found against the PAC. The findings are expected to have far-reaching implications for the future of committee hearings and inquiries.
An opinion from the chief parliamentary legal adviser, which was prepared for a meeting of Oireachtas committee chairs scheduled for tomorrow, states that having won her landmark case, Ms Kerins will most likely pursue damages in the High Court.
The legal opinion outlines a number of important principles emerging from the case, including that while the Constitution confers a wide scope of privilege and immunity for politicians in the Oireachtas, a citizen who accepts an invitation to appear before a committee is entitled to expect that it will act within the boundaries of that invite.
It also notes that, as a result of the Supreme Court verdict, it is no longer the case that the courts can only intervene if a witness has been compelled to appear before an Oireachtas committee.
According to the opinion, the judgment means that when it comes to issuing legal proceedings for alleged unlawful treatment there is no longer a difference between a witness who is compelled to appear and one who appears voluntarily at a committee hearing.
The legal opinion also states that the Dáil, as distinct from individual TDs, can be the appropriate defendant in proceedings concerning the conduct of a committee, stating that it is not appropriate, for constitutional reasons, to name the individual members of a committee as defendants in court proceedings.
It states that the Houses of the Oireachtas has the primary role in providing a remedy to citizens affected by an unlawful action and that it has obligations including to adopt standing orders - the internal rules of Dáil and Seanad - or other measures that would be designed to provide protection to individuals appearing before committees.
The legal opinion also states that the role of committee chairs will be of particular importance in light of the Supreme Court judgments and the extent to which chairs will now impose appropriate limitations on the actions of committee members.
The opinion also states that the Supreme Court had noted in its judgment that it was arguable that there was a constitutional obligation on the Oireachtas to put in place an appropriate mechanism to remedy any wrong done to a person appearing before an Oireachtas committee.
The opinion notes that the court suggested that the Oireachtas or a committee within it have a role in "policing" other committees which carry out hearings and inquiries. The court found that the existing committee on procedures and privilege did not appear to have the power to prevent the PAC from enquiring into matters outside its remit.