The Constitution gives no immunity to parliamentary committees that unjustly attack the personal rights of a citizen, as was done to former Rehab CEO Angela Kerins, her lawyer has told the Supreme Court.
There is a limit to what an Oireachtas committee can do and the Dáil Public Accounts Committee exceeded that by conducting an investigation into the internal business of Rehab and the private matters of Ms Kerins, John Rogers SC said.
“This case is of such moment because the most fundamental thing we have in the Constitution is the protection of the personal rights of the citizen through this place,” he told the seven judge court.
The Oireachtas has failed to ensure protection for citizens in such circumstances and the court is entitled to intervene where that is not provided, he submitted. Otherwise, the citizen has “no protection”.
This case is about a citizen who was invited and encouraged to come before a Dáil committee where she was confronted with “destructive and defamatory” statements and “nothing was done to protect her”. Arguments by the PAC and State she was there voluntarily and it was not making findings of fact concerning her were a “red herring”.
Organs of the Oireachtas cannot entirely ignore their remit for the purpose of “having a go at someone”.
The absolute non-amenability to the courts conferred by Article 15.13 of the Constitution on parliamentary speech does not inhibit a citizen’s right to engage with the High Court when there is an unjust attack on their personal rights, he argued.
The Constitution must be read as a whole, there was no reference to Dáil committees in Article 15.13 and it did not apply to committees at all, he argued.
Counsel was making closing submissions in Ms Kerins’s appeal over the High Court’s rejection of her claim she is entitled to damages and other remedies over her treatment at two PAC hearings in 2014 concerning Rehab.
When the four day appeal ended on Friday, the Chief Justice, Mr Justice Frank Clarke, presiding, said the court was reserving judgment. The one thing agreed is that the case is "important and difficult", he said.
The appeal raises hugely important issues of constitutional law concerning freedom of speech in the Oireachtas and the personal rights of the citizen.
Earlier, Maurice Collins SC, for the State, agreed with Ms Justice Mary Finlay Geoghegan people may not turn up at Oireachtas Committees as a result of Ms Kerins’ experience at the PAC.
If the work of committees is diminished as a result, that is “their own fault” but such an outcome was “far less unpalatable” than the consequences of Ms Kerins’ winning her appeal, counsel said.
The significance of this appeal “far transcends its individual facts”. The court was being asked to permit sacrifice of the principle of freedom of parliamentary speech, approved by the people in the Constitution, for Ms Kerins’ personal rights.
While the court’s impulse to “fashion a remedy” for Ms Kerins may be “strong”, the appeal raised “particularly important” constitutional issues which should be decided “at the level of principle unaffected by individual sympathy”, he urged.
Ms Kerins had provided no evidence she felt obliged to attend the PAC, asking someone to attend or answer questions did not involve an exercise of power and all the Rehab witnesses attended voluntarily, he said.
Ms Justice Finlay Geoghegan asked, was the State saying that, when a citizen is going into the “lions den”, regardless of what is said to and about them, they have no legal redress before the courts.
Mr Collins replied a citizen, because of Article 15, has no legal remedy. “The whole point of parliamentary privilege is that there is no remedy and it is wrong to say the court must find a way around that.”
The PAC’s appeal against the High Court’s decision directing it to pay two thirds of Ms Kerins’ estimated €700,000 costs of the case there, plus the State’s appeal over an order requiring it to pay its own costs, will be dealt with after the Supreme Court has given judgment.
Meanwhile, businessman Denis O’Brien’s appeal over statements by two TDs in the Dáil about his banking affairs, which was due to be heard by the Supreme Court next week, will not now be heard until April, after Easter.
