Former Rehab CEO Angela Kerins has won key elements of her Supreme Court appeal concerning her treatment before the Dáil Public Accounts Committee.
The appeal raised important issues concerning the constitutional separation of powers and the courts’ ability to intervene in proceedings of Oireachtas Committees.
In its judgment on Wednesday, the seven judge court found in favour of Ms Kerins on significant issues but adjourned to April a consideration of additional issues before reaching a final conclusion on the appeal.
If those matters are resolved in favour of Ms Kerins, the court said it will declare the PAC acted unlawfully in how in which it questioned her by reason of acting significantly outside its terms of reference and in a manner significantly different from the basis on which it had invited her to appear before it.
Among its core findings was that there is no “absolute barrier” to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas.
It stressed proceedings cannot properly be brought if that breached the privileges and immunities conferred by Article 15 of the Constitution on utterances of members of the Oireachtas or otherwise amounting to an inappropriate breach of the separation of powers.
It said, in the circumstances of this case, it would not be a breach of the separation of powers to declare the actions of the PAC unlawful in light of the fact the PAC was acting outside its terms of reference and that a relevant committee of the Houses of the Oireachtas, the Committee on Procedures and Privileges (CPP) had come to that view.
It said it had assessed PAC was acting outside its remit.
It said it may also be possible to find, on the evidence, the PAC had invited Ms Kerins to attend before it on one basis but then, when she attended, dealt with her on an “entirely different basis”.
It was satisfied it would, “in principle”, be open to the court to declare the PAC acted unlawfully in a manner which had affected Ms Kerins subject to further consideration of two matters.
Those were the court’s view that the appropriate defendant was the Dáil, not individual members of PAC, and whether it is appropriate to characterise the actions of the PAC “as a whole” as being a “significant and material” breach of the basis on which Ms Kerins was invited to appear before it.
There would thus have to be a further hearing to decide whether the actions of the PAC “as a whole” amounted to an unlawful and unfair process. That assessment would place “particular emphasis” on the importance of the role of the PAC chairman whose function is to ensure the body acts properly in accordance with any relevant law, rules of regulation.
Provided the court is satisfied there are actions that it can, and should, take in respect of the identity of the proper defendant, and also satisfied as to the proper characterisation of the actions of the PAC, then such a declaration “should be granted”, it said.
The matter was adjourned to April 8th to address those issues.
The court said issues related to whether Ms Kerins is entitled to any damages would require another hearing and that issue was not before the Supreme Court. It stressed any such entitlement could not be presumed from its findings and would involve the court considering significant legal issues, including the importance of ensuring freedom of speech in the Oireachtas .
Its judgment also noted the CPP had considered the PAC acted outside its jurisdiction in embarking on aspects of the inquiry related to Rehab and on that basis, the CPP refused to allow PAC compel Ms Kerins to attend further hearings.
It appeared the CPP did not have power to prevent the PAC enquiring into matters outside its remit, the court said. It was for the Houses of the Oireachtas to confer appropriate functions on its committees but it is “important” a committee does not exceed its remit without being authorised to carry out an extended remit, it stressed.
Ms Kerins went to the Supreme Court after the High Court rejected her challenge over her treatment at two PAC hearings in 2014 into payments to Rehab, where questions were asked about her €240,000 annual salary and other matters.
She voluntarily attended the first hearing in February 2014 and said her treatment was such she was too unwell to attend the second in April 2014. The conduct of the hearings amounted to a “witchhunt”, she claimed.
The PAC denied her claims and argued it was entitled to scrutinise how public monies are spent when about €83 millions of public monies were paid annually to Rehab companies.
A three judge High Court decided in 2017 the courts could not intervene in how the hearings were conducted.
The Supreme Court later agreed to hear an appeal and, in its judgment, said a combination of factors in this case lead to it being appropriate for a court to intervene.
Those factors were (1) the cumulative effect of the PAC acting “very significantly” outside its terms of reference; (2) acting in a manner the CPP had found was ultra vires; (3) the possibility (if that could be established) the PAC engaged in an unlawful and unfair process by acting as a whole in a manner which lead to a citizen accepting an invitation on one basis, but being treated differently on attendance; (4) and the fact the Oireachtas had taken no action to deal with these matters.
Its judgment also noted, while Rehab receives public funds, it was at all times an independent entity operating in the private sector and was not audited by the Comptroller and Auditor General. Ms Kerins was a private sector employee who did not have a public sector pension.
PAC had advised Ms Kerins it was examining the issue of State funding to Rehab and invited her to appear before it. The High Court found much of what was put to her, and said about her, at the PAC meetings was damaging to her reputation personally and professionally.
