State says Kerins victory would undermine ‘core principle of democracy’

A victory for former Rehab CEO Angela Kerins in her appeal over her treatment by the Dáil Public Accounts Committee would undermine "a core principle of our democracy", freedom of speech in parliament, the State has told the Supreme Court.

The appeal is about the right of members of the Oireachtas to exercise that right and not to be made amenable when they do, Paul Gallagher SC, for the State and PAC, said.

Article 15 of the Constitution clearly provides members cannot be made amenable for what they say in the Houses of the Oireachtas or its committees, a “very important” part of the parliamentary process without which the Oireachtas would be unable to discharge its functions.

The courts are not entitled to “vet or assess” what is said in parliament or its committees and particularly so in an inquiry Ms Kerins was not compelled to attend. The “form of mental restraint” members would have to exercise if the courts could do so was inconsistent with freedom of speech.

The PAC was entitled to ask questions of Rehab personnel concerning whether the State was getting value for the public monies being paid to Rehab, he said.

The regulation of the PAC hearings was a matter for the Oireachtas and its Committee for Procedure and Privileges brought the hearings on Rehab to an end, he added. He agreed the PAC decided not to proceed when the CPP refused to give it powers to compel witnesses to attend but maintained the relevant constitutional protections were operated.

Earlier, Mr Gallagher reiterated his side’s sincere sympathies over the illness and difficulties experienced by Ms Kerins but stressed his clients did not accept responsibility for those.

Ms Kerins has claimed her experience before the PAC caused her such distress she attempted to take her life.

When Ms Justice Elizabeth Dunne said she had noted the absence of an expression of sympathy in a replying affidavit from the PAC side, counsel said sympathy was previously conveyed to the High Court. Ms Justice Dunne also remarked, by the time a person voluntarily before the PAC might decide to leave, damage may already have been done to them.

A seven judge Supreme Court is hearing Ms Kerins’ appeal over the High Court’s rejection of her claim she was entitled to damages and other reliefs for breach of her personal rights by the PAC at two hearings in 2014 concerning Rehab where questions were asked about her €240,000 annual salary and other matters.

The PAC argued it was entitled to scrutinise how public funds are spent when some €83 million in public monies were paid annually to Rehab companies.

A three judge High Court decided in January 2017, for reasons including the absolute privilege over speech in the Oireachtas, that the PAC was making no “determination” in relation to Ms Kerins and she was voluntarily before it, the courts could not intervene concerning how the hearings were conducted.

The Supreme Court later agreed to hear an appeal due to the “very important” constitutional law issues raised, including whether the courts have any role in protecting personal rights of witnesses before the PAC in the context of freedom of speech in the legislature and the constitutional separation of powers.

Earlier on Wednesday, John Rogers SC, for Ms Kerins, said Article 15 does not prevent the courts deciding whether the PAC’s treatment of Ms Kerins exceeded its jurisdiction and that she is entitled to a remedy for breach of her personal rights.

It was clear from two “seminal” Supreme Court judgments – the 2002 ‘Maguire v Ardagh’ judgment, known as the Abbeylara judgment, and the 1971 ‘Re Haughey’ judgment setting rules for public tribunals and inquiries – that the courts can examine whether an Oireachtas committee acted within jurisdiction, he argued.

The Supreme Court was also entitled to have regard to the fact the people voted in 2011 against extending full inquiry powers to the Houses of the Oireachtas, he said.

The appeal continues.