Things are said in the Oireachtas that should not be said, or people would prefer were not said, but that is "the nature of parliamentary privilege" approved by the people in the Constitution, the State has told the Supreme Court.
If the court upholds claims by former Rehab chief executive Angela Kerins that the courts can intervene concerning her treatment during two hearings in 2014 of the Dáil Public Accounts Committee, there would be "huge consequences" , Paul Gallagher SC said.
“Democracy is not entirely smooth and pleasing in all its respects, everything is a compromise and the compromise the people put in place is [Article] 15.13.” There may be “victims” of that but that is “unfortunately part of life” and court intervention could undermine that “delicate” constitutional balance.
Asked by Mr Justice John MacMenamin was a "wrong" done to Ms Kerins by the committee, counsel agreed the High Court found damage was done.
The committee and State are relying on the absolute privilege Article 15.13 affords to “utterances” of members of the Oireachtas, he said. Article 15.13 states members of each House of the Oireachtas “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”.
Mr Gallagher said those “unambiguous” words should be applied by the court to the complaints by Ms Kerins.
A core part of the State case is that Ms Kerins attended voluntarily before the committee, which was not making findings of fact, he said.
Mr Justice William McKechnie remarked it was "fanciful" to suggest Ms Kerins could have left the hearing at any time while Ms Justice Elizabeth Dunne said her absence from the second PAC hearing did not "protect her" given what happened there.
The seven-judge court is hearing Ms Kerins’ appeal over the High Court’s January 2017 rejection of her claim for damages and other reliefs over alleged breach of personal rights at two PAC hearings concerning Rehab where questions were asked about her €240,000 annual salary and other matters.
Her experience was so traumatic she attempted to take her life, she said.
The PAC denies responsibility for her difficulties and maintains it was entitled to scrutinise how public funds are spent when €83m public monies were paid annually to Rehab companies.
Important issues raised
The appeal raises important constitutional law issues, 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.
Ms Kerins has contended two significant Supreme Court judgments – the 2002 'Maguire v Ardagh' judgment, known as the Abbeylara judgment, and the 1971 'Re Haughey' judgment – mean the courts can examine whether an Oireachtas committee acted within jurisdiction.
The ‘Re Haughey’ judgment provided for fair procedures for witnesses before inquiries and public tribunals.
The Abbeylara decision stated the Oireachtas cannot exercise a “quasi-judicial” function by making findings of fact adverse to the good name of a citizen not a member of the Houses.
Mr Gallagher said Ms Kerins was seeking to have both decisions extended in a way they could not be.
Neither decision supported a claim the courts can decide if the PAC had jurisdiction to act as it did because Ms Kerins was voluntarily before it and it was not engaged in adjudication, he said. Article 15.13 makes clear the courts cannot get involved in analysing questions and statements made by members of the PAC with the effect the issue of the PAC’s jurisdiction was not relevant, he said.
Any person aggrieved about something said in the Oireachtas can complain to the Oireachtas itself which can direct withdrawal of a statement, he said. The time for complaint has been extended from two weeks to three months, he noted.
The appeal continues.