Kerins case hovers over work of committee examining Delaney
The Kerins case is significant, but one constitutional law expert believes it does not go as far as some politicians seem to think
Former FAI chief executive John Delaney leaving Leinster House after appearing at the Oireachtas Sports Committee. Photograph: Laura Hutton
In February the Supreme Court said it was likely to find for ex-Rehab chief executive Ms Kerins, who argued that the Public Accounts Committee exceeded its powers when it questioned her about her salary and the charity’s finances.
If the court sticks to this opinion in its final ruling it will significantly impact on Oireachtas committees. For the first time they will not enjoy absolute privilege, and will be subject to judicial oversight if they stray too far.
The potential effects of such a judgment were clear even before former FAI CEO, now vice-president, John Delaney sat down before TDs and Senators on Wednesday.
Earlier this week committee members passed around questions they intended to ask Mr Delaney, many of them about the €100,000 loan he gave to the organisation in 2017.
When Office of the Parliamentary Legal Advisors (OPLA) lawyers caught sight of questions they “freaked out”, according to one politician, arguing that they could not be asked.
Briefing the committee, the OPLA “emphasised heavily the impact of the Kerins judgment, and how the committee must stay within its remit”, according to one source.
Mr Delaney also had Ms Kerins in mind. In his statement he made clear he would not be answering questions about the FAI’s finances, his role as CEO or the €100,000 “either directly or indirectly”.
In light of the Kerins ruling, he went on pointedly: “I would ask that the committee respects this position.”
Some, such as Catherine Murphy, tried, but were quickly ruled out of order by chairman Fergus O’Dowd.
Most of the questions asked were soft, even timid, minus all of the combativeness so common in the pre-Kerins era. Some questions were not questions at all, but speeches praising Mr Delaney’s past accomplishments.
The Kerins case is undoubtedly significant, but according to constitutional law expert, Dr Tom Hickey of DCU, it does not go nearly as far as some politicians seem to think.
“If you read the Kerins judgment carefully you will see the judges are at pains to state the Oireachtas has a great degree of privilege and to say ‘we’re not going to interfere willy-nilly’.”
Nevertheless, it “hovers” over the FAI inquiry: “John Delaney places it in there in his statement to effectively eye-ball the committee and to set down a marker”, said Dr Hickey.
Politicians, however, could have asked about the loan, though Mr Delaney was not obliged to answer. But the “chilling effect” of Kerins meant they pulled their punches.
Assistant professor of law David Kenny agrees. “What we saw was a script for avoiding questions you don’t want to answer, and I think we’re going to be seeing it a lot more in future.
Does the Kerins judgment leave Oireachtas committees toothless? That’s not clear. The judgment is influential now because it is still fresh in everyone’s memory.
In fact as the committee sat on Wednesday, Supreme Court judges held a case conference on the pending second part of their ruling. Some lawyers believe, though, that they might even row back somewhat on their initial findings.
“Perhaps in 12 months politicians will find their feet again,” says Dr Hickey. “But nevertheless the judgment is there now, and the message to the parliamentarians is clear: ‘you no longer have total immunity’.”