Former Rehab CEO Angela Kerins was “blaggarded” by members of the Dáil Public Accounts Committee in a way that “changed her life forever”, the Supreme Court has been told.
The outcome of her case contending the PAC is accountable for such treatment of a citizen is of “singular importance” and an “extraordinary moment” for citizens and the State and will “have resonance for years”, her counsel John Rogers SC said.
The courts were not entitled to say Dáil deputies must be given “a wide berth” as the Constitution says citizens have rights to a good name and “a right to redress for a constitutional wrong”.
The Constitution either does not protect parliamentary committees at all from suit or only if they are lawfully exercising their functions, he argued.
In this case, the PAC went “off the rails”, proceeded without “any legal scaffolding” and Ms Kerins’ claims include misfeasance in public office, that the PAC “abused their power”.
He was opening Ms Kerins’ appeal before a seven judge Supreme Court over the High Court’s rejection of her case alleging two PAC hearings on February 27th and April 10th 2014, where questions were asked about her €240,000 annual salary and other matters, amounted to a “witch hunt”.
She voluntarily attended the first hearing and said her treatment was such she was too unwell to attend the second.
The PAC denied a witch hunt and argued it was entitled to scrutinise how public funds are spent when about €83m public monies were paid annually to Rehab companies.
In January 2017 a three judge High Court decided, for reasons including the Constitution confers absolute privilege on speech in the Oireachtas and the PAC was making no “determination” concerning Ms Kerins, the courts could not intervene in relation to how the hearings were conducted.
While critical of how aspects of the hearings were conducted, the High Court said, if Oireachtas members were constrained in speech as Ms Kerins alleged, the effective functioning of parliament would be impaired in a manner “expressly” and “absolutely” forbidden by the Constitution.
The Supreme Court later agreed to hear a “leapfrog” appeal directly to it due to what it described as the “very important” issues of constitutional law raised.
These include whether the High Court was correct to find natural justice rights did not apply to Ms Kerins because the PAC was not exercising a “jurisdiction” as it had no fact finding role in its hearings concerning Rehab and Ms Kerins had not been compelled to appear before it.
Other issues include the legal safeguards available to voluntary witnesses before the PAC and whether the courts have any role in protecting the personal rights of such witnesses in the context of freedom of speech in the legislature and the separation of powers.
During submissions on Tuesday, Mr Rogers read from transcripts of the PAC hearings which he said contained many “deeply wounding” and “extremely damaging” remarks about Ms Kerins, including accusing her of being “evasive” in her answers and telling her to “get a grip” on herself.
PAC had no jurisdiction to inquire into how Rehab spent public monies paid to it and breached both its remit and jurisdiction by asking Ms Kerins detailed questions about her salary, bonuses, contracts Rehab held with other entities and even what year and model was her Audi car, he said.
The High Court finding the PAC was not exercising a jurisdiction as this was a non-adjudicative procedure involving no power compelling Ms Kerins to attend was “deeply troubling” and failed to address her personal rights under Article 40.3.
Even if there was no determination, a committee purporting to exercise a power of the State to conduct an examination must conform with the rules of natural justice and is subject to the jurisdiction of the court when what it does puts at risk the personal rights of the citizen, he submitted.
This was about utterances directed at an individual citizen who was “blaggarded” by deputies who sought to disparage her to a point where the High Court found she had been damaged in her reputation.
Counsel also described as “shocking” comments by then PAC member, now Minister for Transport, Shane Ross in a January 2014 newspaper article prior to the PAC hearings. Mr Ross described an interview with RTÉ radio in which Ms Kerins was asked about her salary as “car crash stuff” and speculated whether Ms Kerins would get the “CRC treatment” from a “Fine Gael dominated” PAC.
Mr Rogers was also critical of comments by then PAC Chairman John McGuinness and his failure to intervene when Ms Kerins was being asked questions which counsel said were outside the PAC jurisdiction.
Ms Kerins experienced great distress over how she was treated, he said. Her case was not just about damages, as the State contended, and she was very anxious the record of what was said about her was expunged.
The appeal continues on Wednesday.
