Angela Kerins v Dail Eireann, Ireland and the Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell,Mr. Justice Gerard Hogan,Mr. Justice Brian Murray
• Judgment Date: 18 June 2024
• Neutral Citation: [2024] IESC 24
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000118

Between/

Angela Kerins

Applicant/Appellant

and

Dáil ÉIreann, Ireland and The Attorney General

Respondents

[2024] IESC 24

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Hogan J.

Murray J.

Edwards J.

S:AP:IE:2022:000118

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment ofMr. Justice O'Donnell, Chief Justice delivered on the 18 ^th day of June, 2024.

Background

1 . It is unusual for this Court to hear an appeal in respect of discovery, but these proceedings have a long history, have been strenuously contested and are anything but routine. They concern proceedings before a committee of Dáil Éireann which have already given rise to decisions of the High Court, Court of Appeal and two judgments of this Court already. In this instance the resolution of the application for discovery requires the Court to address an issue of fundamental constitutional importance: can the claim for damages, in this case, be maintained in the light of the privileges and immunities for members of the Oireachtas, and proceedings in the Oireachtas contained in Article 15 of the Constitution?

2 . The facts in this case are well known and set out in some detail in the judgment of the Divisional Court of the High Court in this matter: Kerins v. McGuinness and ors (No. 1)[2017] IEHC 38, [2017] I.L.R.M. 403, and in two decisions of the Supreme Court: [2019] IESC 11, [2019] 1 I.R. 1 (“ Kerins (No. 1)”), and [2019] IESC 42, [2019] 2 I.L.R.M. 361 (“ Kerins (No. 2)”). The facts are also surveyed in the judgment of the High Court ( [2022] IEHC 489 (Unreported, High Court, Owens J., 29 July, 2022)) which is the subject of this appeal. Accordingly, I propose only to set out so much of the factual background as is necessary to set in context the legal issue arising in this case. For a full account of the relevant facts, recourse should be had to the judgments set out above.

3 . Angela Kerins the applicant and appellant herein became Chief Executive of the Rehab Group (“Rehab”) in 2006 and held that position until she resigned in consequence of the events giving rise to these proceedings. Rehab is a company limited by guarantee and a registered charity, formerly known as the Rehabilitation Institute and Rehabilitation Institute Limited. It is an independent not-for-profit company and comprises of a mix of charitable and commercial companies operating in Ireland, England, Scotland, Wales, Poland, the Netherlands and Saudi Arabia with a total staff in excess of 3,500. It is an independent entity operating in the private sector.

4 . Ms. Kerins was a private sector employee and not a public servant. Rehab, the group of which she was CEO, received public funding as a result of a competitive tendering process whereby it entered into service level agreements with the Health Service Executive (“HSE”) pursuant to the provisions of s. 39 of the Health Act, 2004. The payments received on foot of those agreements were in consideration for the provision of specified health and social care services by Rehab. Rehab was also in receipt of payment for services from Solas, another state agency, under a contract between Solas and Rehab and in addition received a certain amount of funding via the Department of Justice and Equality under the Charitable Lotteries Scheme, which had been established to compensate charities with existing lotteries affected by the creation of the State-owned national lottery. Rehab was not within the remit of the Comptroller and Auditor General and was never audited by him.

5 . The original respondents in these proceedings were the individual members of the Public Accounts Committee (“PAC”) in 2014, an institution with a long-standing history which is the principal mechanism under which the Dáil performs its function of supervising the expenditure of public funds. As such, it is composed exclusively of members of the Dáil. It is established pursuant to Order 163 of Standing Orders of Dáil Éireann and is defined by s. 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013 (“the 2013 Act”), as being “ the committee of Dáil Éireann established under the rules and standing orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General”.

6 . For reasons set out in Kerins (No. 2) and which will be discussed later, Dáil Éireann has been substituted as a respondent for the fifteen individual members of the PAC who were the initial respondents to the proceedings. However, it remains the case that the proceedings arise out of the conduct and behaviour of certain members of the PAC in 2014, in particular during two hearings of that body, the first conducted on 27 February, 2014 and the second on 10 April, 2014. This Court concluded that the conduct of certain members of the PAC was attributable to the PAC itself and that Dáil Éireann can be said to be responsible in law for the actions of the PAC for the purposes of making a declaration as to the legality of those actions.

7 . After media interest in the salaries of executives in the charity sector and of Ms. Kerins in particular, the PAC wrote to Ms. Kerins on 22 January, 2014 inviting Rehab to address the question of Rehab's funding. On 24 January, 2014 Ms. Kerins met privately with the chair of the PAC to discuss her attendance. On 18 February, 2014, the PAC wrote to Ms. Kerins inviting her to appear on 27 February of that year, indicating that it was proposed to examine three matters:-

• i. Payments made by the HSE to Rehab under s. 39 of the Health Act, 2004;

• ii. The operation of the Charitable Lotteries Scheme and payments made to Rehab from the Department of Justice and Equality; and

• iii. Payments made by Solas to Rehab for the provision of specialist vocational training.

8 . On 27 February, Ms. Kerins attended the committee. She was not represented or accompanied by any lawyer, although she had consulted with her lawyer before attending and there had been some contact between the applicant's solicitors and the PAC on the day preceding her appearance at the Committee. She made an opening statement. She was then questioned for seven hours, with one short break. The Divisional Court of the High Court was in no doubt that the questioning went far beyond the issues notified in the letter of 18 February, 2014 and that many of the matters put to her were matters of which she had no prior notice. Moreover, the manner in which the questions were put to her, was hostile. The meeting is described at paragraphs 20–22 of the judgment of the Divisional Court. That Court, while considering itself significantly constrained to the extent to which it could comment on any utterances made by any member of the Oireachtas, nevertheless felt it possible and necessary to express its clear view that many of the matters put to Ms. Kerins on that occasion were damaging to her reputation, both personally and professionally.

9 . The meeting was broadcast and extensively reported in the media. The events of the meeting were traumatising for Ms. Kerins. She was admitted to hospital and remained there between 2 and 11 March, 2014 and attempted to take her own life on 14 March of that year. On 13 March, 2014 the PAC wrote to her, inviting her to attend again before the PAC on 10 April, 2014. In April, 2014, Ms. Kerins resigned from her position as Chief Executive of Rehab.

10 . Ms. Kerins did not attend the aforementioned meeting of 10 April. It went ahead in her absence and was attended by the chair of Rehab, three members of the board of Rehab and a Rehab executive. Although notified by letter the previous day of Ms. Kerins' illness, the chair of the PAC, having wished her a speedy recovery, then criticised her non-attendance in trenchant terms. The Rehab representatives who attended the meeting were invited to criticise Ms. Kerins. The tone of the meeting overall was extremely critical of her. Again, the Divisional Court felt required to express its conclusion – again with some understatement – that what transpired at the meeting “… was, by any standards, extremely damaging to Ms. Kerins' reputation”. The meeting is described at paragraphs 26–30 of the judgment of the Divisional Court.

11 . The PAC continued to pursue the issue. It is to be noted that Ms. Kerins had been invited to attend the meeting of 27 February, 2014 and had done so voluntarily. The PAC did not have the power to compel her attendance of its own motion, or indeed, compel the attendance of any other person. For that purpose, it was necessary to seek powers of compellability under Part 7 of the 2013 Act from the Committee on Procedures and Privileges (“CPP”). The CPP gave its decision on 16 July, 2014 and concluded that, in seeking to investigate Rehab (and, by extension, Ms. Kerins), the PAC was acting ultra vires its powers. The CPP concluded:-

“ The main issue in this application is whether the PAC would be acting intra vires in pursuing this matter. The powers of all Committees are derived from Standing Orders, the Inquiries Act, the Constitution and case law. In its submission of 1 July, the PAC accepts that Rehab is not audited by the C&AG. However, the Committee argued that it is implicit in the PAC's role to make inquiries of bodies in receipt of public money.

It is clear to the CPP, and this position is corroborated by the independent legal advice provided both internally and externally, that under SO 163(1) the PAC is only empowered to proceed with examination of an account or a report after it is presented to Dáil Éireann. As no such account or report exists or has been presented to Dáil Éireann, the examination into the internal affairs of Rehab isultra viresthe PAC. The PAC does not have the implied power to investigate the use of monies by any person or company or other body simply because they are in receipt of money from a body...