Kerins v McGuinness

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan,Kelly P.
• Judgment Date: 31 January 2017
• Neutral Citation: [2017] IEHC 34
• Court: High Court
• Docket Number: [2014 No. 431 JR]
• Date: 31 January 2017

[2017] IEHC 34

THE HIGH COURT

JUDICIAL REVIEW

DIVISIONAL COURT

Kelly P.

The President

Mr. Justice Noonan

Ms. Justice Kennedy

[2014 No. 431 JR]

BETWEEN

ANGELA KERINS

APPLICANT

AND

JOHN McGUINNESS, MARY LOU McDONALD, SHANE ROSS, AINE COLLINS, PAUL J. CONNAUGHTON, JOHN DEASY, ROBERT DOWDS, SEAN FLEMING, SIMON HARRIS, EOGHAN MURPHY, GERALD NASH, DEREK NOLAN, KIERAN O'DONNELL, THE CLERK OF DÁIL ÉIREANN, THE CLERK OF THE PUBLIC ACCOUNTS COMMITTEE, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Representation of people – The Health Act 2004 – Inquiry into State funding in charity sector – Proceedings before Public Accounts Committee of Dail Eireann (PAC) – Validity of content and scope of inquiry conducted by PAC – Jurisdiction of PAC – Dail Standing Order 163 – Part 7 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 – Bias – Separation of power – Extent of judicial interference in executive decisions – Freedom of speech – Art. 15.13 of the Constitution

Facts: The applicant had filed the present proceedings for seeking certain injunctive reliefs and damages against the respondents. The applicant contended that the manner in which inquiry was conducted by the PAC into the affairs of a ‘not for profit company’ was outside the jurisdiction of the PAC. The applicant, being the CEO of that company, claimed damages as she had argued that the manner of asking questions in relation to her salary and expenditure of State funds was derogatory. Since the Court of Appeal had already granted an order for the modular trial of the claim for damages, the sole issue that remained for determination was whether the utterances made by the members of the PAC during the questioning of the applicant were justiciable. The respondents contended that by virtue of arts. 15.12 and 15.13 of the Constitution, the conduct of the members of Parliament or any committee thereof could not be subject to judicial scrutiny.

Mr. Justice Kelly P. dismissed the applicant's claim. The Court held that the inquiry conducted by the PAC was not an adjudication or determination as the committee did not possess any compelling power, and hence, the issue of jurisdiction did not arise. The Court distinguished the present case from Re Haughey [1971] I.R. 217 and Abbeylara in that the applicants in both the cases were subjected to compulsory determinative process, while the present applicant was not. The Court found that the PAC did not make any findings against the applicant and did not have any coercive power to ensure her presence at further hearings. The Court observed that by virtue of arts. 15.12 and 15.13 of the Constitution, the utterances made by the PAC members could not be subject to legal proceedings as they were merely personal opinions and the applicant was at liberty to refute them. The Court observed that if each and every word spoken by the members of the Parliament or any sub-committee thereof was put under judicial scrutiny, there would be unnecessary interference in the smooth functioning of the Parliament. The Court opined that it was essential to protect the right of Freedom of Speech in the Parliament. The Court, however, noted that it was the responsibility of the Oireachtas to ensure that committee hearings should take place under the ethics as elaborately provided in the legislation. The Court held that the custodian of right, which the applicant was asserting, vested with the Oireachtas itself and not the High Court.

JUDGMENT of the Court delivered on 31st day of January, 2017.

Introduction

1 This matter arises out of certain proceedings that took place before the Public Accounts Committee of Dáil Éireann (‘the PAC’) on 27th February, and 10th April, 2014. Arising from those proceedings, the applicant (Ms. Kerins) seeks certain injunctive and declaratory reliefs and damages by way of judicial review. A modular trial of the applicant's claim was directed by this court and on appeal, the Court of Appeal. Thus the issue of damages does not arise for determination in this module.

The Parties

2 Ms. Kerins qualified as a nurse and midwife and worked in healthcare management positions before taking up employment with the Rehab Group in 1992. In December 2006, she was appointed Chief Executive Officer of the Rehab Group, a position which she held until her resignation in April 2014. The first thirteen respondents were at the relevant times members of the PAC and Dáil Éireann.

3 The Rehab Group (Rehab) is a company limited by guarantee and a registered charity. It was incorporated on 28th July, 1953. It was formerly known as the Rehabilitation Institute and the Rehabilitation Institution Ltd. It is an independent not for profit company.

4 Rehab comprises a mix of charitable and commercial companies and at the relevant times operated in Ireland, England, Scotland, Wales, Poland, the Netherlands and Saudi Arabia. Its total staff amounted to in excess of 3,500. It had some 80,000 service users annually. The income of Rehab is derived from a number of different sources. Among those sources are three which provided public monies. It is important to point out that although public monies were provided to the Rehab Group, it was at all times an independent entity operating in the private sector. Ms. Kerins was a private sector employee. She was not a public servant. She did not enjoy access to the public sector pension scheme.

5 The first element of public funding received by Rehab was as a result of a competitive tendering process whereby it entered into service level agreements (SLA's) with the Health Service Executive (the HSE) pursuant to the provisions of s. 39 of the Health Act 2004. The payment received on foot of those agreements was in consideration of the provision of specified health and social care services by Rehab. Under these SLA's the HSE retained oversight rights in respect of the service and the Rehab Group was obliged to maintain audited accounts and make them available to the HSE.

6 Rehab was also in receipt of payment for services from other State agencies apart from the HSE. Such funding included payments by an entity called Solas which was in respect of services provided by Rehab pursuant to contractual arrangements with Solas.

7 The third source of public funding came via the Department of Justice and Equality. Such payments were made under the Charitable Lotteries Scheme. Those funds were designed to compensate for the restrictive legislation that charity lotteries, including Rehab, operate under when compared to the unrestricted prize fund of the State owned National Lottery.

8 It is right to point out that both the HSE and Solas considered that the services provided by Rehab on foot of the contractual arrangements entered into with both entities represented value for money. This acknowledgment was made by both the HSE and Solas at a meeting of the PAC on 27th February, 2014. Insofar as the monies provided by the Department of Justice and Equality were concerned they were the subject of a detailed report provided to that Department on an annual basis. No complaint has been made by that Department against Rehab concerning how those monies were spent.

9 As Rehab was not within the remit of the Comptroller and Auditor General it was never audited by him.

10 The PAC is a committee of Dáil Éireann.

11 At all material times the first respondent (Mr. McGuinness) was the chairman of the PAC. It is composed exclusively of members of the Dáil. It is defined in s. 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (‘the 2013 Act’) as meaning ‘ 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’.

The Health Act 2004

12 The bulk of the public funds received by the Rehab Group are paid to it by the HSE pursuant to s. 39 of the Health Act 2004.

13 The HSE funds more than 2,600 agencies which operate more than 4,200 separate funding arrangements to a value of approximately €3.3 billion. A total of 39 of these agencies, accounting for €2.4 billion, are funded under s. 38 of the Health Act 2004. The remaining agencies, of which there are more than 2,500, are funded under s. 39 of that Act. The practical difference between these two statutory provisions is to be found in testimony which was given before the PAC by Mr. Tony O'Brien, the Chief Executive of the HSE. He said:

‘Under s. 38 the HSE may enter into an arrangement with the service provider for the provision of health and personal social services on its behalf. Under s. 39, the HSE may give assistance to a person or body to provide a service similar or ancillary to a service that the executive may provide. The governance context in which the HSE engages with s. 39 agencies is distinctly different from that which applies in the case of s. 38 agencies. For example, the employees of s. 39 agencies are not public servants, are not members of public service pension schemes and, unlike their s. 38 counterparts, are not directly bound by the Department of Health consolidated salary scales. In a situation where a funding arrangement under s. 39 was reclassified as coming under s. 38, the cost to the State of providing that service would likely increase in a material sense in the immediate and long term due to increased public sector numbers, pay rates and pension costs as well as the loss of the current flexibility around development and reorganisational services. No such reclassification has taken place in recent years.’

14 His evidence makes clear and indeed it is common case that monies paid to Rehab by the HSE were paid pursuant to the provisions of s. 39 of the Act.

Factual Background and Chronology

15 Prior to February 2014, there was a...