Kerins v McGuinness

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 29 May 2019
• Neutral Citation: [2019] IESC 42
• Docket Number: Record No: 2017/71
• Court: Supreme Court
• Date: 29 May 2019

Between/

Angela Kerins

Applicant/Appellant

And

Deputy John McGuinness, Deputy Mary Lou McDonald, Deputy Shane Ross, Deputy Áine Collins, Deputy Paul J. Connaughton, Deputy John Deasy, Deputy Robert Dowds, Deputy Seán Fleming, Deputy Simon Harris, Deputy Eoghan Murphy, Deputy Gerald Nash, Deputy Derek Nolan, Deputy Kieran O'Donnell, The Clerk of Dáil Éireann, The Clerk of the Public Accounts Committee, Ireland

and

the Attorney General

Respondents

[2019] IESC 42

Record No: 2017/71

THE SUPREME COURT

Substitution – Declaration – Public hearing – Whether it would be appropriate to join the institution of the Dáil as a defendant in the proceedings – Whether the actions of the Dáil Public Accounts Committee could be said to have been in significant breach of the terms of the invitation issued by it to the appellant to attend before it

Facts: The Supreme Court gave a substantive judgment in this case: Kerins v McGuinness [2019] IESC 11 (the principal judgment). As noted in the principal judgment, two matters were left over for further consideration, the first being the question of whether it would be appropriate to join the institution of the Dáil as a defendant in these proceedings. The reason why that issue emerged stemmed from the finding of the Court, as set out in the principal judgment, to the effect that the Dáil (or, in an appropriate case, the Houses of the Oireachtas or the Seanad) is the appropriate defendant in proceedings such as these, rather than the individual members of a committee whose actions are challenged. The second issue left over for further consideration was the question of whether the actions of the Dáil Public Accounts Committee (the PAC), looked at as a whole, could be said to have been in significant breach of the terms of the invitation issued by the PAC to the applicant/appellant, Ms Kerins, to attend before it. The reasons why that question was considered of relevance were fully set out in the principal judgment. The Court indicated that, in the event that it was satisfied on the facts that the actions of the PAC could be so characterised, it was the intention of the Court to make an appropriate declaration.

Held by Clarke CJ that, regarding the first question concerning whether it would be appropriate to join the Dáil as a respondent in these proceedings in substitution for the individual members of the PAC and the Clerk of the Dáil, counsel for those parties quite properly made no objection to that course being adopted. Clarke CJ held that the Court would, therefore, make an order substituting the Dáil as an institution for the respondents concerned.

Clarke CJ held that, regarding the second issue as to whether it could be appropriate, on the evidence, to characterise the actions of the PAC as a whole as being such that it could be said that Ms Kerins was invited to attend before the committee on one basis but where the committee acted in a significantly different manner once she attended, it was appropriate to so characterise the actions of the PAC. In the circumstances, Clarke CJ held that the Court would grant a declaration in the following terms: “A declaration that, by conducting a public hearing in a manner which was significantly outside of its terms of reference and which also departed significantly from the terms of an invitation by virtue of which a citizen was requested to attend, the Public Accounts Committee of Dáil Éireann acted unlawfully.”

Order granted.

Judgment of the Court delivered the 29th May 2019 by Mr. Justice Clarke , Chief Justice

Introduction

1.1 The Court has already given a substantive judgment in this case (see Kerins v. McGuinness [2019] IESC 11) (‘the principal judgment’). As noted in the principal judgment, two matters were left over for further consideration, the first being the question of whether it would be appropriate to join the institution of the Dáil as a defendant in these proceedings. The reason why that issue emerged stemmed from the finding of the Court, as set out in the principal judgment, to the effect that the Dáil (or, in an appropriate case, the Houses of the Oireachtas or the Seanad) is the appropriate defendant in proceedings such as these, rather than the individual members of a committee whose actions are challenged.

1.2 The second issue left over for further consideration was the question of whether it can be said that the actions of the Dáil Public Accounts Committee (‘the PAC’), looked at as a whole, can be said to have been in significant breach of the terms of the invitation issued by the PAC to Ms. Kerins to attend before it. Again, the reasons why that question was considered of relevance are fully set out in the principal judgment and it is unnecessary to repeat them here. Suffice it to say that the Court indicated that, in the event that it was satisfied on the facts that the actions of the PAC could be so characterised, it was the intention of the Court to make an appropriate declaration.

1.3 Further written submissions were directed and an oral hearing held. This judgment is directed solely to those two questions and should be read in conjunction with the principal judgment. The issue of the position of the Dáil can, however, be very simply dealt with and it is proposed to turn first to that question.

2. The Dáil as Defendant

2.1 Counsel who represented the PAC indicated in written submissions and confirmed at the oral hearing that there was no objection to the Dáil as an institution being joined as a defendant in these proceedings, in substitution for the individual members of the PAC and for the Clerk of the Dáil. It is obviously unusual for a new party to be joined to proceedings after a substantive judgment has been given and, in particular, where that occurs before the court of final appeal. However, it is clear that the relevant interests of the Dáil were fully represented at all stages of this process so that, in the circumstances of this case, it is simply a technical question of specifying the precise identity of the correct defendant rather than seeking to join a new party which might have a different interest that was not fully protected in the process up to that point in time.

2.2 On that basis, the Court will make an order substituting the Dáil for the relevant defendants, being all of the defendants with the exception of Ireland and the Attorney General (‘The State’). Because the issue was briefly raised at the oral hearing, it is appropriate to make one further observation before moving on to the second issue. The Court would wish to make clear that the fact that a House or the Houses of the Oireachtas can and should be joined as the defendant in proceedings such as this (and that the individual members of a relevant committee should not be joined) does not alter the justiciability of any particular claim. Just because, for example, the Dáil is joined in proceedings arising out of the actions of a committee of the Dáil does not in any way expand the jurisdiction of the Court to make orders in favour of a plaintiff. The limitations on the jurisdiction of the Court which are imposed by the Constitution, and which are analysed both in the principal judgment and also in the judgment of this Court in O'Brien v. Clerk of Dáil Éireann [2019] IESC 12, represent the boundaries of justiciability in this area. Those boundaries are not altered by the joinder of a House or the Houses of the Oireachtas.

2.3 It is next appropriate to go on to consider the question of fact concerning the issue of whether it can be concluded on the evidence that the PAC acted unfairly in the sense identified in the principal judgment, being that its actions, taken as a whole, can be said to have involved inviting a citizen to attend before it on one basis, but also involved acting significantly outside the terms of the invitation once the citizen attended.

2.4 However, before dealing with the facts in that regard, it is appropriate to make a number of observations.

3. Some Observations

3.1 It should be recalled that the central factors which the Court identified in the principal judgment as potentially giving rise to a situation where it would be appropriate to grant a declaration were:-

1. The fact that the PAC had acted significantly outside its terms of reference;

2. The possibility that it might be appropriate to find as a fact that the PAC had acted unfairly by departing significantly from the terms of the invitation by virtue of which Ms. Kerins was asked to attend before it;

3. The possibility that, having regard to the way in which the hearing was conducted and, in particular, the way in which it was sought to order the hearing, not least by the Chair, it might be appropriate to characterise what occurred as representing the actions of the committee as a whole rather than actions of an individual member; and

4. The fact that there did not appear to be any appropriate remedy available to a person in the position such as Ms. Kerins.

3.2 It should, however, be emphasised that each of the four matters identified are capable of being remedied by the Houses of the Oireachtas themselves. If there are issues with the terms of reference of any committee, then the Oireachtas can adjust those terms of reference in whatever way it considers appropriate, subject only to the limitation that the business which the Houses can assign to a committee must form part of the constitutional remit of the Houses themselves. While not without limit, that remit is very wide. If, therefore, there are genuine grounds for enquiring, in the public interest, into a particular matter which comes to the attention of a committee but which seems to be outside of its terms of reference, there is no reason why that committee cannot seek to have its terms of reference adjusted in some appropriate way to allow it to conduct the enquiry in question. Likewise, there is no reason in principle why...