High Court: Constitutional freedom of speech in parliament vetoes damages claim

About this case:

• Judgment:
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Citing personal injury and loss of reputation, Ms Angela Kerins sought certain injunctive and declaratory reliefs and damages by way of judicial review, however the Court held that parliamentary freedom of speech prohibited the Court from adjudicating the alleged damaging statements made by the committee in the process of investigating Ms Kerins’ role in the charity.

Background

In 2006, Ms Kerins was appointed Chief Executive Officer of the Rehab Group, but resigned in 2014 after her appearance before the Public Accounts Committee (PAC). Prior to Ms Kerins’ appearance before the PAC, there was a degree of public controversy about the charity sector in Ireland.

Expenditure by the HSE on the provision of services to persons with disabilities was a matter of public debate, and in 2013, Rehab received €86m from the HSE and Solas in respect of SLAs entered into in that year.

As a consequence, the issue of executive pay in the sector was the subject of extensive media coverage, and there was considerable media interest in Ms Kerins’ salary in particular.

In January 2014, the PAC wrote to Ms Kerins informing her that it was examining the issue of State funding to Rehab, and invited her to attend before the PAC.

Public Accounts Committee Meetings

In February 2014, Ms Kerins attended before the PAC, making an opening statement in which she dealt with a number of matters concerning Rehab and in particular with her own salary. The Court heard that Ms Kerins’ appearance before the PAC took about seven hours during which she was questioned by members of the PAC on a wide range of issues, many of which went far beyond those of which she had been notified.

Ms Kerins claims that much of this examination was conducted outside the PAC’s jurisdiction. Irrespective of that contention, it is evident that much of what was put to Ms Kerins were matters of which she had no prior notice.

In the course of this meeting it was suggested to Ms Kerins that she was grossly overpaid and was on “a different planet”; she was subjected to interrogation about her modes of transport; it was said of her that her salary was having a negative effect on Rehab and other charitable organisations; and she was criticised for making “a song and dance” about her appearance before the PAC and giving evasive answers to questions.

As such, Ms Kerins characterised the manner in which the members of the PAC questioned her as “a witch hunt”.

The Court commented that while the Constitution limited the Court’s ability to make any comment touching directly on the utterances of any member of the PAC on the occasions in question; it could not be denied that “much of what was put to her, and said about her, in the course of this meeting was damaging to her reputation personally and professionally”

Ms Kerins asserted that she was “significantly traumatised as a result of her appearance before the PAC”, and on 9th April 2014, Ms Kerins’ solicitors wrote to the PAC confirming that due to ill health and following medical advice, she would be unable to attend a further hearing.

On 10th April 2014, a further PAC meeting proceeded in Ms Kerins’ absence.

While wishing Ms Kerins a speedy recovery, the Court heard that she was “subjected to strident criticism” by a number of members of the PAC for not attending this meeting; with one member describing her non-attendance as being “unacceptable and beyond common sense” and “deplorable”.

The Court stated that what followed was “by any standards, extremely damaging to Ms Kerins’ reputation”.

In the aftermath of this meeting, the PAC sought to compel Ms Kerins’ attendance before the committee, and applied for the power to do so to the committee of Procedure and Privileges (CPP). Ultimately, the CPP found that the PAC did not have the power to investigate the use of monies by Rehab – bringing an end to further pursuit by the PAC of matters relating to Ms Kerins’ role.

The High Court

In the High Court, Ms Kerins brought two claims for declarations that the PAC’s activities complained of were unlawful and tainted by bias; one claim seeking to remove from the record of the PAC all reference to Ms Kerins; and one claim for damages. It was noted that the declaratory reliefs sought were a necessary prerequisite to her claim for damages.

Delivering the judgment of the High Court, Mr Justice Peter Kelly stated that this case concerned important questions of freedom of speech in Parliament, the separation of powers, and the extent to which the Court may intervene in the affairs of the Oireachtas.

Freedom of Speech in Parliament

Article 15 of the Constitution deals with the constitution and powers of the Oireachtas.

In response to Ms Kerins claims, the members of the PAC argued that Article 15 guarantees freedom of speech in parliament that cannot be trumped by the constitutional right to one’s good name provided by Article 40.

Considering the scope of this freedom, the Court considered Callely v. Moylan 4 I.R. 112 at length; and additionally cited the dicta in Cane v. Dublin Corporation I.R. 582 (at p. 601), which stated “…it would be strange, indeed, if a Court of law were to have the power to pass under review the evidence and the proceedings before a Parliamentary Committee.”

The Court held that the utterances made by the PAC were “clearly expressions of opinion” devoid of any legal force, and as such Article 15.13 of the Constitution had the effect of ousting the Court’s jurisdiction.

The Court therefore held that any claim for damages arising from those utterances, would be seeking to make the Oireachtas respondents amenable to the jurisdiction of the Court – and that it was clear from the Constitution that this was not possible.

Describing the separation of powers as “a cornerstone of constitutional democracy”, the Court stated that the Constitution guarantees freedom of speech in parliament, not to protect parliamentarians, but the democratic process itself.

Dismissing Ms Kerins’ claims, the Court held that the privilege conferred by Article 15.13 was not merely one that provides a litigation defence as for example, a plea of privilege in a defamation action; rather utterances in parliament are in an area of non-justiciability ordained by the Constitution.