Noel Whelan: PAC owes Angela Kerins an apology

On February 27th, 2014, the Dáil Public Accounts Committee (PAC) sat for what was advertised in advance as an exploration of various streams of public funding to the Rehab organisation.

Rehab, as the Supreme Court emphasised on Thursday, is an entirely independent entity operating in the private sector. About 80 per cent of Rehab’s income derives directly from public funds. It receives funding under contracts for the Health Service Executive as a result of a competitive tendering process, and funding from Solas for specific training programmes.

The witness for Rehab that day at the PAC was its chief executive, Angela Kerins. Notwithstanding the fact that she was a private sector employee, most of the hearing focused on her role and remuneration as chief executive, which included a salary of €240,000.

Many of the contributions from the deputies took the form of invective, snarl and even smear. While TDs at the meeting were free to come in and out as they wished, Kerins although there voluntarily felt compelled to sit there and take it for seven hours with only a short break.

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It amounted to a punishment beating upon her reputation. Among other things she was accused of “adopting double standards”, and of “being on another planet”. She was particularly criticised for making a “song and dance” about her appearance at the committee. Ironically, it was described as “incredible” that her solicitors should correspond with the PAC in advance to advise it of the extent of its remit.

Many of the contributions from the deputies took the form of invective, snarl and even smear

In the days after the meeting, Kerins fell very ill. She attributes this to the trauma she endured at the public accounts committee and the attendant media storm. She was hospitalised for nine days. A few days after she left hospital, she attempted to take her own life. She resigned as chief executive of Rehab two weeks later.

Trounced reputation

During this time, the PAC wrote asking her to again attend for further questioning. Her solicitor wrote back to say she was too unwell to do so. At the following PAC meeting, the chairman, John McGuinness TD, wished her a speedy recovery but then went on to describe her non-attendance as “unacceptable and beyond common sense” and as “deplorable”. Several members of the committee at that meeting – this time in her absence – again trounced her reputation.

A few weeks later, the PAC requested the Dáil Committee on Procedure and Privileges to use its statutory powers to compel Kerins to attend. That committee told the PAC that it could not do so because, on the basis of legal advice from the parliamentary legal service and separate advice obtained from external Senior Counsel, it was clear that in examining the internal affairs of Rehab, the PAC was acting far outside its powers.

The PAC inquiry was halted and its members no doubt hoped that Kerins would go quietly, licking her wounds, into retirement and that the early-embedded public perception that they had done a good day’s work would endure. Kerins, however, decided to challenge their actions in the courts and, five years later, she has been vindicated.

Unfair manner

In 2017, the High Court delivered a lengthy judgment which was implicitly critical of the unfair manner in which the PAC had dealt with Kerins. It ultimately took the view, however, that the constitutional entitlement of the Oireacthas to regulate its own affairs and the parliamentary privilege provided for in the Constitution raised an absolute barrier to the courts reviewing the actions and utterance of TDs in a Dáil committee.

The PAC inquiry was halted and its members no doubt hoped Kerins would go quietly, licking her wounds, into retirement

The Supreme Court took a different view. In an important clarification, a seven-judge court determined that, in the main, the Oireachtas members protected against court challenges. But where their actions amounted to a significant wrong, where no real remedy is made available for any such wrong or where, as in Kerin’s case, the Oireachtas was acting outside its powers, the courts should intervene to protect the constitutional rights of people affected.

What happened to Angela Kerins that day five years ago was nasty. The Supreme Court is now set to declare that it was unconstitutional. In doing so, the Supreme Court has asserted an important principal and protected us all against a tendency among some of our politicians to act like schoolyard bullies. Bullying is always wrong, even when directed against someone who is not popular.

Serious issues now arise for our political system. Are we going to see any accountability from those who led or permitted the PAC to act so unjustly? Three of the members of the PAC at that time are now members of Cabinet. Another of its members has since become leader of a main opposition party. Yet another is the current chair of the PAC itself and the then chairman now chairs another Dáil committee.

Surely their often-professed insistence on accountability should now prompt each of them to consider their own position, and their fitness for senior public office? Will they even have the decency to apologise?