Greater powers for committees an urgent necessity

Something has to change.

Greater powers for committees an urgent necessity

Something has to change.

Last Wednesday’s highly unsatisfactory Oireachtas sport committee hearing with the FAI was an unseemly farce which left the public and TDs alike fuming.

But it was always likely to happen.

More than eight long hours of testimony was heard but little information was elicited, despite the man at the centre of everything, John Delaney, the FAI’s former CEO and now executive vice president, sitting through it all.

His controversial decision to refuse to answer questions on his €100,000 loan to his employer in 2017 was the most blatant stonewalling of a committee in recent history.

“On legal advice, I am precluded from making any further comments at this hearing in relation to the finances of the association or my former role as CEO, or on the €100,000 payment, either directly or indirectly,” he told the committee.

“In the interests of fair procedures and natural justice, I have made this statement to the committee and attended this meeting voluntarily, as I have attended many Oireachtas committees in the past.

"I am not in a position to answer any such questions here at this time.

"Given that some members of this committee have made highly prejudicial public pronouncements about me personally prior to my attendance here today, and in light of the recent Supreme Court ruling in the Kerins case, I ask that the committee respects this position.”

What we now know from sources is that committee members were warned by legal advisers before his appearance that as a volunteer witness, Delaney was free to walk out at any stage, and therefore they had to tread carefully.

Bottom line, they were warned they could do nothing but sit there and accept his refusal to engage.

In reality, his decision not to play ball was a tactic open to any witness not compelled to appear before the committee.

He was just the first person in six years to refuse to engage.

In 2012, current PAC chairman Seán Fleming made headlines when he lambasted the then-secretary-general of the Department of Health Ambrose McLoughlin for insisting he could not engage with the committee because it had gone out of its remit in seeking to discuss current matters of policy.

“You’re a disgrace as a public official,” the Laois-Offaly TD charged.

“You are not fit for office as chairman of the HSE. You should resign. You are a disgrace. I’m leaving this room. I won’t sit here any further, to this charade of a meeting, which is a disgrace to the Oireachtas and to the people of Ireland,” Fleming boomed.

Back to the present, and it is worth examining just how we got here.

Because of a High Court judgment in November 2001; a failed referendum in 2011 which sought to give committees more power; and now the most recent decision of the Supreme Court in favour of ex-Rehab boss Angela Kerins, the power of Oireachtas committees has been severely diluted.

Angela Kerins
Angela Kerins

Bit by bit, the reach of such committees has been curtailed and Wednesday’s committee hearing was the clearest signal that the situation is no longer tolerable.

Let’s take them one by one.

In 2001, 36 gardaí won their High Court challenge to the Oireachtas sub-committee inquiry into the shooting dead of John Carthy in Abbeylara.

The 95-page judgment found that such inquiries do not have the power to make findings of fact, or expressions of opinion adverse to the good name or reputation of citizens.

The hearing, before a three-judge divisional court of the High Court, lasted 19 days.

The High Court found that the Oireachtas sub-committee inquiring into the Abbeylara incident was acting outside its powers in purporting to report on and investigate the incident.

It did not comply with the requirements of natural and constitutional justice, said the report.

Alan Shatter, then a member of the committee, said the consequences of the judgment created a major constitutional crisis for the Oireachtas.

He said that, if an appeal is unsuccessful, there should be a referendum on the issue.

That referendum came in 2011, after Fine Gael and Labour swept to power following the financial crash.

Amid a demand for greater accountability, Alan Shatter, then justice minister, proposed putting to the people the idea of giving politicians the power to inquire and make adverse findings against an individual.

The hope was that, if successful, the previous powers of committee before Abbeylara would be restored.

However, following a key intervention from eight former attorneys general, including Michael McDowell, the referendum sank amid rancour between Labour and Fine Gael as to who was to blame.

It was a serious setback for those seeking greater powers.

The impact of that referendum defeat came to the fore when the Oireachtas Banking Inquiry was being established in 2015.

The banking inquiry was an extremely limited, yet highly expensive farce which could simply “record and report” what happened but could not apportion blame on any individual or body.

The treatment of Angela Kerins at the hands of the PAC in 2012, during a wave of controversy which engulfed the charity sector, would form the next chapter.

Kerins sued the PAC for the damage it did to her reputation, claiming it had operated beyond its remit, a finding an Oireachtas oversight committee agreed with.

That determination by the Committee of Privilege and Procedures (CPP) was a key determining factor in Kerins’ Supreme Court victory earlier this year.

The Supreme Court judgment found that the PAC, in its dealing with Kerins in 2014, was “acting very significantly outside of its remit” and therefore unlawfully.

But it was the earlier High Court judgment in the Kerins case which opened the door to Delaney being able to refuse to answer questions on Wednesday.

By focusing in on the fact she was a voluntary witness, in finding against her, the judgment concluded that “her attendance was purely voluntary in the legal sense and was not secured by the exercise of any legal power by the PAC.

"Had she chosen not to attend, as did her predecessor Frank Flannery, or having attended not to answer certain questions or indeed to walk out at any stage, the PAC was legally powerless to prevent her doing so.”

Clearly, Delaney’s legal team had read that particular paragraph and relied upon it for his performance on Wednesday.

Ultimately, from a public accountability perspective, the current powers of Oireachtas committees need an urgent re-examination.

I am a big defender of said committees and what they can achieve, especially the Public Accounts Committee, for the hard work they do on our behalf to try and keep the system more transparent and respected than it otherwise would be.

Its work on CervicalCheck, the Grace foster abuse scandal, and the saga of the Garda training college in Templemore are a few examples of the great service of the PAC which spring to mind from the past couple of years.

As I argued on this page recently, the PAC at its best, and all committees, should be a thorn in the side of the establishment, but if they are to work, they need more powers.

If they do not, then we all pay the price in the long run.

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Wednesday, August 17, 2022

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