Daniel McConnell: Move to 'nobble' committees proves to be highly contentious

Oireachtas 'on-hook' for 'very substantial' payout to Angela Kerins

Independent of Government, committees can be a most important vehicle in holding the powerful to account, especially in accounting for how public money is spent and misspent

Last year’s Supreme Court judgment that the 2014 Public Accounts Committee acted unlawfully in its treatment of ex-Rehab boss Angela Kerins has had significant ramifications in how the Oireachtas is run.

This week, the committee chairs were briefed by the Oireachtas legal advisers as to the proposed remedies as to ensure committees don’t repeat the damage done to Ms Kerins during that infamous seven-and-a-half-hour hearing of the PAC in 2014.

That meeting was informed by the Oireachtas chief legal adviser Melissa English that the Oireachtas was duty-bound on foot of the Supreme Court judgment to essentially get its house in order as to how committees are run.

They were also told that the second half of the Kerins litigation relating to the level of damages to her is pending and Ms Kerins and her team are seeking discovery of the minutes of the private meetings of the PAC relating to her attendance and the legal advice underpinning it.

The committee chairs were also told that the Oireachtas is on the hook for a “very substantial” level of costs relating to covering the legal fees of the case to date. That amount is said to be in excess of €1m

As part of all of that, the committee chairs were also briefed on a new set of reform proposals as to how committees should be run into the future.

A ‘Confidential’ document of the Working Group on Parliamentary Privilege and Citizens’ Rights including the proposals for reform, has been obtained by the Irish Examiner.

It proposes 25 separate recommendations which some committee chairs have said could “nobble” the power and independence of the committees.

While affirming the important work of committees and the need for them to have sufficient powers to pursue matters in the public interest, the document states the constitutional rights of citizens do not disappear at the gates of Leinster House.

“The Court ruled that it is for the Houses themselves to adopt Standing Orders, or other measures, to protect individuals against inappropriate infringement of their rights, while at the same time protecting the freedom of speech guaranteed to Members and protecting the Oireachtas from undue interference with its entitlement to carry out its constitutional role in whatever way it considers appropriate.’ Part of these rules should also encompass an appropriate mechanism to provide a remedy in the event of a Committee acting inappropriately,” the document states.

The Working Group identified three key elements of the Kerins judgment.

Court will find a Committee acted unlawfully if it acts “significantly outside its terms of reference”.

This is capable of being remedied by the Houses, as the terms of reference can be adjusted by the Oireachtas “in whatever way it considers appropriate” as long as those Terms of Reference remain within the constitutional remit of the Houses. 

That remit is very wide. 

The Court suggests that a mechanism could be put in place which would allow for quick and efficient changes.

The boundaries of a Committee’s Terms of Reference must be clearly defined.

The 25 recommendations made cover a range of issues including the treatment of witnesses, the role of the chairman, how meetings with witness must stick to the format outlined in written invitations, training for TDs and how to stop committees from straying beyond their remit.

Last year’s Supreme Court judgment that the 2012 Public Accounts Committee acted unlawfully in its treatment of ex-Rehab boss Angela Kerins has had significant ramifications in how the Oireachtas is run. Picture: Collins Courts

While many of the matters raised are well within the bounds of good housekeeping, the last issue is already proving contentious.

It is proposed that a new “internal oversight mechanism via a Committee on Remit Oversight should be established to consider if Committees are acting in breach of their remit. This should also allow for a process to deal with the issue of overlapping remits of Committees.”

“As part of this, a procedure should be established for Committees to apply to extend their Terms of Reference for a specific purpose via an instruction motion from the Dail. The Terms of Reference of each Committee should be reviewed to ensure they accurately reflect the work of the Committee. Where they do not, the Terms of Reference should be amended,” the document states.

Some committee chairs see this as a direct attempt by the “permanent government” within Leinster House to limit the independence and ability of committees to fully pursue matters that are sensitive, contentious and important.

“They have been waiting for years to put manners on committees and are using the Kerins judgment as the wedge to do so. They are trying to shut us all down,” said one committee chair privately.

Members of the current PAC have also spoken of their distaste for a new Oireachtas ruling which could serve to “nobble” the work of committees.

Fianna Fáil TD Marc MacSharry spoke of Standing Order 218, a newly drafted order which defines what the committee can ask about in its hearings.

Mr MacSharry alleged that the imposition of the narrow definitions of the committee’s remit was a result of the Kerins case. “I said at the time that the Kerins judgment would be dressed up in such a way as to nobble the work of committees, and this one in particular, and that is precisely what’s going to happen,” he said.

Standing orders are the rules of the Dáil, with a new book of such orders put together for the beginning of each new Dáil session.

The Working Group report also states that Standing Orders should be amended to provide detail on the role and responsibilities of the Chair. “This should include: ensuring that the Committee acts within remit and within the scope of any invitation, maintaining order in the Committee and ruling on matters of order when requested by a Member or a witness to do so, ensuring compliance with the Witness Protocol,” which some committee chairs see as a further limiting of the committee.

Brian Stanley, the new PAC chair said while the Kerins case did raise the need to reform, there are concerns about Standing Order 218 and these additional changes. “It can be seen as a means of restricting the committee. It creates a filter through which the PAC must run its work and they can stop it if they wish. So that is a concern,” he said.

Fianna Fáil TD James Lawless, chair of the Justice Committee, said there should be a “healthy tension” between the permanent civil service and the politicians but he said officials should not be seeking to limit the work of committees.

“As chair, I will push back on any attempt to limit our work. Many of the proposals are reasonable but while there should be a healthy tension between us, committees and chairs must have the ability to pursue important matters in the public interest,” he said.
Other chairs see it differently. Several chairs were highly critical of the then PAC which did battle with Kerins, accusing it of ambulance and headline chasing. They see the reforms as necessary improvements in how committees will do their business.

Ultimately, powerful committees have proven their worth in years gone past. That PAC which was so heavily criticised, did invaluable work on issues like Grace, the CRC pensions scandal, the voluntary hospital sector and also in holding the HSE to account.

Independent of Government, committees can be a most important vehicle in holding the powerful to account, especially in accounting for how public money is spent and misspent.

We weaken them at our peril.