Kerins case: Lessons learned

An Oireachtas working group exploring the response to the Judgements of the Supreme Court in the Kerins Case has completed its review of the procedures of the Houses, returning 25 recommendations to improve and regulate those procedures.

In the wake of the Supreme Court’s judgement on the Kerins case, both the Dáil Committee on Procedure and the Seanad Committee on Procedure and Privileges “agreed to establish an official-level Working Group to review the procedures of the Houses, and in particular, their Standing Orders”. That Working Group carried out their review of a broad range of issues, such as house and committee procedures, oversight mechanisms, citizens’ rights, and the role of the Houses of the Oireachtas Service.

The report first reiterates the Supreme Court’s recognition of committees as “an essential part of the workings of parliament” and “expressly acknowledges the ability of the Houses of the Oireachtas individually or collectively, to conduct their legitimate constitutional business through the work of their committees”. However, the treatment of Angela Kerins by the Public Accounts Committee in 2014 meant that “as the constitutional rights of citizens do not disappear at the gates of Leinster House, the Court rules that 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”.

The Working Group returned with 25 recommendations that can be broadly broken down into five groupings: four specific remits and other recommendations.

1. Committees acting outside their terms of reference

The Supreme Court in its decision said that it will find that a committee has acted unlawfully if it acts “significantly outside its terms of reference”, which can be remedied by the Houses if they make it explicit in the terms of reference that the Oireachtas can operate “in whatever way it considers appropriate” within the wide remit of the Houses. The Court suggested that a mechanism be put in place to allow for quick changes to that effect and that the boundaries of a committee’s terms of reference must be clearly defined.

The Working Group six recommendations under this remit:

1. That an internal oversight mechanism via a Committee on Remit Oversight be established.
2. That a procedure be established for committees to apply to extend their terms of reference via an instruction motion from the Dáil.
3. That the terms of reference for each committee be reviewed to ensure they accurately reflect their work and be amended if they do not.
4. That the terms of reference of sectoral committees should be amended to allow for the examination of the use of public monies by non-State bodies in “specific circumstances”.
5. That the Department of Public Expenditure and Reform undertake a review and extension of the remit of the Comptroller and Auditor General.
6. That a mapping exercise of all State bodies be carried out to assess the feasibility of a single Oireachtas-specific Act to define accountability of Oireachtas committees.

2. Going beyond the witness invitation

The Court ruled that it will find a committee has acted unlawfully if it departs significantly from the terms of invitation to a witness. In the examination of a hearing’s fairness, the Court will examine the conduct of committees as a whole rather than tat of individual members. Invitations are not expected to be a “formal legal document” but a “letter of invitation which should be interpreted as a reasonable recipient of the letter concerned might be expected to read it”.

The Working Group’s four recommendations under this remit are:

1. Committee chairs and clerks should receive training on the importance of advance notice of areas for question for witnesses.
2. Chairs and committees should all be made aware of the content of invitations.
3. The establishment of a clear process for witnesses to raise a complaint to the chair.
4. Training should be provided to chairs and clerks on the need to formally record conversations with witnesses.

3. Conduct of meetings and the invitation

The Court ruled that the Oireachtas can specify the way business should be conducted and the powers of any committee’s chair “to ensure the committee concerned operates properly within the scope both of its remit and of any invitation issued to an attending citizen”. The Court said that a court will intervene when unfair conduct represents the committee as a whole rather than any individual members.

The Working Group made four recommendations under this remit:

1. Standing Orders be amended to provide detail on the role and responsibilities of the chair.
2. Standing Orders and Witness Protocol be amended to strengthen the role of the chair.
3. Witness Protocol be revised to “emphasise the importance of the base rights of witnesses”.
4. Training be provided to chairs and members on appropriate conduct.

4. Lack of remedy

The Court ruled that it will intervene where no other remedy is available; the Oireachtas will put in place a remedy where it can.

The Working Group recommended six actions under this remit:

1. The establishment of a process in Standing Orders by which a witness can raise points of order with the chair during a meeting.
2. The establishment of a process in Standing Orders whereby consequences arise for members who do not respect points of order by the chair.
3. The establishment of a process whereby a witness can complain that a committee meeting has adversely affected them.
4. The Witness Protocol be formally adopted by an oversight committee.
5. Training be provided to chairs on the rights of witnesses before committee meetings.
6. All witnesses be made aware of the Witness Protocol.

5. Other recommendations

The Working Group also made five other recommendations that arose from analysis of witness submissions:

1. That Oireachtas.ie be kept up to date with each committee’s terms of reference.
2. That the Witness Protocol be amended to provide for terms of reference being given to witnesses in advance of meetings.
3. Training be provided to chairs and clerks on the provisions of the Witness Protocols.
4. Witness Protocol be strengthened in terms of witness protection.
5. The Witness Protocol e amended to provide for reasons to be given to the witness if provisions regarding notice periods, advance notice of documents and witnesses are not met.