PAC powers questioned
eolas reports on how the Kerins case exposes the relative weakness of Oireachtas committees when summoning and questioning witnesses.
The forthcoming case by Angela Kerins against members of the Public Accounts Committee (PAC) again highlights its lack of powers for holding government or other witnesses to account.
The former Rehab CEO, who resigned after scrutiny by the Public Accounts Committee (PAC), is taking legal action against all 13 TDs who were members of the committee at the time of her hearing in February. She is also seeking a judicial review to bar further investigations into her salary and conduct.
Rehab was questioned as two-thirds of its turnover (€80 million in 2012) came from State funds, including part of Kerins’ salary. However, the PAC can only issue a report on a body which is audited by the Comptroller and Auditor General and Rehab falls outside this remit.
PAC members maintain that they have a right to query all uses of public money, including payments made under contracts to the private and voluntary sector.
Kerins is defended by Eames Solicitors and John Rogers SC, a former Attorney General who took forward the Abbeylara case in 2001. That judgment found that an Oireachtas committee investigation – into the shooting of John Carthy by gardaí – was unconstitutional.
Under standing orders, the Dáil may appoint a select committee to consider and (if permitted) to take evidence on any matter and “report its opinion for the information and assistance of the Dáil.” However, any investigation must be limited to the terms of reference set out by the House.
Subject to a vote, the select committee has the power to:
• take oral and written evidence;
• invite and accept written submissions;
• appoint sub-committees;
• draft recommendations for legislative change and new legislation;
• seek specialist or technical advice;
• undertake travel;
• call a Minister or Minister of State to discuss policy and legislation; and
• call principal office-holders in bodies which are partly or wholly funded by the State.
A Minister or office-holder is free to decline to attend by stating reasons in writing to the committee.
The PAC has similar powers and Angela Kerins attended in a voluntary capacity as there was no specific power to call private citizens. It has a particular remit to report on “the accounts showing the appropriation of the sums granted by the Dáil” and “such other accounts as they see fit” as long as these are audited by the Comptroller and Auditor General. It can also consider the Comptroller and Auditor General’s reports into those accounts.
Constitution
The proposed 30th amendment of Bunreacht na hÉireann would have allowed the Dáil and Seanad to conduct inquiries “in a manner provided for by law, into any matter stated by the House or Houses concerned to be of general public importance.”
During such an inquiry, members could investigate “the conduct of any person” and the House or “may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.”
The third aspect of the amendment proved the most controversial as the House would determine “the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry.”
Left-wing TDs, the National Union of Journalists and the legal profession warned that this would give the Oireachtas – dominated by the Government – considerable power over witnesses. A cynical electorate voted down the amendment by 53 to 47 per cent in October 2011.
The issue of committee powers was then taken up in a more limited way in a Constitutional Convention’s report published in March. The convention recommended:
• proportionate allocation of chairs and a secret ballot for their election (rather than appointment by the whips);
• the allocation of more technical and professional resources;
• the power to call An Taoiseach before a working group of chairs (David Cameron appears a similar Commons committee twice a year); and
• a committee week during each sitting month of Dáil Éireann.
The report has now been referred to the Government. As the Oireachtas is ultimately regulated by the Constitution, it is likely that committees will only receive significant new powers if and when the public votes in favour.
House of Commons committees have the power to call for persons and papers and regularly call witnesses from across society. Those called almost always turn up, not least to ensure that their version of events is heard and recorded.
If a witnessed refused, he or she would be in contempt of Parliament and could be called to the House for a formal reprimand. This last occurred in 1957 but the issue arose again in June when Sinn Féin MLA Gerry Kelly refused to give oral evidence to the Northern Ireland Affairs Committee.
Kelly had been called as he was the intermediary between the UK Government and on-the-run IRA suspects. Committee Chairman Laurence Robertson subsequently wrote to Kelly to clarify his written evidence and publicly stated that he was “ready and willing to discuss this matter further”.
The Kerins case will be heard at the High Court on 4 November.
Membership
The PAC is chaired by John McGuinness (Fíanna Fáil), assisted by Vice-Chairman Kieran O’Donnell (Fine Gael). At the time of the Rehab hearing, its other Fine Gael members were Áine Collins, Paul Connaughton, John Deasy, Eoghan Murphy and Simon Harris. Labour had three members: Robert Dowds, Gerald Nash and Derek Nolan. Harris and Nolan have subsequently become ministers of state. The other opposition members are Sinn Féin’s Mary Lou McDonald and independent TD Shane Ross.
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