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Lawlor v. Flood [1999] IESC 67 (8th October, 1999)

THE SUPREME COURT
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Murphy J.
149/99

BETWEEN:
LIAM LAWLOR
Applicant/Respondent
and

MR. JUSTICE FEARGUS FLOOD, THE SOLE MEMBER
OF THE TRIBUNAL OF INQUIRY into CERTAIN
PLANNING MATTERS AND PAYMENT
Respondent/Appellant

[Judgments by Hamilton C.J., Denham and Murphy JJ.; Barrington and Keane JJ. agreed with Hamilton C.J.]

Judgment of Hamilton C.J. handed down on the 8th day of October 1999

1. The Respondent herein is Mr. Liam Lawlor T.D. who is and was at all relevant times a member of Dáil Éireann and will be hereinafter referred to as Mr. Lawlor.


2. The Appellant herein is the Hon. Mr. Justice Feargus Flood who is and was at all relevant times the Sole Member of the Tribunal of Inquiry into


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3. Certain Planning Matters and Payments having been appointed thereto by Instrument of the Minister for the Environment and Local Government dated the 4th day of November 1997 as amended by further Instrument dated the 15th day of July, 1998 and who will hereafter be referred to as the Sole Member.


4. These Instruments were made in pursuance of Resolutions passed by Dáil Éireann on the 7th day of October, 1997 and by Seanad Eireann on the 8th day of October, 1997 and by further Resolutions passed in Dáil Éireann on the 1st day of July, 1998 and by Seanad Eireann on the 2nd day of July, 1998 extending the terms of reference of the tribunal.


5. The terms of reference of the tribunal material to the present appeal are set out in section A subsection 5 of the Resolutions passed on the 7th day of October, 1997 and are in the following terms:-


“In the event that the tribunal in the course of its inquiries is made aware of any acts associated with the planning process committed on or after the 20th June, 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such

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acts and shall in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries.”

6. In the course of his conduct of the said Inquiry, the Sole Member, did on the 26th day of April 1999 make three orders directed to Mr. Lawlor.


7. The first of such orders was in the following terms:-


“IT IS ORDERED pursuant to section 4 of the Tribunals of Inquiry (Evidence) Act 1979 that Liam Lawlor TD. of ‘Somerton’, Lucan, County Dublin do attend at the offices of the Tribunal to answer questions put to him by Counsel to the Tribunal relating to matters being inquired into by the Tribunal, at a date and time to be agreed with a Tribunal Solicitor or, in default of such agreement, at a date and time to be fixed by me (the Sole Member).” (Hereinafter referred to as ‘the first order’).

8. The second of the said orders was in the following terms:-


“IT IS ORDERED that Liam Lawlor TD. of ‘Somerton’, Lucan, County Dublin do on or before the 10th day of May 1999 furnish

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(4)

to a Solicitor acting for the Tribunal at the Offices of the Tribunal into Certain Planning Matters and Payments, State Apartments, Upper Yard, Dublin Castle, Dublin 2 an affidavit stating the name(s) of any company(s) of which was [sic] between 1st January 1987 and 31st December 1994 a shareholder or director or in which he had a beneficial interest and giving details of any such shareholding or directorship.

(Hereinafter referred to as ‘the second order’).

The third of these orders was in the following terms:-

“On the 26th day of April 1999, the Sole Member further ordered as follows:-

IT IS ORDERED that Liam Lawlor TD. of ‘Somerton’, Lucan, County Dublin do on or before the 18th day of May 1999 or within such other period as may be allowed by the Tribunal make discovery of and produce to a Solicitor acting for the Tribunal at the Offices of the Tribunal into Certain Planning Matters and Payments, State Apartments, Upper Yard, Dublin Castle, Dublin 2:-

1. All documents relating to any accounts held by or on behalf or for the benefit of Mr. Liam Lawlor, whether in his own name or

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otherwise, in any bank, building society or other financial institution, either within or outside the state between the 1st day of January 1987 and the 31st day of December 1994, including (but not confined to) statements of account, correspondence, cheque counterfoils, paid and returned cheques, deposit receipts, withdrawal receipts and deposit books and records.

2. All documents and records relating to the payment to Mr. Liam Lawlor of any monies by Arlington Securities plc. and/or Mr. Thomas Gilmartin or by anybody on their behalf

3. All documents and records relating to the negotiation of any cheques given to Mr. Liam Lawlor by or on behalf of the said Arlington Securities plc. and/or Mr. Thomas Gilmartin.

4. All documents and records relating to the provision of any services by Mr. Liam Lawlor to the said Arlington Securities plc. and/or Mr. Thomas Gilmartin including (but not confined to) contracts, correspondence, memoranda, reports, advices, minutes of meetings or instructions.”

(Hereinafter referred to as the ‘third order’).

9. On the 20th day of May 1990, Counsel on behalf of Mr. Lawlor sought and was granted leave of the High Court (Kelly J.) to apply by way of an application for judicial review for the following reliefs:-


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(a) A Declaration that he was entitled to be furnished by the Respondent (the Sole Member) with the text of allegations made against him or statements adverse to him in sufficient detail to permit him now to address such allegations or statements to the extent necessary and in particular to make detailed submissions in respect of any order contemplated by the learned Respondent (Sole Member);

(b) An Order quashing the first order referred to above;

(c) An Order quashing the third order referred to above;

(d) An Order quashing the second order referred to above.

10. The grounds upon which relief was sought were as set forth in the Statement of Grounds dated the 19th day of May 1999 as follows:-


“(i) The Order referred to at Paragraph (2) above of the learned Respondent was made without or in excess of jurisdiction.

(ii) The Order referred to at Paragraph (3) above of the learned Respondent was made without or in excess of jurisdiction.

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(iii) The Order referred to at Paragraph (4) above of the learned Respondent was made without or in excess of jurisdiction having regard to its scope.

(iv) If which is denied the learned Respondent had jurisdiction to make the said several Orders or any of them, the said Orders were made other than in due course of law and without regard to the natural and constitutional rights of the Applicant in that they were made without furnishing to the Applicant any or any reasonable detail of the factual basis said to require them to be made so that the Applicant could address those matters as to the necessity for the making of the said Orders or any of them and as to their scope.

(v) If which is denied, the learned Respondent had jurisdiction to make an Order of the nature of the Order referred to at paragraph (2) above made the 26th day of April, 1999, he had no jurisdiction to provide that the Applicant answer questions or provide information other than to and in the presence of the learned Respondent as sole member of a Tribunal of Inquiry.”

11. In accordance with the provisions of the relevant Rules of the Superior Courts the Sole Member did on the 31st day of May, 1999 file a Statement of


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12. Grounds of Opposition, which statement was verified by the affidavit of Máire Anne Howard sworn on the 31st day of May, 1999.


13. The said grounds included the following, which appear to be relevant to this appeal,


“1. The decision of the Respondent made on the 26th day of April 1999 pursuant to Section 4 of the Tribunals of Inquiry (Evidence) Act, 1979 that the Applicant herein do attend at the offices of the Tribunal to answer questions put to him by Counsel to the Tribunal relating to matters being inquired into by the Tribunal was:

(a) Intra Vires the provisions of the Section 1(1 )(a)(a) of the Tribunals of Inquiry (Evidence) Act 1921 as adapted and amended, and/or

(b) Intra vires the provisions of Order 39 Rule 4 of the Rules of the Superior Courts and/or

(c) Intra vires the provisions of Section 4 of the Tribunals of Inquiry (Evidence) Act 1979.

2. The decision of the Respondent made on the 26th day of April 1999 that the Applicant herein do on or before the 10th May 1999 furnish to a Solicitor acting for the Tribunal at the offices of the Tribunal, an

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affidavit stating the name(s) of any company(s) of which he was between 1 st of January 1997 and 31st December 1994 a shareholder or director or in which he had a beneficial interest and giving details of any such shareholding or directorship was:

(a) Intra vires the provisions of Section 1(1 )(b) of the Tribunals of Inquiry (Evidence) Act 1921 as adapted and amended and/or

(b) Intra vires the provisions of Section 1(4) of the Tribunals of Inquiry (Evidence) Act 1921 as inserted by Section 2 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 and/or

(c) Intra vires the provisions of Section 4 of the Tribunals of Inquiry (Evidence)(Amendment) Act 1979.

3. The decision of the Respondent made on the 26th April 1999 that the Applicant herein do on or before the 18th day of May 1999 or within such other period as may be allowed by the Tribunal make discovery of and produce to a Solicitor acting for the Tribunal the categories of documents set out in paragraphs 1 to 4 of that Order was:-

(a) Intra vires the provisions of Section 1(1 )(b) of the Tribunals of Inquiry (Evidence) Act 1921 as adapted and amended and/or

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(b) Intra vires the provisions of Section 1(4) of the Tribunals of Inquiry (Evidence) Act 1921 as inserted by Section 2 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 and/or

(c) Intra vires the provisions of Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979.

4. A Tribunal of Inquiry established pursuant to the Tribunal of Inquiry (Evidence) Acts 1921 to 1997 may devise it’s [sic] own mode of practice and procedure in relation to its inquiry work.

5. A Tribunal of Inquiry established pursuant to the Tribunals of Inquiry (Evidences) Acts 1921 to 1997 is not required to adopt the lis inter partes procedure in it’s [sic] confidential preliminary investigations.

10. The Respondent decided that it was necessary to make the Orders in suit for the purpose of it’s [sic] functions and for the reasons set out in the Respondents [sic] Ruling dated the 26th day of April 1999.”

14. The issue was heard by the High Court (Kearns J.) on the 8th, 9th, 10th, 11th, 15th, 16th, 17th and 18th days of June 1999 and judgment was delivered on the 2nd July 1999.


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15. The learned trial judge for the reasons set forth in his judgment made Orders


(i) quashing the Order dated the 26th day of April 1999 requiring Mr. Lawlor to attend at the offices of the Tribunal and to answer questions put to him by Counsel to the Tribunal relating to matters being inquired into by the Tribunal; (‘the first order’)

(ii) quashing the Order dated the 26th day of April 1999 directing Mr. Lawlor to furnish to a Solicitor acting for the Tribunal on or before the 10th day of May 1999 an affidavit stating the name(s) of any company(s) of which he was between the 1st day of January 1987 and the 31st day of December 1994 a shareholder or director or in which he had a beneficial interest and giving details of any such shareholding or directorship. (‘the second order’)

16. The learned trial judge refused the relief sought by Mr. Lawlor in respect of the third order and there is no appeal against such refusal.


17. The learned trial judge held that the orders which he had ordered to be quashed were made by the Sole Member in excess of the jurisdiction conferred on him by Section 4 of the Tribunals (Evidence) (Amendment) Act 1979 (hereinafter referred to as the 1979 Act), which said section provides that


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“A Tribunal may make such orders as it considers necessary for the purposes of its functions, and shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders.

In the course of his judgment, the learned trial judge, having reviewed the submissions made by both parties and the authorities referred to, stated, in relation to the first order, that

“In my view, Section 4 is to be construed as entitling a Tribunal, within its terms of reference, to make such Orders as it considers necessary for the performance of its functions. In so doing, they have the powers of the High Court, including the inherent powers of that Court, but they do not have powers, rights or privileges greater than those of the High Court. The power contended for on behalf of the Respondent would require the enactment of legislation for that purpose.

In relation to the second order, the learned trial judge stated:-

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“In the absence of a clear statutory provision, it seems to me that I should quash this Order also for want of jurisdiction.”

18. The learned trial judge quashed this latter order on an alternative ground which had been submitted on behalf of Mr Lawlor viz, that before he should be obliged to swear an affidavit of the nature directed he must be afforded what the learned trial judge described as his ‘Re Haughey rights’, which rights were denied him in this particular case.


19. This latter ground only arises for consideration by this Court if the Court were to allow the Sole member’s appeal in respect of the jurisdiction issue.


20. The Sole Member has appealed to this Court against the judgment delivered and Order made by the High Court quashing the aforesaid Orders made by him on the 26th day of April 1999 and, in particular, the finding that he had made the said Orders in excess of the jurisdiction conferred on him by Section 4 of the 1979 Act.


21. The facts, including the correspondence between the Solicitor to the Tribunal and Mr Lawlor’s Solicitor and the relevant rulings by the Sole Member are set forth in detail, in the judgment of the learned trial judge.


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22. It is not necessary to set forth such facts in the course of this judgment because, as appears from the Notice of Appeal served on behalf of the Sole Member, the fundamental issue for determination by this Court relates to the jurisdiction of the Sole Member to make the aforesaid orders and the resolution of this issue depends on the interpretation of Section 4 of the Act of 1979.


The Legislative Framework

23. In order to interpret properly the effect of the terms of the said Section 4, the said section must be construed in the light of the entire of the Act of 1979 and the legislative framework of which it forms part viz, the Act of 1921, the Act of 1979 and the Act of 1997.


24. As stated by Walsh J. in East Donegal Co-operative .v. Attorney General [1970] IR 317 at page 341 of the Report:-


“The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from their context. Therefore, words or phrases which at first sight appear to be wide and general may be cut down in their construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long title.”

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25. The statutory powers which are found in these Acts are only granted to and vested in a Tribunal which has been appointed by a Minister pursuant to a resolution by both Houses of the Oireachtas that it is expedient that a tribunal be established for enquiring into a definite matter described in the Resolution as of urgent public importance and the instrument of appointment provides that the provisions of the Acts apply.


26. In the course of the written submissions made on his behalf, the Sole Member has stated:-


“The powers given to Tribunals of Inquiry for their purposes are those contained in Section 1 of the Tribunals of Inquiry (Evidence) Act 1921 and Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. Tribunals of Inquiry do not have any powers other than those contained in these two sections.

In relation however to the two orders which are the subject of the Appeal herein, it is clear from the judgment of the learned trial judge that these orders were made in pursuance of, and reliance was placed solely on, the jurisdiction conferred by Section 4 of the 1979 Act.

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The learned trial judge stated:-

“In the grounds of opposition to the Judicial Review, it was contended that the making of the Order was intra vires the provisions of Section 1(1) of the 1921 Act as amended and/or intra vires the provisions of Order 39 Rule 4 of the Rules of the Superior Courts.

However, when the hearing before this Court commenced, Counsel for the Tribunal indicated that the order was in fact made and reliance was being placed solely on the jurisdiction conferred by Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979.”

27. Though this be so, the terms of Section 4 must be considered and interpreted in the light of the provisions of the 1921 Act, the other relevant provisions of the 1979 Act because the 1979 Act was, and expressed to be, “An Act to amend the Tribunals of Inquiry (Evidence) Act, 1921” and the Act of 1997, which was also so described.


28. The provisions of Section 4 of the Act of 1979 cannot be construed in isolation.


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29. As stated by Henchy J. in the course of his judgment in The State (Lynch) .v. Cooney [1982] IR 337 at page 380:-


“It is to be presumed that, when it conferred the power, Parliament intended the power to be exercised only in a manner that would be in conformity with the Constitution and within the limitations of the power as they are to be gathered from the statutory scheme or design.”

30. Consequently it is necessary to consider the statutory scheme or design in relation to Tribunals of Inquiry of which Section 4 is part and the background against which such scheme was introduced by the Legislature.


31. This background is dealt with briefly in the report of the Royal Commission on Tribunals of Inquiry 1966 (hereinafter referred to as the Salmon Commission) under the Chairmanship of the Rt. Hon. Lord Justice Salmon which reported at paragraphs 12 and 13 as follows:-


“Even as long ago as 1888 the shortcomings of Select Parliamentary Committees of Inquiry had been recognised. In that year, serious allegations had been made against a prominent

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Parliamentarian and leader of the Irish Nationalists, Charles Stewart Parnell and others. Rather than refer the matter for investigation to a Select Parliamentary Committee, a Special Commission with special powers was set up by the Special Commission Act 1888. (51 & 52 Vict. Chap. 35)

When in 1921 grave allegations were made by a Member of Parliament against officials in the Ministry of Munitions, the favourable impression made by the Parnell Commission and the unpleasant flavour left behind by the Marconi Committee of Inquiry were remembered It was felt that the investigation by Parliamentary Committees of Inquiry of alleged public misconduct was entirely discredited, and that accordingly new machinery should be created more appropriate to deal not only with the current matter but with any similar matters which might arise in the future. Thus the Tribunals of Inquiry (Evidence) Act, 1921 was born. The widely differing nature of the circumstances in which the statute would be invoked in the future could not all be foreseen and as a matter of necessity the passage of the Bill through Parliament was somewhat hurried. As a result, there are certain omissions and shortcomings in the Act of 1921 which are dealt with later. The Act did, however, bring into existence a method of

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inquiry into allegations of public misconduct far superior to the method which had hitherto been in vogue. The Act provides that if both Houses of Parliament resolve that it is expedient that a Tribunal be established for inquiring into a definite matter described in the resolution as of urgent public importance, and in pursuance of such resolution a Tribunal is appointed either by the Crown or by a Secretary of State, then such a Tribunal for certain purposes shall have all the powers, rights, and privileges that are vested in the High Court. It can enforce the attendance of witnesses whom it may examine under oath, and it may compel the production of documents. If any person summoned as a witness fails to attend, or if he does attend refuses to answer any question to which the Tribunal may legally require an answer or fails to produce any document in his power or control which the Tribunal legally requires him to produce or does anything which would constitute contempt of court in a court of law, then the Chairman may certify the offence to the High Court which may inquire into the facts and hear evidence, including any statements that may be offered in defence. If the witness is found guilty he may be punished in the same manner as if he had committed a contempt of court. A witness before the Tribunal has the same privileges and

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immunities as in a court of law. The Tribunal may authorise any person appearing before it who appears to it to be interested to be represented by solicitor or counsel or otherwise. It is expressly provided that the public are to be admitted to all hearings unless the Tribunal finds that this is against the public interest. The Act of 1921 contains no provisions concerning the procedure to be followed by the Tribunal, nor is the Tribunal subject to the Tribunals and Inquiries Act, 1958. Nor does the Act of 1921 confer any immunity upon members of the Tribunal for what they may say in the course of the inquiry or in their report, nor upon solicitors or counsel for what they say before the Tribunal. Nor is there any provision (as there was in the Act of 1888) that answers given by a witness cannot be used against him in any criminal or civil proceedings.

Section 1(1) of the Tribunals of Inquiry (Evidence) Act 1921 (hereinafter referred to as the 1921 Act) provides as follows:-

“1. (1) Where it has been resolved (whether before or after the commencement of this Act) by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public

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importance, and in pursuance of the Resolution a tribunal is appointed for the purpose either by His Majesty or a Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may provide that this Act shall apply, and in such case the tribunal shall have all such powers, rights, and privileges as are vested in the High Court, or in Scotland the Court of Session, or a judge of either such court, on the occasion of an action in respect of the following matters:-

(a) The enforcing the attendance of witnesses and examining them on oath, affirmation, or otherwise;

(b) The compelling the production of documents;

(c) Subject to rules of court, the issuing of a commission or request to examine witnesses abroad;

and a summons signed by one or more of the members of the tribunal may be substituted for and shall be equivalent to any formal process capable of being issued in any action for enforcing the attendance of witnesses and compelling the production of documents.

The powers granted to such an Inquiry by Section 1(1) of the 1921 Act were

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“[A]ll such powers, rights and privileges as are vested in the High Court, or in Scotland, the Court of Session, or a judge of either such Court, on the occasion of an action in respect of the following matters:-

(a) The enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;

(b) The compelling the production of documents;

(c) Subject to rules of court, the issuing of a commission or request to examine witnesses abroad;”

32. It was only in respect of these matters that the Tribunal was vested with the powers, rights and privileges of the High Court.


33. Section 1(2) of the Act of 1921 has been repealed and replaced by Section 3 of the Act of 1979.


34. Section 1(3) of the Act of 1921 provides that:


“A witness before any such tribunal shall be entitled to the same immunities and privileges as f he were a witness before the High Court or the Court of Session.”

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35. This immunity was extended by the provisions of Section 2 by the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 which provided that:-


“2. Section 1 of the Principal Act is hereby amended by the insertion after subsection (3) of the following subsection:

(4) A person who produces or sends a document to any such tribunal pursuant to an order of that tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.”

Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 (hereinafter referred to as the 1997 Act) provides that

“Where a person fails or refuses to comply with or disobeys an order of a tribunal, the High Court may, on application to it in a summary manner in that behalf by the tribunal, order the person to comply with the order, and make such other order as it considers necessary and just to enable the order to have full effect.”

Section 3 of the Act of 1979 provides that:

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“The Principal Act is hereby amended by the substitution of the following subsections for subsection (2) of section 1:

(2) If a person -

(a) on being duly summoned as a witness before a tribunal, without just cause or excuse disobeys the summons, or

(b) being in attendance as a witness refuses to take an oath or to make an affirmation when legally required by the tribunal to do so, or to produce any documents (which word shall be construed in this subsection and in subsection (1) of this section as including things) in his power or control legally required by the tribunal to be produced by him, or to answer any question to which the tribunal may legally require an answer, or

(c) wilfully gives evidence to a tribunal which is material to the inquiry to which the tribunal relates and which he knows to be false or does not believe to be true, or

(d) by act or omission, obstructs or hinders the tribunal in the performance of its functions, or

(e) fails, neglects or refuses to comply with the provisions of an order made by the tribunal, or

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(f) does or omits to do any other thing and if such doing or omission would, if the tribunal had been the High Court, have been contempt of that Court, the person shall be guilty of an offence.

(2A) (a) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.

(b) A justice of the District Court shall have jurisdiction to try summarily an offence under this section if-

(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,

(ii) the Director of Public Prosecutions consents, and (iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,

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and, upon conviction under this paragraph, the said defendant shall be liable to a fine not exceeding £500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.

(c) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under this section as if in lieu of the penalties specified in subsection (3) of that section there were spec fled therein the penalties provided for by paragraph (b) of this subsection, and the reference in subsection 2(a) of that section to the penalties provided for in subsection (3) of that section shall be construed accordingly.”

Section 5 of the Act of 1979 provides that

“A statement or admission made by a person before a tribunal or when being examined in pursuance of a commission or request issued under subsection (1) of section 1 of the Principal Act shall not be admissible as evidence against that person in any criminal proceedings (other than in proceedings in relation to an offence under subsection (2)(c) (inserted by this Act) of that section) and

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subsection (3) of that section shall be construed and have effect accordingly.”

36. The provisions set forth herein constitute the statutory framework within which the provisions of Section 4 of the 1979 Act must be construed.


Nature, effect and possible consequences accruing from breach of the said orders.

37. It is also relevant to consider the nature and effect of the said orders and the possible consequences accruing to Mr Lawlor in the event of a failure by him to comply with the terms of the said orders, the making of which is claimed by the Sole Member to be within the jurisdiction conferred on him by Section 4 of the Act of 1979, for the purpose of considering whether they were of such a nature which the Legislature intended could be made by the Sole Member.


The First Order

38. This order directs Mr Lawlor to attend at the offices of the Tribunal to answer questions put to him by Counsel to the Tribunal relating to matters being inquired into by the Tribunal.


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39. By virtue of such order he is required to not only attend at the said offices but to answer questions put to him by Counsel to the Tribunal relating to the matters being inquired into by the Tribunal.


40. In the event of his failure to attend as directed or to answer the questions put to him by Counsel to the Tribunal, Mr Lawlor is, if the said order was made within jurisdiction, guilty of an offence contrary to Section 2(e) and possibly 2(d) of the Act of 1921 as amended by the Act of 1979 and liable on conviction thereof on indictment to a fine not exceeding £10,000 or at the discretion of the Court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment or upon conviction by the District Court under Section 2(b) to a fine not exceeding £500 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.


41. In addition, the Sole Member would be entitled, pursuant to the provisions of Section 4 of the 1997 Act, to apply in a summary manner to the High Court for an order directing Mr Lawlor to comply with the said Order and Mr Lawlor would be subject to such orders as the High Court considered necessary and just to enable the order to have full effect.


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42. If, in pursuance of the said order, Mr Lawlor were to attend and answer the questions put to him by Counsel to the Tribunal, he would not be entitled to the immunities and privileges to which he would be entitled pursuant to the provisions of Section 1(3) of the Act of 1921 and Section 5 of the Act of 1979 because they relate only to a “witness before any such tribunal” and to statements or admissions “before a tribunal”.


The Second Order

43. This order directs that Mr Lawlor do, on or before the 10th day of May, 1999, furnish to a Solicitor acting for the Tribunal at the office of the Tribunal an affidavit stating the name(s) of any company(s) of which he was between 1st January, 1987 and 31st December, 1994 a shareholder or director or in which he had a beneficial interest and giving details of any such shareholding or directorship.


44. This constitutes an order made by the Tribunal and, if made within jurisdiction, failure to comply therewith would render Mr Lawlor guilty of an offence contrary to Section 2(e) and possibly (d) of the Act of 1921 as amended and if convicted liable to the consequences as set out above in respect of the first order.


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Functions of the Tribunal of Inquiry

45. It is necessary to consider briefly the functions of the Sole Member as the orders sought to be quashed in these proceedings are alleged by him to have been necessary for the performance of his functions.


46. His function is to investigate the matters referred to in the Resolutions passed by both Houses of the Oireachtas, to make findings in respect thereof and report these findings to the Minister for the Environment and Local Government.


47. As stated by this Court in Haughey . v. Moriarty J . (28th July 1998) [eIWLR_1056]:-


“A Tribunal of Inquiry of this nature involves the following stages:-

1. A preliminary investigation of the evidence available;

2. The determination by the Tribunal of what it considers to be evidence relevant to the matters into which it is obliged to inquire;

3. The service of such evidence on persons likely to be effected [sic] thereby,

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4. The public hearing [sic] of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on behalf of persons effected [sic] thereby;

5. The preparation of a report and the making of recommendations based on the facts established at such public hearing.”

48. The Report of the Salmon Commission stated at page 40, paragraph 123:-


“We have no doubt that it is necessary that some power should exist, to be exercised only in the last resort, for the purpose of compelling persons to give evidence and preventing them from defying the Tribunal. This power is contained in Section (1) (2) of the Act of 1921.”

49. It also stated at paragraphs 27 and 28 that:-


“The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause

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distress and injury to reputation. For these reasons, we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate.

Normally persons cannot be brought before a tribunal and questioned save in civil or criminal proceedings. Such proceedings are hedged around by long standing and effective safeguards to protect the individual. The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, Wit exists, shall be exposed so that it may be rooted out; or Wit does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed We are satisfied that this would be difficult if not impossible without

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public investigation by an inquisitorial Tribunal possessing the powers conferred by the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and report. The task of inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public confidence can be fully restored.”

50. In this country, the powers of such tribunals were extended by the provisions of Section 4 of the Act of 1979.


51. The long title to the 1921 Act states that it is “An Act to make provision with respect to the taking of evidence before and the procedure and powers of certain Tribunals of Inquiry.”


52. Though the powers granted therein relate only to those set forth at (a), (b) and (c) of Section 1(1) thereof, they are manifestly limited to those vested in the High Court or the Court of Sessions in respect of the said matters.


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53. The Act of 1979 in its long title is described as “an Act to amend the Tribunals of Inquiry (Evidence) Act, 1921.”


54. While the Act of 1921 (Section 1(1)) was restricted to the matters referred to at (a), (b) and (c), Section 4 of the Act of 1979 extended the powers of the Tribunal by providing that “a Tribunal may make such orders as it considers necessary for the purposes of its functions.”


55. This section, however, continued;


“... and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders.”

56. It is conceded on behalf of the Sole Member that Tribunals of Inquiry do not have any powers other than those contained in Section 1 of the Act of 1921 and Section 4 of the Act of 1979 but it is submitted on his behalf that;


“In respect of the two orders made pursuant to Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (‘the first order and the second order)

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(a) The orders were, as a matter of construction, permissible under the section

(b) the orders were made for the purposes of the Tribunal’s functions as required by the section

(c) the test of necessity contained in the section itself was met.

(d) In respect of the Sole Member ‘s opinion in which he concluded that it was necessary, for the purposes of his functions, to make the said orders, the criteria set out in The (State) Lynch -v- Cooney [1982] IR 337 were fully complied with in that this opinion was:-

(i) bona fide held and
(ii) factually sustainable and
(iii) not unreasonable

(e) the orders were made within the Tribunal’s jurisdiction and do not contain any errors on their face.”

57. The submissions made at (b), (c) and (d) above only become relevant, if the Sole Member succeeds on grounds (a) and (e).


58. The Sole Member submits that by virtue of the provisions of Section 4 of the 1979 Act, he is entitled to make any orders which he considers necessary


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for the purposes of his functions including orders which could not be made by the High Court, orders the breach of which would carry criminal sanctions and orders which, in effect, deprive the person to whom they are directed of the immunities and privileges provided by Section 1(3) of the Act of 1921 and by Section 5 of the Act of 1979.

59. It is submitted on behalf of the Sole Member that the provisions of Section 4 of the 1979 Act must be divided into two parts viz, the part which provides that “A Tribunal may make such orders as it considers necessary for the purposes of its functions” and the part which provides that “it shall have in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders “; that the powers given to the tribunal by the first part are not restricted in any way by the provisions of the second part of the section to powers vested in the High Court or a judge of that Court; that there is no basis for the proposition advanced by Counsel for Mr Lawlor, and accepted by the learned Trial Judge, that the second part of the section in some way limits the extent of the powers created by the first part of the section and that the only limitation on the powers of the Sole Member to make orders under this section is that they be considered by him to be necessary ‘for the purposes of[his]functions” and that the criteria set out in The State (Lynch) .v. Cooney [1982] IR 337 be fully


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complied with; and that the power to compel a person to attend and answer questions put to him or her by Counsel to the Tribunal is analogous to the powers conferred on an inspector appointed in accordance with the provisions of the Companies Act, 1990 and in particular Section 10 and 19 thereof.

60. With regard to this latter submission, it is only necessary to point out that such powers are express statutory powers and the situation in regard thereto is significantly different to the situation in the instant case and does not provide any assistance to the interpretation of Section 4 of the Act of 1979.


Statutory Interpretation

61. In the course of his judgment the learned trial judge stated:-


“The general principles which should inform the Court’s approach are set out in East Donegal Co-operative Livestock Mart Limited & Ors. . v. Attorney General [1970] IR 317 and Howard v. Commissioners of Public Works [1993] ILRM 665.”

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In Howard at page 690 Blayney J. adopted the following passage from Craies on Statute Law (7th Edition 1971) at p. 65:-

“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. The Tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.”

62. At page 693, Blayney J. stated:-


“It was also submitted that it would be an absurd situation if the commissioners had to comply with section 84 and also obtain planning permission, but where, as here, the provisions of the

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sections are quite clear (my emphasis) the Court is obliged to give effect to them even f the effect of doing so may not appear to be entirely reasonable.

Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entrained by the Court as to what is just and expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded The duty of the Court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to others’. Maxwell on the Interpretation of Statutes at p. 29.”

63. The words of the Section relied on by the Sole Member are wide and general but as stated by Walsh J. in the East Donegal case they may be cut down in their construction when examined against the objects of the Act, and the powers granted thereby must be within the limitations of the power as they


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are to be gathered from the statutory scheme or design (Henchy J. in Lynch .v. Cooney ).

Objectives of the Acts of 1921 - 1998

64. As appears from the long title to the Act of 1921, its objective was to make provision with respect to the taking of evidence before and the procedure and powers of certain Tribunals of Inquiry.


65. It is clear from an examination of the provisions of the Act of 1921 that, having regard to the inquisitorial nature of Tribunals of Inquiry, the legislature was concerned not only to specify in detail the powers to be given to the Tribunals of Inquiry in order to enable them to perform their functions but also to ensure that witnesses before such tribunals should be granted certain privileges and immunities.


66. The powers granted to the Tribunal by the Act of 1921 were limited to those set forth at 1(1) (a), (b) and (c) of the 1921 Act and the powers granted in relation thereto were such powers, rights and privileges as were vested in the High Court on the occasion of an action and the immunities and privileges granted to a witness before a Tribunal were those which he would enjoy if he were a witness before the High Court.


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67. Such powers as were granted to the Tribunal were limited to the powers vested in the High Court on the occasion of an action and related only to the enforcement of the attendance of witnesses, their examination on oath, affirmation or otherwise and the compelling of the production of documents. It was clearly the intention of the Legislature, and so provided by the Act of 1921, that the powers given to the Tribunal were limited to, and did not exceed, the powers vested in the High Court on the occasion of an action.


68. The Tribunal’s powers were extended by Section 4 of the Act of 1979, the first part of which gave to the Tribunal the power to make ‘such orders as it considers necessary for the purposes of its functions’.


69. If the submissions made on behalf of the Sole Member are correct, the effect of the Section is to give to the Sole Member wide and sweeping powers fettered only by the restriction that they are considered by him to be necessary for the purpose of his functions, and to give to him powers which are not vested in the High Court or any judge thereof.


70. The Act of 1979 did not purport in any way to amend the provisions of Section 1(1) of the Act of 1921. If the interpretation of Section 4 of the Act of 1979 contended for by the Sole Member is the correct one, this would lead to a


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situation where in respect of the important powers vested in him by Section 1(1) of the Act of 1921 in regard to enforcing the attendance of witnesses and examining them on oath or otherwise, compelling the production of documents and the issuing of a commission or request to examine witnesses abroad, he would be limited to the powers vested in the High Court to make orders in respect thereof but in respect of other orders, he would not be so limited or in the alternative, that the restriction on his powers contained in the provisions of Section 1(1) of the Act of 1921 would be removed and they would no longer be limited to those vested in the High Court.

71. If the Legislature had intended to so fundamentally alter the nature of the powers given to the Tribunal it would, or should, have so stated in clear and unambiguous terms.


72. It did not do so but provided in relation to an order permitted by Section 4 that


“it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders”

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73. This Section must be interpreted as a whole and in the context of the relevant legislation and as so interpreted cannot be interpreted as giving to a tribunal powers in excess of those vested in the High Court in the course of an action.


74. Two paragraphs in the judgments of the Supreme Court in Goodman International . v. Mr. Justice Hamilton [1992] 2 IR 542 appear to emphasise the limited scope of the powers conferred on the tribunal by Section 4 of the 1979 Act. The first passage appears at page 601 of the judgment of Hederman J. and reads as follows:-


“Reference was made to certain sections of the Act of 1979 as indicating that this Tribunal was administering justice. In particular, reference was made to Section 4 which provides:-

‘A tribunal may make such orders as it considers necessary for the purpose of its function, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court in respect of the making of orders’.”

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75. The second passage appears at page 605 in the judgment of McCarthy J. and reads as follows:-


“Section 4 authorises a tribunal to make such orders as it considers necessary ‘for the purposes of its functions”. The purposes of its functions are to carry out the remit of Parliament. This may involve the issuing of witness summonses in accordance with s. 1, sub-s. 1 of the Act of 1921, inspection of particular places, the taking of a shorthand note, arrangements for sittings, the printing of its report and so on.

The principal powers of the tribunal are to enforce the attendance of witnesses; to provide for their examination before the tribunal and to compel the production of documents. It may well be that some citizens may volunteer the supply of Statements of Evidence or other documents to the tribunal. It may also be that some witnesses faced with the prospect of a subpoena from the tribunal may prefer to furnish a statement or documents to the tribunal’s solicitor or his clerk. The Tribunal may be prepared, initially, to accept from a potential witness a list or affidavit of documents. All these are matters for arrangement between the tribunal and the witnesses concerned should it appear practicable. But when it comes to the formal exercise by the tribunal of its

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powers to examine witnesses this must be done by the Tribunal itself and, except as provided by law, must be done in public.

Apart from these considerations, the significant powers conferred by the Acts of 1921 and 1979 on the Tribunal are vested in the Tribunal alone. If the submissions advanced on behalf of the sole member were well founded, it would inevitably follow that the critically important power of examining witnesses summoned before it on oath, affirmation or otherwise could be exercised by a person other than the Tribunal, i.e. counsel acting on its behalf. No doubt it was envisaged that the Tribunal, for the purpose of carrying out the inquiry mandated by the resolutions of both houses of parliament, could retain persons to act on its behalf, both in the gathering of evidence and its adduction before the Tribunal or to carry out the administrative requirements of the Tribunal. If, however, the legislature had intended that the Tribunal was entitled to delegate the exercise of the powers expressly vested in it to examine witnesses summoned before it to a person other than a member of the Tribunal, it would have said so in clear and unambiguous language. Far from that being the case, there is nothing in the language of either the 1921 Act or the 1979 Act to suggest that such was the intention of the legislature.

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Finally, reference should be made to the decision of the High Court (Blayney J.) in Kiberd .v. Mr. Justice Hamilton [1992] 2 IR 257. In that case, two journalists were required to appear before the Tribunal of Inquiry into the Beef Industry and produce to the tribunal the material on which certain articles written and published by them were based. The jurisdiction of the Tribunal to make the orders in question having been challenged, their validity was upheld in judicial review proceedings by Blayney J.

Raving quoted Section 4 of the Act of 1979, Blayney J. went on:-

“I do not think there is any real doubt as to how the section should be construed Its terms are very clear:-

‘A Tribunal may make such orders as it considers necessary for the purposes of its functions.’

76. It is not necessary to consider the second part of the section. The section gives the Tribunal power to make a certain category of orders, the nature of the orders being such as it considers necessary for the purposes of its functions. So, for an order to come within the power given by the section, it must be one which the Tribunal considers necessary for the purposes of its functions.


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77. Or to express it in a different way, whenever the Tribunal considers - which is the equivalent to saying ‘is of opinion’ - that it is necessary for the purposes of its functions to make a particular order, it has power to do so under the section.”


78. Kearns J. in his judgment in the present case distinguished that decision on two grounds, viz, that the order made by the Tribunal in that case was in any event one which could have been made by the High Court and that there was also no question of the exercise of the power being delegated to any person other than the sole member of the Tribunal. He was undoubtedly correct in so holding. It should also be said, however, that, if the learned High Court judge in Kiberd .v. Mr. Justice Hamilton was intending to convey in the passage cited that the Tribunal had powers more extensive than those vested in the High Court - and it is not necessarily the case that he was - then that statement, for the reasons already set out in this judgment, was clearly erroneous and should not be followed.


79. The High Court has no jurisdiction to make orders of the nature impugned in this case. Neither has the Sole Member.


80. I would dismiss the appeal and affirm the order of the High Court.


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THE SUPREME COURT
No. 197/ J.R 1999
Appeal No. 149/99
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Murphy J.

BETWEEN
LIAM LAWLOR
APPLICANT/RESPONDENT
AND

MR JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS
RESPONDENT/APPELLANT

Judgment of Denham J delivered the 8th day of October, 1999.

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81. The facts have been set out by the Chief Justice. The Applicant/Respondent (hereinafter referred to as the Applicant) sought Judicial Review of orders of the Respondent/Appellant (hereinafter referred to as the Tribunal) which (a) required the Applicant to attend at the offices of the Tribunal to answer questions put to him by Counsel to the Tribunal relating to matters being inquired into by the Tribunal and (b) required the Applicant to furnish to a solicitor acting for the Tribunal an affidavit stating the names of any companies of which he was a shareholder or director or in which he had a beneficial interest between 1st January 1987 and 31st December, 1994 and giving details of any such shareholding or directorship. Both orders were quashed by the High Court for want of jurisdiction in light of the wording of Section 4, Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (hereinafter referred to as “the Act”).


82. In relation to the first order, set out at (a) above, the issue is whether the Sole Member can be absent when counsel put questions to the Applicant, i.e. whether the questioning can be delegated to counsel. The order set out at (b) is self explanatory. Both orders in question would be in excess of the jurisdiction of a High Court Judge.


83. The issue on this appeal is whether the Learned High Court Judge erred in determining that the Tribunal acted in excess of the jurisdiction conferred by Section 4 of the Act. Thus Section 4 of the Act falls to be construed. There is no challenge to the validity of Section 4.


84. The powers of a Tribunal are those conferred by legislation. The fact that the Sole Member is a Judge of the High Court is not relevant to the determination of his jurisdiction as Sole Member of the Tribunal of Inquiry. The Tribunal in this case acquires the jurisdiction in question from Section 4 of the Act. Section 4 creates the jurisdiction in question and states:


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“A tribunal may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders.”

85. The Tribunal submitted that the orders were permissible, that the first part of the section creates powers for Tribunals of Inquiry to make orders, that the orders which may be made are left to the discretion of the Tribunal but are limited by reference to the test of necessity, to the functions set out in the Tribunal’s terms of reference and are subject to the criteria set out in The State (Lynch) v. Cooney [1982] IR 337. The second part of the section, it was submitted, means that Tribunals which make such orders have the same powers, rights and privileges as a Judge of the High Court in respect of the making of the orders. This construction of the section would give to the Tribunal very wide-ranging powers.


86. On the other hand the Applicant submitted that the words of the section were not disjunctive but rather conjunctive and that the second part of the section was explanatory. This was the finding of the Learned High Court Judge.


87. In construing Section 4 of the Act the clear and unambiguous meaning of the words should be sought first of all. Initially the section gives to the Tribunal power, stating:


“A tribunal may make such orders as it considers necessary for the purposes of its functions, ...“

88. This is a clear statutory placement of power. If the sentence concluded there it would be giving to the Tribunal extensive powers. However, the section does not end there. The section continues:


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“and it shall have, ...“.

89. The word “it” in this phrase clearly refers to the Tribunal. So the Tribunal is given these powers. The section then continues:


“in relation to their making,

This is a clear reference back, by the use of the word “their”, to the orders enabled under the first part of the section.

There was legal argument as to whether these words were conjunctive or disjunctive to the balance of the section. The section concludes;

“... all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders”.

90. This phrase does not stand on its own. It is dependent on the initial part of the section. It is explanatory and a limitation of the first part of the section. This conjunctivity is enhanced by the word “and” in the phrase:


“and it shall have, in relation to their making, ...“.

91. Thus, taking the plain meaning of the words, the section gives to the Tribunal the same powers, rights and privileges as a High Court Judge in relation to the making of orders, it clarifies the situation.


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92. The plain and unambiguous words render the interpretation of Section 4 of the Act clear. It gives to the Tribunal the procedural powers which may be exercised by a Judge of the High Court. If the interpretation sought by the Tribunal is correct it would require that the words:


“... and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders”

be ignored or effectively deleted. If these words were not present the powers given to the Tribunal would not be so limited. However, the phrases were placed in the section by the Oireachtas and they do explain and limit the said power given to the Tribunal to those of a High Court Judge.

93. The words of the statute are clear and unambiguous. Thus, the ordinary sense of the words should be applied. The words state clearly that the Tribunal would have powers, rights and privileges of a High Court Judge in respect of the making of orders it considers necessary for the purposes of its functions. The Tribunal is not given powers in excess of a High Court Judge. The powers given to a Tribunal are those


“as are vested in the High Court or a judge of that Court”.

94. As the plain words make clear the meaning and intent of the section it is unnecessary to apply any further canons of construction. Also, as the section is not ambiguous, there is no necessity to have regard to external material. Further, as the section is not addressed to a particular body in a way in which it could be construed to have a distinct


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meaning the ordinary meaning may be applied: Minister for Industry and Commerce v. Pim Brothers Ltd. [19661 IR 154.

95. In applying the ordinary meaning of the words the Court is enforcing the clear intention of the legislature. This aspect of statutory construction is an essential part of the separation of powers. Further, it is an illustration of appropriate respect by one organ of government to another. The legislature has passed legislation establishing the Tribunal and given it terms of reference and a jurisdiction.


96. There is no necessity to step beyond the literal approach. There is no ambiguity. The literal interpretation of the section does not give rise to an absurd or unreasonable interpretation. The purpose of the legislature is not in doubt. If the legislature had intended to give the extensive powers argued for by the Tribunal it would have legislated for that separately and clearly.


97. A Tribunal of Inquiry is established to inquire into a definite matter of urgent public importance. The stages of the inquiry were set out by the Supreme Court in Haughey v. Moriarty . Supreme Court, unreported, 28th July, 1998 [eIWLR_1056], Pp. 169-170 (No. 103/1998) and affirmed in Redmond v. Flood [1999] 1 ILRM 241 , p.255-56 [eIWLR_1211] where it was stated:


“A tribunal of inquiry of this nature involves the following stages:

1. A preliminary investigation of the evidence available;
2. The determination by the tribunal of what it considers to be evidence relevant to the matters into which it is obliged to inquire;
3. The service of such evidence on persons likely to be affected thereby;
4. The public hearings of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on behalf of persons affected thereby;
5. The preparation of a report and the making of recommendations based on the facts established at such public hearing.”

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98. The initial stages include steps such as discovery and information given by consent. If in the initial process information requested is not amenable by consent to the staff of the Tribunal then it is necessary for the Tribunal to move on to the next stage, to call witnesses and to inquire into the matter filly at a sitting of the Tribunal - whether in public or private, as appropriate. It is not a matter to be delegated by the Tribunal to anybody.


99. The difference between proceedings in Court (and being a party thereto) and a Tribunal of Inquiry to which a person is called to give evidence is important. The Tribunal hearing is not criminal trial, nor is it even a civil trial, nor is the person a party. The hearing is an inquiry to which the person is a witness.


100. The fact that the Tribunal itself inquires into the matters rather than its counsel illustrates also that the purpose of the legislature is not thwarted in any way by the literal approach to the section. The Tribunal itself was established to inquire into certain matters. Whilst preliminary work is necessary (and indeed may be in ease of many persons by excluding them from the public hearings) the effect of the literal interpretation is that if a person does not subject themselves voluntarily to be questioned by counsel or staff of the Tribunal or other preliminary work, then the matter moves on to the Tribunal’s most important stage - that of public hearings. The person is then liable to be called as a witness before the public hearing which hearing may range more widely in the absence of preliminary work.


Conclusion

101. I am satisfied that the correct construction of Section 4 is the literal one. The section ensured that the Tribunal had the procedural powers of a High Court Judge, that the


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102. Tribunal in exercising its powers would do so in a manner analogous to the High Court. It did not give to the Tribunal greater powers than a High Court Judge. Thus, the Tribunal does not have the jurisdiction to make the two orders in issue. I would affirm the order of the High Court and dismiss the appeal.



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THE SUPREME COURT
149/99
JUDICIAL REVIEW
Hamilton CJ
Denham J
Barrington J
Keane J
Murphy J
Between:
LIAM LAWLOR
APPLICANT/RESPONDENT
.v.

MR JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE
TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENT/APPELLANT

Judgment of Mr Justice Francis D Murphy delivered the 8th Day of October 1999

103. I agree with the judgment delivered by the Chief Justice and the Order which he has proposed. To avoid unnecessary repetition I would respectfully adopt the history of the matter as outlined in his judgment and the terminology and abbreviations incorporated therein.


104. Mr Justice Kearns quashed the first Order and third Orders made by the Sole Member on the the grounds that he, the Sole Member, had no jurisdiction to make those orders. It is that conclusion which the judgment of the Chief Justice upholds. However, the learned trial Judge having determined to quash the third order on the basis that the Sole Member had no


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jurisdiction to make such order went on to say (at page 71 of the transcript of the judgment) that:-

“Again, if I am in error in so holding, I would hold in favour of Mr Hardiman's submission on fair procedures in relation to the point in time where the Applicant’s Re Haughey rights accrue, namely, in this situation, where the Applicant is obliged to commit himself in an affidavit as to facts. An affidavit sworn by a person in the Applicant’s position requires him to commit himself in a form and manner which clearly will form part of the evidence before the Tribunal and may consist of material either to build a case against him or on which he may be later cross-examined. It is not therefore confined in its intended user or effect to the preliminary stage of the investigation but has a very real capacity to be a document of major significance at public hearings or perhaps in some other forum to the detriment of the Applicant.

Without knowing the full detail of the case made against him, the Applicant is in effect, being ordered to make a case against himself either by virtue of the matters which he deposes in the affidavit or by his omissions. He could be seriously disadvantaged at the public hearing had he sworn an affidavit at an earlier stage which was significantly deficient in any respect for reasons of which he might not have known at the time of making the affidavit.

It seems to me that in this situation, the supposed demarcation line between the preliminary investigation work and full public hearings is transgressed. Accordingly,

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before the Applicant is required to swear such an affidavit, he must be afforded his re Haughey rights. As the Respondent has made it quite clear that such rights will not be afforded at this juncture. I would feel obliged to quash the order made on this alternative ground also.”

105. That part of the judgment of the learned trial Judge was clearly obiter. Any views expressed by this Court on that aspect of the judgment would be subject to the same qualification. Furthermore, this Court did not have the advantage of hearing argument in relation to the principles discussed in the passage quoted from the judgment of the learned trial Judge: it was possible for this Court to confine the oral submissions to the issue of jurisdiction. Nevertheless I believe that it is desirable that I should record my doubts as to the correctness of the conclusions of the learned trial Judge on the application of the principles of natural and constitutional justice to the conduct of the business of the Tribunal.


106. Many of the essential requirements for the proper administration of justice have been identified and accepted over several millennia. Professor John M Kelly discussed in an essay in the Natural Law Forum (Vol 9 page 103) the application in ancient Greece of the principle now known as audi alterampartem. Other writers have drawn attention to the enunciation of that same principle in the Scriptures (see John, VII, 51). The antiquity of the principle and the wide acceptance of its application may indeed justify the epithet “natural” to the right which it confers. However, the legal, as opposed to the moral importance of the principle, derived from the acceptance of it as part of the common law in decisions recorded in the Year Books and reaffirmed more authoritatively in the course of the 19th Century. In this jurisdiction there is no doubt that the administration of justice requires the application of


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these ancient principles reformed and reinforced by the provisions of the Constitution. No doubt the two great precepts of natural justice are the requirements, first, that the adjudicating body should not be a judge in his own cause and, secondly, that nobody should be condemned to any sanction, civil or criminal, without being afforded an opportunity of being heard. However, those two principles are themselves subject to exceptions of which the ex parte application is an obvious example. If the requirements of fair procedures may be reduced in some cases they may be expanded in others. In the State (Healy) v. Donoghue [1976] IR 350 Chief Justice O’Higgins explained that the requirements of fairness and of justice were required to be considered in relation to the seriousness of the criminal charge brought against a person and the consequences involved for him. The gravity of the charge and circumstances of the accused might require - as they did in that case - that the person charged should be afforded the opportunity of being legally represented.

107. The particular requirement of natural justice that a party should be forewarned of the claim or charge made against him or her is secured in the case of civil proceedings by the Rules of the Superior Courts which provide for pleadings, particulars, interrogatories and discovery and in the case of a criminal charge by legislation which requires, in the case of a prosecution on indictment, not merely particulars of the charges but also delivery of a book of evidence. Different, but adequate, provision is made to safeguard the interest of persons charged with minor offences tried in a summary manner. In practice, justice as administered by the Courts set up under the Constitution and operated in an adversarial system effectively guarantees to the defendant or accused an adequate opportunity of knowing and meeting the case to be made against him.


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108. The belief that the principles of natural justice, or some of them at any rate, applied to tribunals, bodies, associations or persons empowered by statute or contract to make decisions determinative of the property rights of particulars persons or categories of persons ebbed and flowed throughout the 19th Century but is now well established in this jurisdiction. The decision of Kenny J (affirmed by this Court) in BLN v. Glover [1973] IR 388 illustrates the extensive range of bodies to which the requirements of natural justice may be applicable. [hat was the case in which the board of directors of a commercial company were held to be n breach of the requirements of the appropriate standards of justice by failing to give their employee adequate notice of the charges made against him before concluding that his conduct warranted summary dismissal.


109. A question remains as to the extent to which the rules of natural and constitutional justice are applicable to an inquiry governed by the provisions of the 1921 and 1979 Acts. It can be said with confidence based on principle and the precedent of In re Haughey [1971] IR 217 that where the proceedings of such a Tribunal evolve into a case against a particular person rather than an inquiry into his conduct, that the appropriate rules apply. In my view it is important to recognise that the “panoply of rights “, as it has been described, to which Mr Padraig Haughey became entitled as held by this Court in the “Haughey case” arose not because a preliminary investigation had been carried out and concluded or because a witness was required to give evidence on oath but because the procedures of the Committee of Public Accounts put Mr Padraig Haughey in a position where he was being accused of serious misconduct The situation was summarised by O’Dalaigh CJ (at page 262) in the following terms:-


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“Therefore, the position of Mr Haughey was that at a public session of the Committee on the 9th of February 1971 he had been accused of conduct which reflected on his character and good name and that the accusations made against him were made upon the hearsay evidence of a witness who asserted he was not at liberty, and therefore was not prepared, to furnish the Committee with the names of Mr Haughey ‘s real accusers. The question which arises in these circumstances is what rights, if any, is Mr Haughey entitled to assert in defence of his character and good name.

It was in those circumstances that Counsel on behalf of Mr Padraig Haughey contended that their client was entitled to have his accusers cross-examined and that he should be entitled to address, by his Counsel, the Committee in his defence. The Attorney General’s argument in response was that Mr Padraig Haughey was seeking rights which would not be available to a witness in the High Court. That argument was rejected on the grounds that Mr Haughey was no mere witness. Again, it was the then Chief Justice who said (at page 263) that:-

“The true analogy, in terms of High Court procedure, is not that of a witness but a party. Mr Haughey ‘s conduct is the very subject matter of the Committee’s examination and is to be the subject matter of the Committee’s report.”

110. In the Haughey case this Court identified two situations. First, where a potential witness becomes a potential accused with the result that what commenced as an inquiry ceased to be inquisitorial and became adversarial. Not merely that: it took on the aspect of the criminal prosecution. That change clearly triggered a constitutional requirement of a right to vindicate the name of the accused.


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111. The other consequence of the working of the parliamentary committee identified by the Chief Justice was that Mr Padraig Haughey might be the subject matter of adverse criticism of a public report in respect of which the authors would enjoy legal immunity. This was a Situation which necessitated the adoption procedures to enable the “witness” to protect his constitutional rights.


112. It is not my understanding that the Constitution requires every witness participating in a public sworn inquiry to have advance notice of questions which may be addressed to him or of evidence given or to be given before the Tribunal. The purpose of a public inquiry, such as the present is twofold: first, for the Oireachtas to obtain information to enable it to perform more effectively its legislative functions and secondly, to assuage public concern as to the existence of a particular state of affairs. The second of these purposes manifestly requires that the business of the Tribunal should be conducted in public. That general requirement is tempered by the limited statutory exemption in favour of private sittings. This exemption is necessary to avoid giving undue and privileged publicity to wholly unsustainable allegations and it is desirable also to ensure that the Tribunal equips itself with adequate information to conduct a meaningful public inquiry. However, the fact that the Sole Member and his Counsel or advisors will have a body of information available to them would not of itself convert the inquisitorial proceedings into one of an adversarial nature.


113. Clearly an inquiry may, as it did in the Padraig-Haughey case, evolve into a charge by the investigative body against what should be a witness. On the other hand, it is to my mind, inconceivable that witnesses who are called before a Tribunal to give such evidence as is available to them in relation to the subject matter of the Tribunal should be treated as


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defendants in civil or criminal proceedings or afforded the rights which would be available to such parties. An inquiry as such does not constitute legal proceedings (whether civil or criminal) against any person: less still does it constitute a multiplicity of legal proceedings against each and every of the witnesses subpoenaed to appear before it. If such were the case t would be impossible to conduct any inquiry. In that event it would be necessary for each witness to cross-examine not only the witnesses who gave evidence before he did but also that he should have an opportunity of cross-examining those who gave evidence after he had been heard.

114. It must be remembered that the report of the Tribunal whilst it may be critical and highly critical of the conduct of a person or persons who give evidence before it is not determinative of their rights. The report is not even a stage in a process by which such rights are determined. The conclusions of the Tribunal will not be evidence either conclusive or prima facie of the facts found by the Tribunal.


115. This is not to suggest for one moment that a party to adversarial proceedings has extensive natural and constitutional rights and that a witness before a Tribunal has none. It is merely to recognise that the need for rights in determinative proceedings differs from those which have no such consequence and that some of the rights long associated with adversarial proceedings do not translate into those of an inquisitorial nature. What I venture to suggest is that it may be necessary to examine afresh the manner in which the constitutional rights of a witness required to attend such a public inquiry must be protected. In that regard it must be recalled that natural rights are the procedures for the protection of the constitutional rights of citizens and the attainment of justice. They are not a ritual or formula requiring a slavish adherence.


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116. Clearly witnesses must know the subject matter of the inquiry and be advised as to the procedure to be adopted by it. In the interest of the Tribunal as well as that of the witness notice should be given to the witness of the area in respect of which it is intended to examine him. In the course of his examination a variety of matters will be put to the witness. Much of Ii is will be the rumour, speculation or comment which has given rise to the public concern which justified the setting up of the Tribunal. In addition it is c1ear that the Tribunal would have to put to a witness the substance of any evidence given or to be given to the Tribunal of which it was aware so that the witness could comment on it before the Sole Member expressed his opinion as to the true state of facts in his report to Dail Eireann. I am not persuaded at this stage that a witness is entitled to cross-examine or have cross-examined any other witness who gave evidence critical of him. To impose such a requirement would involve the assumption that cross-examination is the only means or the only appropriate means of eliciting the truth. Such an assumption would place an excessive value on the adversarial system and implicitly reject alternative systems which find favour in other jurisdictions and appear to achieve an equally high standard of truth and justice. The cxamination and cross-examination of witnesses by the Tribunal or its Counsel might meet the requirements of natural justice having regard to functions which such a body performs. Whether a Tribunal so confines the proceedings would be a matter for the judgment of the Tribunal itself. In certain cases it might be persuaded that the cross-examination of witnesses critical of a particular person should be open to cross-examination by Counsel of behalf of that person. I would assume that the essence of such tribunals and the primary means by which natural justice is attained is the appointment as a member or a sole member of a person or persons conscious of the constitutional rights of every citizen: familiar with the procedures by which such rights may be protected: sensitive to the understandable concerns of all of those whose affairs are affected by the business of the Tribunal and innovative in designing


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procedures to protect such rights and meet such concerns. I would have thought that the appointment of a Judge of the Superior Courts to act as a sole member would in itself go a long way to ensuring the protection of the constitutional and civil rights of all witnesses.

117. I am far from convinced, therefore, that each and every witness required to give evidence (whether in public or private) before a Tribunal is entitled to the full panoply of the Haughey rights simply because preliminary inquiries have been completed or evidence is required to be given on oath. However, it would be impossible to express any concluded judgment in this matter until the issue comes before the Courts in an appropriate case for determination.


118. In relation to the present appeal I would affirm the order of the learned trial Judge and record, as I have done, my reservations as to the correctness of the views which he expressed on the application of the principles of natural justice to a case such as the present.

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