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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Maguire v. Ardagh  IEHC 133 (23rd November, 2001)
Cite as:  IEHC 133
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the 19th/20th April 2000 an incident occurred at Toneymore, Abbeylara, Co.
Longford involving a 27 year old man called John Carthy. (Mr. Carthy). The
incident came to an end with Mr. Carthy being shot dead by the Garda.
Superintendent Adrian Culligan was appointed by the Commissioner of the Garda
to investigate the circumstances surrounding the events which resulted in Mr.
Carthy’s death. In particular the Chief Superintendent was asked to
Minister placed the report before the National Parliament which in turn
referred it to a Joint Committee of both Houses. That Committee considered the
report and submitted it to both Houses in the form of an interim report. This
meant that the report could be published and it was.
and observations were invited in respect of that report and a total of 21
submissions were received by the Joint Committee. On the 8th March 2001 the
Joint Committee purported to establish a sub-committee and it is that reference
and the work of the sub-committee so formed that is the subject matter of this
of the Applicants are members of the Garda Siochana who have been the subject
of a direction to attend before the sub-committee in order to give evidence to
it. Some were directly involved in the incident; others were not. Included
amongst the applicants are the officers who shot Mr. Carthy.
of the Respondents with the exception of the last two are members of a
Parliamentary Joint Committee with the rather cumbersome title of
“Oireachtas Joint Committee on Justice, Equality, Defence and
Womens’ Rights” (hereinafter “the Joint Committee”).
first seven Respondents are the members of the sub-committee which was formed
by the Joint Committee and which is known as the “sub-committee on the
Abbeylara incident.” (Hereinafter “the sub-committee”).
is one further Parliamentary Committee which will be referred to frequently in
the course of this Judgment which it is convenient to identify at this stage.
This is a sub-committee appointed jointly by the Committee on Procedure and
Privileges of each House pursuant to the provisions of the Committees of the
Houses of the Oireachtas (Compellability, Privileges and Immunites of
Witnesses) Act 1997. For ease of reference we shall refer to this
sub-committee throughout this Judgment as “the Compellability
Applicants call attention to the fact that the resolution of the Dail did no
more than refer the Commissioner’s Report to the Joint Committee. It
did so in accordance with Paragraph (2) of the Orders of Reference of the Joint
Committee. Paragraph 2 of the Dail Orders of Reference provides as follows:
is not the slightest suggestion that the Commissioner’s report into the
death of Mr. Carthy has anything to do with womens’ rights generally or
otherwise. Quite clearly the Senate in purporting to refer the report to the
Joint Committee erred in respect of its own Orders of Reference by apparently
failing to take into account that they had in turn been amended by an Order of
the Senate of the 30th April 1998 whereby an additionalsub-paragraph had been
inserted into paragraph 1 thereof. The effect of this was that the original
sub-paragraph (v) became sub-paragraph (vi) which reads:
Houses are entitled, pursuant to their respective standing orders, to appoint
select committees. The Dail set up a fourteen member committee known as the
Select Committee on Justice, Equality and Women’s Rights. The Senate did
likewise save that in its case membership of the select committee was confined
to five Senators. Both Dail and Senate then resolved that the select committee
of each House should be joined together so as to form the Joint Committee. The
relevant extracts from the respective orders of reference governing the Joint
Committee have already been set forth in this Judgment.
Joint Committee submitted the Commissioner’s report to both Houses in the
form of an interim report. Thus the report came to be published. Submissions
and observations were invited on the report and a total of 21 such submissions
were received by the Joint Committee.
considering the powers that were purportedly conferred on the sub-committee it
is necessary to see what the entitlements of the Joint Committee itself were.
In setting up the Joint Committee the Dail expressly provided that it
have the powers defined in Standing Order 78(1) to (9)”.
The Senate directed that the Joint Committee “
have the powers defined in Standing Order 62(a)(1) to (9)”.
Fortunately the powers conferred under the Standing Orders from each House are
identical and so it is not necessary to set them forth in duplicate. Neither
is it necessary to set forth all of the powers since some of them have no
relevance to the matter in suit. The relevant powers will be set out in this
Judgment at the appropriate time.
is clear from the terms of this Order and in particular sub-paragraphs (d) and
(e) thereof that the sub-committee was invested with both functions and powers
which were less extensive than those of the Joint Committee.
reasons for the passage of these resolutions will become clear when the court
comes to consider the provisions of the Committees of the Houses of the
Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997
which will henceforth be referred to as “the Act”. It is
sufficient for present purposes to say that the powers of committees to obtain
evidence as conferred by that Act may only be utilised when a resolution of
this type is passed. (See Section 2 of the Act).
the 10th April 2001 the Joint Committee purported to amend its Order of the 8th
March 2001 setting up the sub-committee. On the 10th April a motion was passed
by the Joint Committee amending its Order in paragraph 1(a) by the deletion of
this amendment was brought about on the 10th April 2001 it seems to have gone
missing thereafter. It did not appear on a number of subsequent occasions
when orders of reference of the sub-committee were produced.
this day (Spy Wednesday) the sub-committee made an application to the
Compellability Committee. It did so with a view to obtaining the consent of
that committee which would trigger an entitlement to utilise the provisions of
the Act. The application was purportedly accompanied by a copy of the terms of
reference of thesub-committee. In fact the document which was submitted
mis-stated the terms of reference. It did not reproduce the amendment which
was made on the 10th April. Instead it alleged that the 10th April amendment
read as follows:
been made on the 10th April. However, such an amendment was made the following
day the 12th April. It remains a mystery as to how the Compellability
Committee had represented to it on the 11th April 2001 that the sub-committee
had powers which it did not gain until the following day.
court will return later to what happened before the Compellability Committee
but before doing so it must complete the narrative concerning further
amendments made to the powers of the sub-committee.
the same day letters were dispatched to prospective witnesses purporting to
exercise the power to compel their attendance pursuant to the provisions of the
1997 Act. These letters made it clear that the enquiry was due to commence on
Low Tuesday 24th April 2001. It did so. In due course the court will turn to
what happened on that and subsequent days.
court must now turn to the events of the 11th April 2001 when the
sub-committee made application to the Compellability Committee. It has already
pointed out the inaccuracy in the information placed before that committee.
order to understand what occurred on the 11th April it is however necessary to
consider the terms of the 1997 Act.
long title of this Act makes it clear that its two principal purposes are to
provide committees of the Houses of the Oireachtas with the ability to compel
the attendance of witnesses and the provision of privilege and immunities to
2 of the Act makes it clear that, inter alia, the compellability provisions of
the Act can only apply to a committee of the type in suit here in circumstances
where both Houses of the Oireachtas have conferred a power on such
sub-committee to send for persons, papers and records. Once this necessary
precondition is satisfied then a sub-committee of the type in suit can make an
application to the Compellability Committee provided for under the Act for its
consent to the exercise by such sub-committee of the powers which are set forth
in Section 3(1) of the Act. These powers include an ability to direct in
writing any person whoseevidence is required to attend before the sub-committee
on a date and at a time and place specified in the direction, there to give
evidence and produce any document in his or her possession or power specified
in the direction. The sub-committee can also direct a person to produce or
send the committee a document or make discovery on oath of any documents that
are or have been in that person’s possession or power relating to any
matter relevant to the proceedings of the sub-committee.
sub-section 7 of Section 3 it is provided that where a person disobeys a
direction of the sub-committee the High Court may,
application to it in a summary manner in that behalf by the chairman of the
behalf of the committee, order the person to comply with the direction and make
such other Order as it considers necessary and just to enable the direction to
have full effect. A person who failed to comply with an Order made by the High
Court under thissub-section could of course be dealt with under the contempt
jurisdiction of the Court.
addition, a person who fails to comply with a direction of a sub-committee is
also (pursuant to the provisions of sub-section 8) guilty of an offence. The
offence carries a penalty on summary conviction of a fine not exceeding
£1,500 or imprisonment for a term not exceeding twelve months or both such
penalties. In the case of a conviction on indictment the fine may not exceed
£20,000 and the imprisonment can be for a term not exceeding two years or
both. The decision as to whether to proceed to the High Court or to the
Director of Public Prosecutions is a matter for the committee but there are
restrictions placed on both courses being followed together (see Section 16(3)).
this short recital of the statutory provisions it is clear that a failure to
comply with the statutory directions of a sub-committee carries serious
implications for the subject of such directions
is clear from the wording of Section 3 that a sub-committee of the type in suit
must have the consent of the Compellability Committee before it can
legitimately issue a direction of the type contemplated in Section 3(1).
the 11th April 2001 the sub-committee made application to the Compellability
Committee for the necessary consent under the provisions of the 1997 Act so
that it could issue statutory directions to proposed witnesses pursuant to
Section 3 of that Act.
made the application to the Compellability Committee pursuant to Rule 14 of the
Rules and Guidelines for Committees in relation to the conduct of proceedings
which may give rise to findings of fact, or conclusions which could adversely
affect or impugn the good name of any person.
sub-committee at paragraph 1.2 of its application to the Compellability
Committee set out as a basis for its application the referral of the 25th
October 2000 of the report by the Commissioner.
paragraph 1.3 it recites that the sub-committee on the Abbeylara incident was
established by the Joint Committee on the 8th March 2001 and there set out the
terms of reference. It purported to enclose a copy of those terms of
reference. However, as we have already pointed out the enclosure did not
conform with the terms of reference as it did not set out the purported
amendment of the 10th April 2001 and anticipated an amendment which was not
effected until 12th April 2001.
Compellability Committee held a meeting on the night of the 11th April and
considered the request from the Sub-Committee. The meeting apparently
commenced at 7.50 p.m. and ended at 8.05 p.m. During that fifteen minute
period it considered requests from twosub-committees one of which is the
sub-committee in suit.
is common case that no consent in writing was forthcoming from the
Compellability Committee that night nor indeed for many days thereafter. It
was not until the 30th April 2001 that Mr. Seamus Brennan, the Chairman of the
Compellability Committee executed a document purporting to be a consent for the
purposes of Section 3 of the Act. The document reads as follows:
applicants contend that as this consent was not in written form on the 12th
April 2001 the sub-committee was not competent to issue the directions which it
did. Furthermore they say that when ultimately the consent did appear on the
30th April it did not comply with the provisions of Section 9(b) of the Act.
commenced before the Committee on the 24th April 2001. In due course it may be
necessary to consider some of the procedures which were adopted by the
Committee but for the moment the court contents itself with dealing with
applications which were made to the sub-committee touching upon the matters
that it has had to deal with in this Judgment so far.
sub-committee commenced its hearings on the 24th April 2001. On the following
day it visited Abbeylara. On the 26th April as is clear a further amendment
was made to the Order establishing the sub-committee. On the afternoon of the
following day Mr. RogersS.C. on behalf of the applicants raised questions as to
the lawfulness of this amendment. He sought information concerning it and made
submissions on the basis of the information which he then had. He also sought
further information concerning the steps which have been outlined in the
Judgment to date. In this regard it ought to be made clear that the full
picture concerning the various amendments and the various steps taken was not
merely not disclosed to Mr. Rogers when he made the application before the
committee on the 27th April but were not disclosed to this Court until the
third day of the hearing when Supplemental Affidavit evidence was filed.
did not satisfy Mr. Rogers. He pointed out that the issues that he raised were
fundamental to the jurisdiction of the committee and asked for the production
of the Order by way of amendment there and then that afternoon. He pointed out
that grievous questions about the propriety of the steps that had been taken
had been raised and went on to say that although the sub-committee might have
the support of the Oireachtas his clients had a deepwant of confidence in the
independence of the committee having regard to the remarks made earlier that
afternoon by its Chairman. Despite further submissions the committee indicated
that it intended to continue to sit and then Mr. Rogers applied for an
adjournment. Further exchanges took place which it is not necessary to deal
already noted the full and true picture concerning the various amendments that
had been made and steps taken did not emerge until this hearing was under way
for a number of days. Only then were the now admitted imperfections, lacunae
and errors made apparent to the applicants and the Court.
the 21st May 2001 this Court (Butler J.) gave leave to the applicants to seek
Judicial Review in respect of the working of the sub-committee. The applicants
were given leave to seek the following reliefs:
the course of submissions made to the Court counsel on behalf of the committee
made it quite clear that the committee sees itself as having an adjudicative
function and that it is entitled to make findings in respect of the evidence
tendered before it. These findings he said could include (if the committee
thought it appropriate) a finding of unlawful killing in respect of Mr. Carthy
at the hands of a particular police officer or officers. That enquiry is
taking place in circumstances where the applicants have been compelled to
attend and give evidence. A failure to comply with the directions of the
sub-committee in that regard can, pursuant to the 1997 legislation, give rise
to the consequences which have already been outlined in this judgment.
cannot be gainsaid that if the sub-committee were to reach conclusions of the
type just outlined it would have the most profound consequences for the good
name, reputation and livelihood of serving police officers such as the
the apparently wide remit given to the Court by that Article it is nonetheless
subject to restrictions which are contained in the Constitution itself. For
example, the Court has no jurisdiction over the President for the exercise and
performance of the powers and functions of that office or for any act done or
purporting to be done by the President in the exercise and performance of such
powers and functions (see Article 13.8). This is a clear example of the
Constitution placing an area of enquiry outside the jurisdiction of this Court.
it done so in relation to the legislature? The answer is clearly in the
affirmative in certain respects. For example Article 22.2.5
makes the decision of a committee of privileges on whether a Bill is or is not
a money Bill final and conclusive. Such a decision cannot be questioned in the
is interesting because it is a specific example of one piece of Parliamentary
procedure which is put beyond challenge by the Constitution itself in clear and
simple terms. One might think that if it was the intention of the Constitution
that questions of the type which have been agitated in these proceedings ought
to be beyond the purview of this Court it would have done so in equally simple
and straightforward terms. But it did not.
from the jurisdiction of this court can also be found by specific reference to
other Constitutional provisions contained within Article 15 which deals with
the National Parliament. For example Article 15.13 provides that members of
each House shall not, inrespect of any utterance in either House, be amenable
to any Court or any authority other than the House itself. Article 15.12
provides that all official reports and publications of either House and
utterances made in either House wherever published shall be privileged.
of the respondents have been able to point to any Constitutional Article which
specifically delimits the entitlement to this Court to intervene in the
workings of the Oireachtas when it is not exercising legislative power. Rather
they have, by reliance upon the provisions of Article 15.10, suggested that for
the Court to do so would be an infringement of that Article.
question arises as to whether this provision can be relied upon successfully to
exclude the jurisdiction of this Court to review the conduct of a Parliamentary
committee in its dealings with a citizen who is compelled to participate in its
workings in circumstances where his Constitutional rights to good name,
reputation or fair procedures may be imperilled. In orderto answer this it is
necessary to see how the Courts have addressed the issue of the separation of
powers with particular reference to Article 15.10.
the courts have refused to interfere with the legislative process by declining
to enjoin the passage of bills through Parliament (see the Judgment of Carroll
J. in Roche v Ireland (Unreported, High Court, 17th June, 1983) and the
Supreme Court in Finn v Minister for the Environment I.R. 154). Likewise
the courts have refused to become involved in a dispute between a member of the
National Parliament and the Ceann Comhairle. (
O’Malley v Ceann Comhairle  1 I.R.427)
In that case this Court and the Supreme Court declined to permit Judicial
Review to challenge a decision of the Ceann Comhairle in respect of Standing
Order 33 of the Dail.
the situation different in circumstances where the courts are asked to
intervene in respect of the Oireachtas when not exercising legislative power
and when a non member is obliged to become involved in the exercise of such
power in a manner where he apprehends that rights guaranteed to him under the
Constitution may be in peril?
examination of the case law on this topic must begin with
Haughey  I.R. 217.
That case raised a large number of issues including questions such as whether
the relevant Parliamentary committee had investigated matters outside its terms
of reference; whether it had power to administer oaths; whether the Standing
Orders of the Dail had been duly made pursuant to Article 15.10 of the
Constitution and whether the rules of Constitutional justice had been complied
with. Over and above those was the question of the constitutionality of the
particular legislative provision namely the Committee of Public Accounts of
Dail Eireann (Privilege and Procedure) Act, 1970.
case is perhaps best remembered for the determination by the court as to the
unconstitutionality of the relevant statutory provision and the assertion of
the rights which a witness before such a committee ought to have as a matter of
constitutional justice and fair procedures. But an examination of the
Judgments of the Supreme Court as a whole makes it clear that that Court found
no difficulty in doing precisely what it is said is impermissible for this
Court to do.
judgment of O’Dalaigh C.J., considered six points which were made by
Counsel on behalf of Mr. Haughey. The sixth point was that which dealt with
fairness of procedures. However points 1, 2, 4 and 5 dealt with other matters.
first point taken was an objection to the Parliamentary Committee’s terms
of reference as referred to an examination of expenditure of monies of the
Irish Red Cross Society. O’Dalaigh C. J., conducted a meticulous
examination of that argument, Inter alia he considered the terms of the Order
of Dail Eireann of the 1st December 1970 and what it contemplated. He carried
out an examination of the particular standing order under which the Select
Committee was operating and made the finding that“the examination of the
expenditure of monies belonging to the Irish Red Cross Society, not being
monies granted by the Dail to meet public expenditure, is not a matter which,
as such, falls within the jurisdiction of the Committee of Public
second point raised by Mr. Haughey constituted an objection to any examination
into the expenditure of the grant-in-aid even though conducted within the terms
of Standing Order 127. The ground of objection advanced was that the Standing
Orders relative to public business had not been adopted as the Standing Orders
of the House of Representatives, called Dail Eireann established under the
Constitution of Ireland, but were the Standing Orders of the former Dail
Eireann i.e. the Chamber of Deputies, called Dail Eireann, established under
the Constitution of Saorst
Eireann. This argument was examined by O’Dalaigh C. J. and resulted in a
finding that the action of Dail Eireann taken on the 12th January, 1938, was
susceptible of no other construction than that the new House was
“making” its standing orders within the meaning and intention of
fourth objection raised by Mr. Haughey was that the certificate under the hand
of the Chairman of the relevant committee was not made with sufficient
particularity. That question was also examined in detail and a conclusion in
favour of Mr. Haughey reached upon it. The certificate in question was one
which was sent forward to the High Court certifying that Mr. Haughey had been
called to attend and had refused to answer questions. The argument that was
made was that that was insufficient because the High Court had to know what the
questions were and whether they were relevant to the terms of reference under
which the committee was operating.O’Dalaigh C. J. said at p. 260
fifth point dealt with by O’Dalaigh C. J. concerned an objection to the
validity of the committee’s certificate on the grounds that it should
have been made by the unanimous decision of all of the members of the
committee. This question was also adjudicated upon by reference to the
standing orders applicable to it.
is clear from the foregoing that the Supreme Court engaged upon an examination
of a resolution of the Dail, interpreted it and cross referred to the powers
granted to the Committee of Public Accounts under Standing Order 127. Having
completed that process it identified the precise issue which was within the
jurisdiction of the Public Accounts Committee. The Supreme Court then went on
to consider the validity of the Standing Order on the basis that it had never
been adopted. The validity of the certificate involved a consideration of the
vires of the committee vis a viz its terms of reference. These questions were
considered by the Supreme Court in the context of arguments made by reference
to an assertion that the committee in question had no jurisdiction to proceed
with the enquiry and the respondent was not acompellable witness before it.
(See page 233 of the report).
are precisely the type of issues which the Court is invited to examine in this
case. The Judgment of the Supreme Court in
is supportive of the notion that persons can only be compelled to attend and
take part in Parliamentary enquiries, be subjected to cross examination and the
possibility of adverse findings, if and only if the committee in question is
acting within jurisdiction.
follows that the Court must be able to determine the jurisdiction in question
and the procedures which were followed. Submissions made to the effect that
the Court does not have any jurisdiction to entertain these questions appear to
be in the teeth of what the Supreme Court actually did and decided in
about the way in which Parliament regulates its own members a citizen cannot be
subjected to a Parliamentary process unless it is lawful, within jurisdiction
and is fair. The adjudication of whether those criteria had been met is a
matter for this Court and contrary inparticular to the submissions made by
Deputy Shatter is not a matter to be determined by Parliament or by any
page 264 of his Judgment O’Dalaigh C. J. said “
proceedings before any tribunal where a party to the proceedings is on risk of
having his good name, or his person or property, or any of his personal rights
jeopardised, the proceedings may be correctly classed as proceedings which may
affect his rights and in compliance with the Constitution the State, either by
itsenactments or through the courts, must outlaw any procedures which will
restrict or prevent the party concerned from vindicating these rights.”
that observation from O’Dalaigh C.J. is made in the context of
considering the sixth complaint of Mr. Haughey dealing with fair procedures it
nonetheless appears to the court to have a relevance when a citizen such as the
one described there contends that the body which is purporting to examine him
under subpoena has no power to do so or is behaving unlawfully.
fact that this Court regards itself as not merely competent but obliged to
entertain and consider the complaints made here is not in any way disrespectful
either to the notion of the separation of powers or indeed to the respect
which the Judicial organ of Government accords to the other organs of
Government established under Article 6 of the Constitution.
his Judgment at page 610 of the report McCarthy J. said “
Parliamentary resolution requires due respect from the Judicial organ of
Government; whilst the range of the remit contained in the resolution has been
alleged to trench upon the Judicial power, there has been no suggestion of any
impropriety or abuse of the Parliamentary power. If an allegation of
impropriety or abuse of power were to be made, then, both as to ascertaining
the facts and enforcing Constitutional rights, to echo the words
ofO’Dalaigh C.J. in the State (Quinn) v Ryan  I.R. 70 at page 122;
“The court’s powers in this regard are as ample as the defence of
the Constitution requires.””
court mentions that particular quotation
as to demonstrate the untenable nature of the argument made by Mr. Shatter to
the effect that a Dail resolution is incapable of being challenged in any
circumstances in this court. There clearly is an entitlement to challenge in
the case of impropriety or abuse of power. It is accepted that neither of
those circumstances apply here.
What is sought to be done here is much less intrusive. The Court is merely
asked to interpret the Parliamentary resolutions and to examine steps taken and
resolutions passed subsequent and subordinate to the passage of such
resolutions. Such an approach is completely consistent with what was done in
third case to which the court wishes to refer is that of
v Moriarty  3 I.R.
Lest it might be thought that the observations of McCarthy J. which have just
been cited were peculiar to him we draw attention to what was said by Hamilton
Haughey v Moriarty
at pages 33/34. He cites with
the passage which we have reproduced in full and he goes on to say
court is satisfied that while the Act of 1921, as amended, does not empower the
establishment of a tribunal of enquiry such as was established in this case,
that the Houses of the Oireachtas had and have the inherent jurisdiction to
resolve that it is expedient that a tribunal be established to enquire into
what they consider to be urgent matters of public importance. In pursuance of
such a resolution the Taoiseach had jurisdiction to appoint a Tribunal for such
purpose and to provide in the instrument or order appointing such tribunal that
the Act of 1921, as amended, should apply.
court is of the view that neither the plain wording of the Constitution nor the
case law to which it has referred are supportive of the notion that the
jurisdiction of the Court is excluded from investigating the matters in respect
of which complaint is made by the applicants in the circumstances in which they
find themselves. It does not appear to us that the Court would be guilty of
any impropriety in entertaining their complaints.
found no support for the respondents’ plea of non justiciability in the
Constitution itself or in the case law which we have just quoted, the court
will now examine the views of some academic commentators.
his work entitled “
of Powers in the Irish Constitution”
published in 1997 Professor David Gwynn Morgan at chapter 11 deals with the
question of the court’s intervention in the functioning of the Oireachtas
and the passing of legislation.
learned author then proceeds to consider the case law involving the Oireachtas
when not exercising legislative power. The primary case considered is in
He also considers an application for judicial review which did not proceed
stage and consequently is not reported. Thirdly, he considers
General v Hamilton (no. 2)  3 I.R. 227
He expresses his conclusions as follows at page 224:
the leading text book on the topic of separation of powers expresses a view
which is squarely against the proposition put by the respondents as to the
court’s alleged inability to intervene.
other text book on the Constution namely the third edition of Professor
Kelly’s work considers at page 138 the statement from O’Dalaigh J.
in the Wireless Dealers Association case which we have already quoted. The
authors then go on
of these works therefore appear to accept that when the Oireachtas is not
exercising legislative power decisions made by committees are justiciable in
circumstances where a person external to the Houses is compelled to attend and
made subject to such decisions. The court’s power is not confined merely
to a consideration of fairness of procedures but extends to other
Constitutional rights, rulings, issues of vires and entitlement.
turn now to consider whether any assistance may be gleaned from the
jurisprudence of other jurisdictions.
v United States 354 US 178
been summoned to testify before a sub-committee of the House of Representatives
Committee on Un- American Activities. He testified freely about his own
activities and associations but refused to answer questions as to whether he
had known certain other persons to have been members of the Communist Party.
He based that refusal on the ground that those questions were outside of the
proper scope of the committee’s activities and not relevant to its work.
No clear understanding of the “question under enquiry” could be
gleaned from the resolution authorising the full committee, the legislative
history thereof, the committee’s practices thereunder, the action
authorising the sub-committee, the statement of the Chairman at the opening of
the hearings or his statement in response to the petitioner’s protest.
The United States Supreme Court held that the petitioner was not accorded a
fair opportunity to determine whether he was within his rights in refusing to
answer and the conviction which had been levied against him was invalid under
the due process clause of the Fifth Amendment.
the course of his Judgment Warren C.J. sets out the history of Parliamentary
enquiries in the United Kingdom and the various skirmishes which took place
between the Judiciary and Parliament involving on one occasion the imprisonment
of Chief Justice Pemberton in Newgate Prison. He then goes on to deal with the
history of contempt of the legislature in the United States. Turning to the
particular case before the court he said at page 201“
essential premise in this situation is that the House or Senate shall have
instructed the committee members on what they are to do with the power
delegated to them. It is the responsibility of the Congress, in the first
instance, to ensure that compulsory process is used only in furtherance of a
legislative purpose. That requires that the instructions to an investigating
committee spell out that group’s jurisdiction and purpose with sufficient
particularity. Those instructions are embodied in the authorizing resolution.
That document is the committee’s charter. Broadly drafted and loosely
worded, however, such resolutions can leave tremendous latitude to the
discretion of the investigator. The more vague the committee’s charter
is, the greater becomes the possibility that the committee’s specific
actions are not in conformity with the will of the parent House of
Supreme Court then went on to analyse the relevant resolution and concluded
that it did not comply with the standard prescribed. This clearly involved an
examination of issues such as this Court is asked to deal with in the present
his concurring Judgment in the Watkins case Frankfurter J. points out the
history of the power of Congress to punish for contempt of its authority. He
records that at the time of the Watkins Judgment that matter was dealt with by
legislation under which the Federal Judiciary was appointed the affirmative
agency for enforcing the authority that underlines the Congressional power to
punish for contempt. This is not dissimilar to the position which obtains
under the 1997 Act where this court may be called upon to enforce a direction
of the sub-committee given under that Act and if necessary to punish for any
failure to comply with such an Order. In addition the courts may become
involved should the committee proceed to have an offence created under Section
3(8) of the Act made the subject of a prosecution.
J. said at page 216 of the report “
thus making the federal judiciary the affirmative agency for enforcing the
authority that underlies the congressional power to punish for contempt,
Congress necessarily brings into play the specific provisions of the
Constitution relating to the prosecution of offences and those implied
restrictions under which courts function.”
a later case of
v United States 384 US 702
the United States Supreme Court had to deal with a petitioner who refused to
answer questions concerning his affiliation with the Communist Party, the
affiliation of others and his connection with the peace crusade before a
sub-committee of the House Committee on Un-American Activities
challenged the jurisdiction of the committee and the sub-committee, the
authorisation of each and the Constitutionality of the enquiry. He was
indicted and convicted for contempt of Congress. His conviction was affirmed
by the Court of Appeal but reversed by the Supreme Court. In the course of his
Judgment Fortas J. at p. 716 said, in relation to the statutory provision which
required that a witness to be found guilty of contempt must have been summoned
as a witness by the authority of either House of Congress to give testimony
upon any matter under enquiry before either House that“
legislative history (of that statutory provision) makes plain that a clear
chain of authority from the House to the questioning body is an essential
element of the offence. If the contempt occurs before a sub-committee, the
line of authority from the House to the committee and then to the sub-committee
must plainly and explicitly appear, and it must appear in the terms of a
delegation with respect to a particular, specific subject matter.”
that case was of course decided in the context of a conviction for a criminal
offence nonetheless it demonstrates the court’s willingness to
investigate an allegation as to the vires of the sub-committee of the House.
decisions from the United States, where Congressional enquiries are a matter of
daily routine, are supportive of the notion that when citizens who are not
members of Congress are sought to be embroiled in investigations being
conducted by it, the court is entitled to examine complaints of the type in
statement by Professor Tribe
that the United States Federal Courts have no less ‘compunction’
pace Professor Gwynn Morgan than the Irish courts about exercising
jurisdiction to enforce the Constitution or other rules in regard to affairs of
the legislature at least in circumstances when it is not exercising legislative
expressing final conclusions in respect of this aspect of the matter the court
must of course refer to the views of Geoghegan J. in
v Moriarty  3 I.R.
1 where in the course of his Judgment in the High Court he ruled out all
evidence directed to showing that there was some irregularity in the way in
which the Senate had been convened for the purposes of the resolution which was
passed. He pointed out that originally the Plaintiffs alleged that neither the
Dail nor the Senate were properly convened. At a later stage the claim that
the Dail was not properly convened was abandoned but the claim in respect of
the Senate was persisted in. He said at page 16
seems to the court that in that case the Judge was treating as being truly
internal to the workings of Parliament matters touching upon the way in which
either House was convened but was then prepared to examine and test for vires
the resolution passed. But in this case we are not being asked to investigate
nor is any complaint made of any irregularity of the type mooted in
Haughey v Moriarty
The review which we are asked to conduct here goes back no further in time
than the 25th October 2000 being the day upon which both Houses passed the
resolutions. We do not therefore see that there is anything inconsistent
between what we are asked to do here and what Geoghegan J. was clearly prepared
to do in the case of
we should deal with the suggestion that what is sought to be done here in some
way runs counter to the decision of the Supreme Court in
Attorney General v Hamilton (No. 2
3 I.R. 227
That case was concerned with the provisions of Article 15.12 and 15.13 of
in particular. The decision of Finlay C.J. sets out the way in which members
of either House could not be made liable. The applicants in the course of
their submissions accepted the correctness of that analysis and did not seek to
depart from it. But they say that nothing that is sought in this case
contravenes the non amenability which is provided for in the relevant
Constitutional Articles. The court is of the view that they are correct in
that assertion. The applicants must and do acknowledge the non amenability
provided for but they say that that is not a justification for erecting the
much larger edifice of nonjusticiability.
court holds that all of the complaints made by the applicants in these
proceedings are justiciable
may be the subject of examination by the court. Whether these claims are well
founded or not is a matter with which it will next concern itself.
was the direction of the 12th April issued by the sub-committee to the
applicants that caused them to attend before that sub-committee. In order to
issue such directions with binding force it was necessary for the sub-committee
to obtain the consent of the compellability committee. It purported to do so
on the 11th April 2001. A resolution was passed by the compellability
committee that night granting consent but it is common case that it was not
until the 30th April that a document purporting to be such consent was signed
by the Chairman of the compellability committee.
argument they make is that the consent contemplated under the provisions of
Section 3 is given a statutory definition which is set forth at Section 3(9)(a)
of the Act
sub-section provides that a consent of the appropriate sub-committee shall be
in writing and the document containing it shall be signed by the Chairman of
the sub-committee or by another member of the sub-committee duly authorised in
that behalf by such Chairman.
court is satisfied that by so providing the legislature made it clear that a
consent for the purpose of the Act cannot be achieved by the mere passage of a
resolution by the Compellability Committee but must be in written form in
accordance with the terms of Section 3(9)(a). This is a specific statutory
definition of what constitutes a consent for the purposes of the Act. It would
have been open to the legislature to provide otherwise. For example it might
have prescribed the passage of a resolution as enough and then go on to provide
a method of proof of the passage of such resolution by reference to document in
writing to be produced under the hand of the Chairman. That is a concept well
known in company law where the passage of a resolution by a company is proved
by an appropriately authenticated minute. But that is not what the legislature
chose to do here. It specifically defines a consent in mandatory terms as one
which “shall be in writing.” Despite some infelicity in the
sub-section when it goes on to speak of the “document containing
it” we do not think that the court would be justified in interpreting a
mandatory provision requiring that the consent be in writing as meaning the
precise opposite. The only form of consent which satisfies the Act is one in
writing, duly authenticated as prescribed and not otherwise.
respondents point to the fact that the statute does not require that the
consent exist prior to the issue of the direction by the sub-committee. Whilst
it is true that the word “prior” is not contained in the statutory
provisions it has to be remembered that under Section 3(1) the sub-committee
could only give directions directing the attendance of persons if it had the
consent of the Compellability Committee. As such a consent has the special
under Section 3(9)(a) as one which “
be in writing”
it follows that in the absence of a consent which satisfies that statutory
provision there was no consent extant at the time that the directions were
issued on the 12th April 2001. It follows therefore that there was no
authority vested in the sub-committee to issue these directions.
turn to consider the terms of the consent as it ultimately emerged on the 30th
April. We have already reproduced it in this Judgment. Section 3 (9)(b) of
the Act requires that the consent shall relate to a specified committee and
specified functions of that committee and may relate, as may be specified in
the consent, to one or more specified directions or classes of directions, or
all directions, in relation to a specified person or matter or persons or
matters generally and shall be subject to such restrictions, limitations or
other conditions (if any) as may be specified in the consent.
the present case it is to be noted that there is no reference to the functions
of the sub-committee. That is a mandatory requirement of the sub-section and a
failure to refer to the specified functions of the sub-committee means that
the consent as it emerged on the 30th April 2001 was not in compliance with the
statutory provisions. Given the serious consequences which flow in respect of
a person to whom a direction such as the ones in suit are given these failures
to comply with statutory provisions cannot be treated lightly or overlooked.
is a further flaw which is attendant upon this whole procedure. When the
application was made to the Compellability Committee it was misrepresented to
it by what was enclosed in the documents sent forward that certain powers had
been given to it which had not in fact been given at all and were not until
the following day. In addition there was a failure to comply with the
requirements of Rule 14 of the Rules and Guidelines for Committees which sets
out with particularity the information which must be placed before the
Compellability Committee. At the time the application was made to the
Compellability Committee the sub-committee was not mandated to make findings of
fact and of course the order of establishment enclosed did not set out the
amendment of the preceding day - 10th April 2001. There was therefore incorrect
information placed before the Compellability Committee and it is our view that
thisvitiated such consent as was given. The Compellability Committee ought to
have directed its mind to granting a consent which would comply with the
provisions of sub-section 9(b) and that meant that it would have to specify the
functions of the Committee and the other matters set forth in that sub-section.
The misrepresentation of the true position even if by accident in our view
vitiates the purported consent given.
follows that as there was no valid consent there was no entitlement to issue
the directions. The applicants were not obliged to comply with them and the
directions of the 12th April 2001 are of no effect.
have already set out the tortuous history of the various resolutions passed
pertaining to the sub-committee subsequent to the passage of the resolutions by
both Houses on the 25th October 2000. Leaving aside the error in the Senate
reference for the moment it is clear that both Houses simply referred the
report of the Commissioner to the Joint Committee.
the 8th March 2000 the Joint Committee set up the sub-committee. It was
established to consider the report and to consider submissions received thereon
and to report to the Joint Committee thereon (see paragraph 1a of the Order).
Order of the 8th March at paragraph 1(d) and (e) contained certain restrictions
on the activities of the sub-committee. It was restricted both as to functions
and as to powers. The functions had to relate to such public affairs
administered by the Department of Justice, Equality and Law Reform and the
Department of Defence as the sub-committee might select including bodies under
the aegis of those Departments in respect of Government policy and such matters
of policy for which the Ministers in charge of those Departments were
officially responsible as it might select.
powers were restricted as of then to inter alia taking oral and written
evidence and printing and publishing from time to time minutes of such evidence
taken in public along with powers to invite and accept written submissions and
the other powers which we have already set forth in this Judgment.
the 10th April 2001 the Joint Committee amended its Order of the 8th March in
the fashion already set out in this Judgment. The effect of that was to
permit the sub-committee to hear evidence in accordance with the provisions of
the Act and to report to the Joint Committee thereon and to include its
findings and conclusions and recommendations if any.
the following day the sub-committee asked the Compellability Committee for the
necessary consent under the Act for the express purpose of permitting the
sub-committee to enquire into the Abbeylara incident and related matters and to
address possible conflicts of fact, as in the opinion of the sub-committee
arose directly or indirectly from oral or documentary evidence.
is acknowledged by Counsel who appeared on behalf of the sub-committee that
errors did occur in relation to these resolutions but he says we ought to
overlook them and adopt the approach of Geoghegan J. in
Haughey v Moriarty
where at page 16 he said
if that approach were to be adopted however, does it admit of the sub-committee
transforming the remit given to it as being one which entitles it to (to use
its own words) “
the Abbeylara incident and related matters and address possible conflicts of
fact, as in the opinion of the sub-committee, arise directly or indirectly from
oral or documentary evidence”?
do not think so.
the first instance the report was merely referred to the Joint Committee. It
in turn required the sub-committee to consider the report and submissions
received thereon and to report back. That was subject to the limitations which
we have already pointed out. True it is that on the 4th April power was given
to send for persons, papers and records and on the 10th April power was given
to hear evidence. But it was the act of the sub-committee itself that
transmuted the instructions given to it into one which required it
to“enquire into the Abbeylara incident.”. That was not its task.
Its task was to consider and report on the Commissioner’s report on the
is quite clear from a perusal of the transcripts and the video tapes of the
hearings that what was being engaged upon was much more extensive than that.
It was as the sub-committee itself says an enquiry into the Abbeylara incident.
That was a self written brief which went beyond what was asked of the
sub-committee. To adapt the words of WarrenC.J. to the instant case -
“an essential premise in this situation is that the House or Senate shall
have instructed the Committee members of what they are to do with the power
delegated to them. That requires that the instructions to an investigating
committee spell out that group’s jurisdiction and purpose with sufficient
particularity. Those instructions are embodied in the authorising resolution.
That document is the committee’s charter.”
sub-committee cannot go beyond the functions and powers
upon it. To transform a requirement that it consider and report upon a report
into an investigation of the underlying events which gave rise to the report
was to go too far. No such authority was given and the sub-committee from
11th April 2001 acted ultra vires the authority given to it. Accordingly the
applicants succeed on this part of their case.
on behalf of the sub-committee identified the central issue which would fall to
be determined by it as being an answer to this question “
this death avoidable”?
acknowledged that the sub-committee in carrying out its task embarked upon an
adjudicative procedure. It quite clearly was prepared to find facts and make
findings including if appropriate a finding of unlawful death against a police
officer or officers.
such matters to be determined by a court whether civil or criminal a well
tested process and procedure
be embarked upon. It would involve the calling of evidence, the testing of
that evidence in cross examination, the ability on the part of the person who
was accused to give his own evidence, have it tested and then to make
is undoubtedly true that the form of enquiry being conducted by the
sub-committee was not typical of that which applies in court. It was not an
adversarial procedure as such. That of itself of course is not objectionable
provided that the procedures followed and the rightsafforded to the person who
runs the risk of having such a finding made against him comply with
the procedures which the sub-committee indicated it would follow it was made
clear that all interested parties would be supplied with a list of the
witnesses which the sub-committee considered necessary for its deliberation.
All interested parties were then invited to indicate to the sub-committee, upon
receipt of the list, which, if any of the witnesses it intended to seek to
cross examine and the basis upon which it claimed to be entitled to cross
examine such witnesses. Any such witness was to be entitled to be told of any
persons who might bepermitted to cross examine them and be heard as to why such
person ought not to be so permitted.
procedure that was to be followed
that when a witness was called to give evidence he
be sworn. With the leave of the sub-committee he might make an initial
statement either verbally or in confirmation of a written statement which would
have been provided to the sub-committee in advance of the hearing. Thereafter
the witness was to be subject to questioning by the sub-committee. That was to
take the form of questions by the Chairman of the sub-committee and such other
members of the sub-committee nominated as the Chairman might direct in respect
of that witness and then by other members of the sub-committee. Thereafter,
and subject to an important proviso to which we will turn in a moment, the
witness might be cross examined by, or on behalf of, any of the interested
parties in respect of whom leave to cross examine such witness had been
granted. Thereafter the Chairman of the sub-committee was entitled to address
further questions for the purposes of clarification or elucidation of matters
not previously fully dealt with. The important proviso which we have mentioned
was that the sub-committee would indicate the parties who would be entitled to
cross examine any witness. The sub-committee might decide to arrange for the
cross examination of witnesses at a time or times other than immediately
following the examination by members of the sub committee. The above recital
is taken from the document which set out the procedures which were to be
is quite clear from them that a witness could be cross examined only if leave
to do so had been granted by the sub-committee. Not merely that but the
sub-committee having indicated the parties who should be entitled to cross
examine any witness “
decide to arrange for the cross examination of witnesses at a time or times
other than immediately following the examination by members of the
That of course is a departure from the norm where cross examination follows
immediately upon direct examination. But it might be thought that such a
departure was exceptional having regard to the way in which paragraph (f) of
the proceduresdocument is worded. When however one turns to the witness
schedule which was produced one finds the following:
the matter does not stop there. The witness schedule for the hearings which
has been put in evidence envisaged a ten day hearing stretching from the 24th
April until the 11th May. During that time no fewer than 57 witnesses were to
be heard. No cross examination was envisaged until day 9 of the enquiry. In
the meantime all of these witnesses were to be subjected to questioning from
the Chairman and members of the committee but with the right to cross examine
deferred in general until the last day but one. Not merely was cross
examination to be conducted on that day but closing submissions were also to be
made by therelevant parties. True it is that there was a possibility of
further evidence being heard on the 10th day and the schedule might be revised
in accordance with the note at the end of the schedule.
procedural issues were to be determined by the sub-committee on the first day
of the hearing. We do not find anything said there which altered the
procedures which had been outlined. Indeed it was made clear by the Chairman
on the first day that at a meeting held on the 18th April 2001 the
sub-committee envisaged the hearings lasting approximately sixty hours
beginning on the 24th April and finishing not later than Friday 11th May.
allowing for the possibility of some extension of this time or the possibility
of special applications being made to take cross examination prior to the time
envisaged, can it be said that these procedures accord with the rights afforded
deferment in general of all cross examination to the end and then only with
leave of the committee, in our view, falls far short of what is envisaged in
Prior notification of the issues upon which it is proposed to cross examine
empties it of much of its value.
decision of the Supreme Court in
predicated a simple sequence. It involved calling the evidence, testing it by
cross examination and making submissions. The sub-committee here took it upon
itself to define other procedures because it took the view that Parliamentary
procedure required it. It in effect said as a matter of general application
cross examination was to be both deferred and limited. Furthermore the
Chairman made it clear that the direct part to be played by lawyers was to be
resorted to only where absolutelynecessary. He said “
sub-committee will observe this stricture as all the questioning on behalf of
the sub-committee will be conducted by the members.”
All of this suggests that it was a clear attempt to rewrite the rules
and to do so in a manner which substantially diluted and negated them. Even if
this had been done by a tribunal of enquiry presided over by a Judge (which per
Murphy J. in
Lawlor v Flood  3 I.R. 107
Finlay C.J. in
v Hamilton  2 I.R. 542
was regarded as a substantial guarantee that fair procedures would be
followed) it would not survive criticism. Here with no Judge and no such
guarantee and in reliance upon what appears to be Parliamentary procedure there
was an attempt to substantially rewrite and recast the entitlements of persons
appearing before the sub-committee.
are in no doubt but that some at least of the applicants in this case fall
within the category of persons identified by O’Dalaigh C.J. in the
passage which we have just cited. The court is equally satisfied that the
rights identified as being applicable to such a person were not observed and
that accordingly such persons were being and likely to continue to be subjected
to unfair procedures which were unlawful.
point has been taken that this complaint is premature and reliance is placed
upon the Judgment of McLoughlin J. in
who was not prepared to condemn the committee’s procedures in that case
because the point had not been reached, he said, when cross examination arose.
But the Judgment whilst acknowledging that that point had not been reached
nonetheless held that the procedures adopted violated Mr. Haughey’s
rights. The rights of the applicants here were likewise violated.
of the previous areas of complaint which have been dealt with in this Judgment
proceed on the basis that there was jurisdiction on the part of Parliament to
authorise an enquiry of the type in suit. The applicants take issue with that
proposition and so we now turn to consider that question.
must be made clear at the outset that the objection which is raised concerns
the conduct of an enquiry which has adjudicative functions and can make
findings of fact adverse to the good name and reputation of a citizen. There
is no doubt that the present sub-committee sees itself as having just such a
applicants contend that Parliament does not have power to conduct or authorise
the conduct of an investigation with such an adjudicative power. Not merely
that but it says that there are structural inabilities in the conduct of such
an enquiry by Parliamentarians by reason of objective bias deriving from their
representative roles. The respondents deny these contentions and allege that
there is an inherent power in Parliament which authorises the conduct of such
an enquiry. Furthermore they say that if a public enquiry under the 1921
legislation can be set up on foot of resolutions passed by Parliament it must
be in a position to conduct such enquiries itself.
is common case that the sub-committee must have a lawful authority for carrying
out the task which it embarked upon. It looks to the resolution of the Joint
Committee which in turn looks to the resolutions of the Houses as authority.
But the applicants ask the question where does such authority derive from?
Articles 15 to 27 of the Constitution deal with considerable particularity with
the National Parliament, nobody asserts that there is an express authority to
be found in the Constitution authorising an investigation of this type.
respondents seek to establish the entitlement on the part of Parliament to
conduct or authorise one of its committees to conduct enquiries of this type by
reference to what is described as the inherent power of Parliament. The
respondents other than Deputy Shatter do not point to any particular article of
the Constitution with a view to establishing this inherent power but rather say
that the entitlement to conduct such an enquiry is fundamental to the
separation of powers. The first problem which confronts them with such an
assertion is that if the matter is as fundamental as they allege, is it not
extraordinary that it was not included in the most detailed provisions of the
Constitution dealing with the National Parliament? Deputy Shatter anchors his
case to some extent at least in Articles 5, 6 and 45 of the Constitution.
Again, it would seem strange that a matter as allegedly fundamental as this
would not be dealt with in the constitutional articles which deal with the
National Parliament but rather would be gleaned inherently from others. But in
essence Deputy Shatter, althoughmentioning these three articles, really
formulates his case on the description of the State as being democratic.
has been drawn to legislation ranging from the Oireachtas Witnesses Oaths Act
of 1924 to the 1997 Act. The 1924 Act provided for the administering of an
oath before inter alia a Joint Committee of both Houses of the Oireachtas.
That was applied to the Houses of the new Oireachtas by the provisions of the
Constitution (Consequential Provisions) Act 1937. Then came the 1970 Act which
was at the heart of the Haughey case. That conferred powers of compulsion upon
a single committee for the purposes of a specific enquiry referred to in a
resolution of the Dail which in turn is referred to in the Act. In 1976 the
Committees of the Houses of the Oireachtas (Privilege and Procedure) Act
affirmed the privilege of members of committees of either or both Houses of the
Oireachtas. The Select Committee on Legislation and Security of Dail Eireann
(Privilege and Immunity) Act, 1994, was passed in order to address a specific
enquiry being conducted by a Dail committee. In that case it was of interest
to note that when that Select Committee reported, it merely sent the transcript
of the hearings to the Dail but made no findings of fact.
interesting feature of all of these acts with the exception of that passed in
1970 is that none of them confers an express power on the Houses of Parliament
to convene enquiries of the type involved here. The 1970 Act expressly
referred to a subject matter identified in aresolution of the Dail. It was
exceptional in that regard. It did not survive Constitutional scrutiny.
1997 Act is perhaps the most extensive of all of these pieces of legislation.
The respondents contend that inherent in the powers which were conferred by
that Act is an entitlement to produce a report of the type which is
contemplated here. However it must be said that despite the extensive nature
of this legislation it does not expressly confer such power. Indeed it does
not even confer a power to enquire such as is contained in the Tribunals of
Inquiry (Evidence) Act, 1921. Given that the Act does not itself confer this
power can it be said to arise by implication? It is said that the Act must be
so construed because of a pre existing power in Parliament to conduct enquiries
of the type in suit. This proposition would explain why the Act of 1997 came
about i.e. to give specific statutory powers in aid of an inherent entitlement.
That begs the question as to whether there is such an inherent entitlement.
his book ‘Trial by Tribunal’ Professor George Keeton sets out the
history of the power of Parliamentary investigation. Such power appears to
have originated in 1678 and was first employed to investigate the state of the
navy which as well as allegedly wasting public moneys was thought to be riddled
with popery. The Professor concludes “
Committee of Enquiry, therefore, appears in its first use as a tribunal of
investigation after the Restoration as a party instrument making no claim to
impartiality. This defect remained a feature of it throughout its
committees of enquiry followed and as a matter of historical fact the
Westminister Parliament developed a power to investigate, summon witnesses and
demand the production of documents. Thus the notion of the “
Court of Parliament”
became a feature of British constitutional theory with practical effects.
Many investigations were conducted the last such being the Marconi Enquiry in
1912. That and several other celebrated committees and commissions of enquiry
are regarded as being largely responsible for the passage into law of the 1921
Act which permits the setting up of a tribunal of enquiry. Such tribunals are
considered to be much superior to the Parliamentary Tribunal for a variety of
reasons not least of which that they were normally presided over by a Judge,
had power to elicit evidence on oath and were considered appropriate to secure
a thorough and impartial investigation.
background to the 1921 Act is summarised by Hamilton C.J. in
(1999) 3 IR 1 at 54 - 55
Keeton expresses the view that the Select Committee had fallen into such
discredit as a means of investigating alleged delinquencies that it was
difficult to imagine a return to that method of investigation.
it likely that the drafters of the Free State Constitution of 1922 (just one
year after the passage of the 1921 Act) would have thought it wise to revert to
or continue such a discredited form of investigation? The answer appears to be
attainment of independence and the coming into force of the 1922 Constitution
of the Irish Free State brought about a fundamental change in the
constitutional order. Insofar as the Westminister entitlement to conduct
enquiries was concerned Professor Leo Kohn in his work
Constution of the Irish Free State”
Kohn specifies the many respects in which powers of an inherent nature within
the Westminister Parliament were not carried over into the Free State
Constitutions. The Free State Constitution gave positive powers and defined
them but did not leave any place for an inherent power such as is contended for
was no inherent power in the 1922 Constitution to conduct investigations of
this type in suit. The 1937 Constitution does not contain an express proviso
authorising it. This similarity of the provisions dealing with the National
Parliament in both Constitutions would suggest that there is no inherent power
of the type contended for. To put it as Professor Gwynn Morgan states
of these views however the respondents contend that there are judicial dicta
which are binding upon this court and which make it plain that the courts have
taken the view that enquiries of this sort are indeed permissible.
final part from the quotation leads on to an issue which can be disposed of at
this stage before returning to consider whether a sub-committee of the type in
suit here is exercising powers which are “
by a legislature in a democratic State.
is the point which is made to the effect that if Parliament can pass a
resolution which leads to the setting up of a public enquiry under the 1921 Act
then it can surely resolve to conduct such an enquiry itself. It is said that
a tribunal of enquiry is the agent of the legislature. The agent can only have
the powers which the principal has and therefore the legislature could conduct
such an investigation itself. At first sight that is an argument that may
appear attractive. But is it a correct analysis of the legal situation?
analysis of the position by Costello J. makes it plain that the legislature is
not the appointing body of a tribunal under the 1921 Act. It is devoid of any
authority to make such an appointment. It must follow therefore that the
argument based on agency fails. As the legislature cannot appoint a tribunal
under the 1921 Act it is not possible to deduce from the existence of such a
tribunal an inherent power in the legislature such as is contended for.
therefore remains the question as to whether this power of adjudication can be
considered to be one normally and necessarily exercised by a legislature in a
democratic state. Insofar as this State is concerned if the power exists it
has been sought to be exercised on only four occasions in the history of the
State. The first occasion gave rise to the decision of
second occasion was in respect of the Deposit Interest Retention Tax enquiry
where, save for one issue concerning an alleged tax amnesty given to certain
banks, there were no other issues of fact requiring adjudication. The third
occasion is the present case and the fourth concerns another parliamentary
committee which is also the subject matter of Judicial Review proceedings.
notable feature of the inherent power asserted here is that it is a bare power
to enquire. In other legislatures where such power does exist it is always
accompanied by a co-existing inherent power to enable effect to be given to it.
That co-existing power is one which permits of witnesses being compelled to
appear under threat of sanction if they fail to do so.
the United States of America in the case of
McGrain v Daugherty 273 U.S. 135
Supreme Court per Van Devanter J. considered the power of Congress to conduct
enquiries. Having considered a number of cases that Judge said at page 173 - 175
cases demonstrate that it is not normal to have a bare power of adjudication
inhering in parliament. Nor could such a power be considered necessary because
it is of no benefit without the powers of compulsion in respect of attendance
and punishment in default.
Court accepts the reliance placed in particular by Mr. Shatter on the statement
from Van Devanter J’s judgment to the effect that a legislative body
cannot legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or change. It makes
sense that if the legislative body itself does not possess the requisite
information it can have recourse to others who do possess it. But that does
not mean that it has or is entitled to exercise an adjudicative jurisdiction of
the type which is sought to be exercised here.
number of further points require to be addressed before expressing our final
conclusion on this aspect of the matter. The respondents contend that the
argument made concerning the lack of an inherent jurisdiction to conduct an
enquiry of the type in suit runs counter to the decision of in
Despite the extensive nature of the argument made in that case it does appear
that this point was never argued. A point not argued is a point not decided.
It may not have been raised for any number of reasons. One perhaps was that
the particularenquiry in that case was being carried out with specific
statutory powers pertinent to that enquiry. For whatever reason the point was
not argued or decided and therefore we do not think that the decision in
can be relied upon as providing judicial authority for the notion of an
inherent power to conduct an enquiry of the type involved in this case.
attention was drawn to specific constitutional provisions where powers of
adjudication are, it is said, given to parliament. These relate to an
adjudication upon the President’s behaviour and the removal of a judge
12.10 sets out with particularity the procedure which is to be followed and
confers an express power in that regard. Article 13.8.2 permits of the
behaviour of the President being brought under review in either of the Houses
of the Oireachtas for the purposes of sub-article 10
Article 12 of the Constitution or by any court, tribunal or body appointed or
of the Houses for the investigation of a charge under Section 10.
35.4 provides that a Judge of the Supreme Court or the High Court shall not be
removed from Office except for stated misbehaviour or incapacity, and then only
upon resolutions passed by Dail Eireann and by Seanad Eireann calling for his
do not see how these specific constitutional entitlements which were conferred
on parliament can be used to imply some wide ranging power of fact finding and
adjudication. These are specific and explicit and limited entitlements which
were conferred and do not imply a greater or more wide ranging power of
adjudication. In fact they would suggest the contrary.
have therefore come to the conclusion that the applicant’s argument is
correct namely that there is no inherent power in parliament to conduct an
enquiry involving adjudicative functions of the type which were sought to be
exercised by the sub-committee in this case. Such a power is not inherent
under the present constitutional regime governing the National Parliament nor
did it exist in the Parliament established under the Constitution of the Irish
Free State of 1922.
so concluded, the Court does not deem it either necessary or appropriate that
it should proceed to make findings concerning two remaining issues. One is the
alleged inability of elected representatives to conduct adjudications of the
type in suit because of perceived or structural bias arising particularly from
their representative functions as elected parliamentarians. The other is the
alleged inappropriateness of a senator being present on the sub-committee.