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Cite as: [2001] IEHC 133

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Maguire v. Ardagh [2001] IEHC 133 (23rd November, 2001)

THE HIGH COURT
Morris P.
Carroll J.
Kelly J.
JUDICIAL REVIEW
2001 Record Number 329JR
BETWEEN

MARTIN MAGUIRE, FRANK McHUGH, TOM DOOLEY,
MARY MANGAN, DAN MONAGHAN, ANTHONY FOLEY,
JAMES QUINN, ALAN MURRAY, MAEVE GORMAN, JOHN GIBBONS,
COLIN WHITE, JACK KILROY,GERRY BARNES, EUGENE DUNNE,
JUSTIN BROWNE, EUGENE BOLAND, JAMES CAMPBELL,
MICHAEL JACKSON, GERRY RUSSELL, MICHAEL O’SULLIVAN,
AIDAN McCABE, WILLIAM SISK,RONAN CAREY, TONY RYAN
JOSEPH FINNEGAN, OLIVER FLAHERTY, DESMOND MALLEY,
PETER EARLEY, OLIVER CASSIDY, DAVID MARTIN,
MARY ANN O’BOYLE, TURLOUGH BUREN, JOHN BOYLE,
BLAITHIN MORAN, SINEAD CONNIFFE AND FRANK REYNOLDS
APPLICANTS
AND
SEAN ARDAGH, MONICA BARNES, BRENDAN HOWLIN,
MICHAEL MOYNIHAN, MARIAN McGENNIS, ALAN SHATTER,
DENIS O’DONOVAN, THOMAS ENRIGHT, BEVERLEY COOPER-FLYNN,
FRANCES FITZGERALD, JOHN McGUINNESS, JAN O’SULLIVAN,
BILLY TIMMINS, EDDIE WADE, GEORGE V. WRIGHT, EDDIE BOHAN,
HELEN KEOGH, TONY KETT AND KATHLEEN O’MEARA, MEMBERS
OF THE JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND
WOMENS’ RIGHTS BEING THE MEMBERS FOR THE TIMEBEING
OF THE OIREACHTAS JOINT COMITTEE ON JUSTICE, EQUALITY,
DEFENCE AND WOMENS’ RIGHTS, IRELAND AND THE
ATTORNEY GENERAL
RESPONDENTS

Judgment of The Court delivered the 23rd day of November 2001

Introduction

1. On 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.


2. Chief 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 address:


(a) The preparation of a file for submission to the Director of Public Prosecutions including recommendations or otherwise, as to whether criminal charges should be preferred;

(b) The preparation of all necessary documents for the Coroner and,

(c) An assessment of the effectiveness, or otherwise of the Garda operation.

3. Chief Superintendent Culligan commenced his investigation on the 21st April 2000 and submitted his report to the Commissioner on the 28th June 2000.


4. The Commissioner in turn reported to the Minister for Justice, Equality and Law Reform.


5. The 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.


6. Submissions 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 Judicial Review.


7. The work of the sub-committee has been postponed pending the determination of these proceedings.


The Parties

8. All 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.


9. All 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”).


10. The 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”).


11. There 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 Committee.”


The Reference from the Dail

12. On the 25th October 2000 the Dail resolved as follows:

“That the Report to the Minister for Justice, Equality and Law Reform by
the Commissioner of the Garda Siochana on the fatal shooting of John Carthy
at Abbeylara, Co. Longford, on the 20th April, 2000 be referred to the Joint
Committee on Justice, Equality, Defence and Womens’ Rights in accordance
with paragraph (2) of the Orders of Reference of that Committee.”

13. The 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:


“(a) The Select Committee shall be joined with the Select Committee to be appointed by Seanad Eireann to form the Joint Committee on Justice, Equality and Womens’ Rights to consider -
(i) such public affairs administered by the Department of Justice, Equality and
Law Reform and the Department of Defence as it may select, including bodies under the aegis of those Departments in respect of Government policy,

(ii) such matters of policy for which the Ministers in charge of those
Departments are officially responsible as it may select,

(iii) the strategy statement laid before each House of the Oireachtas by the
Ministers in charge of those Departments pursuant to Section 5(2) of the
Public Service Management Act, 1997, and shall be authorised for the
purposes of Section 10 of that Act,

(iv) such Annual Reports or Annual Reports and Accounts, required by law and
laid before either or both Houses of the Oireachtas, of bodies under the
aegis of the Department(s) specified in paragraph 2(a)(i) and the overall
operational results, statements of strategy and corporate plans of these
bodies as it may select.

Provided that the Joint Committee shall not, at any time, consider any matter
relating to such a body which is, which has been, or which is, at that time,
proposed to be considered by the Committee of Public Accounts pursuant
to the Orders of Reference of that Committee and/or the Comptroller and
Auditor General (Amendment) Act, 1993.

Provided further that the Joint Committee shall refrain from enquiring into in
public session, or publishing confidential information regarding, any such
matter if so requested either by the body or by the Minister in charge of that
Department, and

(v) Such matters relating to womens’ rights generally, as it may select, and in this
regard the Joint Committee shall be free to consider areas relating to any
Government Department, and

(vi) Such other matters as may be jointly referred to it from time to time by both
Houses of the Oireachtas,
and shall report thereon to both Houses of the Oireachtas.

14. It is clear that when referring the Report to the Joint Committee the Dail did so by reference to paragraph (2) in its entirety of the Orders of Reference.

The Reference from the Senate

15. On the 25th October 2000 the Senate resolved as follows:


“That the Report of the Minister for Justice, Equality and Law Reform
by the Commissioner of the Garda Siochana on the fatal shooting of
John Carthy at Abbeylara, Co. Longford on the 20th April, 2000 be
referred to the Joint Committee on Justice, Equality, Defence and Womens’
Rights in accordance with paragraph 1(a)(v) of the Orders of Reference of
that Committee.”

16. Paragraph 1(a)(v) of the Senate Orders of Reference reads as follows:


“That a Select Committee consisting of five members of Seanad Eireann
shall be appointed to be joined with the Select Committee in Dail Eireann
to form the Joint Committee on Justice, Equality and Womens’ Rights to
consider -
(v) Such matters relating to womens’ rights generally, as it may select and
in this regard the Joint Committee shall be free to consider areas relating
to any Government Department,”

17. There 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:

1
“Such other matters as may be jointly referred to it from time to time by both
Houses of the Oireachtas,
and shall report thereon to both Houses of the Oireachtas.”

18. The Respondents say that the Senate intended to make the reference to the Joint Committee pursuant to paragraph 1(a)(vi) but it clearly did not do so.


The Joint Committee

19. Both 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.


The Action taken by the Joint Committee

20. The 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.


21. On the 8th March 2001 the Joint Committee purported to establish a sub-committee to be known as the Sub-Committee on the Abbeylara Incident.


22. Before 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 “shall have the powers defined in Standing Order 78(1) to (9)”. The Senate directed that the Joint Committee “ shall 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.


Order establishing the sub-committee

23. On the 8th March 2001 the Joint Committee set up the sub-committee. The Order reads as follows:



(1) “That -
(a) a sub-committee (to be called the Sub-Committee on the Abbeylara incident) be established to consider the report to the Minister for Justice, Equality and
Law Reform by the Commissioner of the Garda Siochana on the fatal
shooting of John Carthy at Abbeylara, Co. Longford on 20th April 2000 and
to consider submissions received thereon, and to report to the Joint Committee
thereon;

(b) the sub-committee shall consist of seven members of whom six shall be
members of Dail Eireann and one shall be a member of Seanad Eireann;

(c) the quorum of the sub-committee shall be three;

(d) in relation to the matter specifically referred to in paragraph (a) above, the
sub-committee shall have only those functions of the Joint Committee which
are set out in sub paragraphs 2(a)(i) and (ii) (Dail) and in sub paragraphs
1(a)(i) and (ii) (Seanad) of the Joint Committees order of reference and

(e) the sub-committee shall have the powers of the main committee as contained
in Standing Order 78A(1),(2) and (4) to (9) (Dail) and in Standing Order
62A(1),(2) and (4) to (9) (Seanad).”

24. It 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.


Functions Conferred

25. The functions conferred on the sub-committee were by virtue of paragraph (d) of the Order establishing it confined to its considering:

(i) such public affairs administered by the Department of Justice, Equality and Law
Reform and the Department of Defence as it may select, including bodies under the aegis of those Departments in respect of Government policy and

(ii) such matters of policy for which the Ministers in charge of those Departments are officially responsible as it may select.

26. This is so even though the original reference to the Joint Committee by the Senate did so by reference to neither of those matters.


Powers Conferred

27. The powers conferred on the sub-committee having regard to the terms of sub-paragraph (e) of the Order establishing it were limited as follows: They were


(1) power to take oral and written evidence and to print and publish from time to time minutes of such evidence taken in public before the sub-committee together with such related documents as the sub-committee thinks fit,

(2) power to invite and accept written submissions from interested persons or bodies,

(3) power to draft recommendations for legislative change and for new legislation and to consider and report to the Dail on such proposals for EU legislation as might be referred to it from time to time,

(4) power to require that a member of the Government or Minister of State should attend before the sub-committee to discuss policy for which he is officially responsible,

(5) power to require that a member of the Government or Minister of State should attend before the sub-committee to discuss proposed primary or secondary legislation,

(6) subject to any constraints otherwise prescribed by law, power to require that principal office holders in bodies in the State which are partly or wholly funded by the State or which are established or appointed by members of the Government or the Oireachtas shall attend meetings of thesub-committee, as appropriate, to discuss issues for which they are officially responsible.

(7) power to engage, subject to the consent of the Minister for Finance, the services of persons with specialist or technical knowledge to assist it.

(8) power to undertake travel, subject to certain restrictions.

28. The above specifies both the functions and the powers of the sub-committee when the next event occurred. It happened on the 4th April 2001.


The Events of the 4th April 2001

29. On the 4th April 2001 a resolution was passed by both Houses of the National Parliament. It reads as follows:

“that the sub-committee on the Abbeylara incident, established by order of the Joint
Committee on Justice, Equality, Defence and Women’s Rights on the 8th March 2001,
shall have the power to send for persons, papers and records.”

30. The 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 Events of the 10th April 2001

31. On 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 the words

“and to report to the Joint Committee thereon;”
and the insertion of
“and, if it considers it necessary to do so, to hear evidence in accordance with the
provisions of the Committees of the Houses of the Oireachtas (Compellability,
Privileges and Immunities of Witnesses) Act, 1997, and to report to the Joint
Committee thereon and should include its findings and conclusions and
recommendations, if any;”

32. Although 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.


The Events of 11th April 2001

33. On 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:

“that in accordance with the provisions of Section 3 of the Committees of the
Houses of the Oireachtas (Compellability, Privileges and Immunity of Witnesses)
Act, 1997, the sub-committee should have the power to direct the attendance of
witnesses, to direct persons in attendance to produce documents in their
possession or power, to direct persons to send to the sub-committee any such
documents and to direct persons to make discovery on oath of any documents
where such evidence or documents are relevant to the proceedings of the
sub-committee.”

34. No such amendment had 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.


35. In the document submitted to the Compellability Committee the sub-committee asked for the necessary consent under the Act for


(a) “the express purpose of permitting the sub-committee on the Abbeylara incident to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact, as in the opinion of the sub-committee, arise directly or indirectly from oral or documentary evidence; and

(b) on the basis that any variation, amendment or adjustment of the procedures of the sub-committee appended to this request for consent to issue directions would be notified to the Joint Sub-Committee on Compellability without undue delay.”

36. This is the first occasion on which the sub-committee described its functions as requiring it to “enquire into the Abbeylara incident.”


37. The 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 Events of 12th April 2001

38. On the 12th April 2001 the Joint Committee amended again the terms of reference of the sub-committee. It did so by including the following:


1(f) “that in accordance with the provisions of Section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunity of Witnesses) Act, 1997 the sub-committee shall have the power to direct the attendance of witnesses, to direct persons in attendance to produce documents in their possession or power, to direct persons to send the sub-committee any such documents and to direct persons to make discovery on oath of any documents where such evidence or documents are relevant to the proceedings of the sub-committee”

39. On 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.


40. Two days later on the 26th April 2001 a further purported amendment to the sub-committee’s order of reference was brought about.


The events of the 26th April 2001

41. On this day the Joint Committee ordered

“the deletion on the 2nd line of paragraph 1(d) of the word “only” before “those”, and in addition, by the insertion of the words “and (vi)” before “(Dail)” and the words “and (v)” before “(Seanad)””.

42. This amendment was made two days after the formal hearings began, long after compellability powers were given and even further after the two Houses had set out the terms of reference.


43. The 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. In order to understand what occurred on the 11th April it is however necessary to consider the terms of the 1997 Act.


The 1997 Act

44. The 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 such witnesses.


45. Section 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.


46. Under sub-section 7 of Section 3 it is provided that where a person disobeys a direction of the sub-committee the High Court may, on application to it in a summary manner in that behalf by the chairman of the committee concerned on 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.


47. In 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)).


48. From 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


49. It 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).


50. Section 3(9) provides as follows:


(a) a consent of the appropriate sub-committee under sub-section (1) (“a consent”) 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;

(b) a 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.

(c) a document -
(i) produced at a meeting of a committee by the chairman of the committee
or another member of the committee who is acting as chairman thereof, or

(ii) produced in a court by the chairman of a committee or another member of the
committee duly authorised in that behalf by such chairman,
and purporting to comply with paragraph (a) and to contain a consent relating to that committee, shall, unless the contrary is shown, be evidence -
(I) of the consent and that it relates to that committee, to the
functions of that committee specified in the consent and to
the directions or classes of directions so specified and that those directions or classes of directions relate to the persons or matters so specified, and

(II) of any restrictions, limitations or other conditions so specified to which the
consent is subject.”

51. With this short summary of the relevant statutory provisions it is now possible to turn to what occurred on the 11th April 2001.


Events of 11th April 2001

52. On 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.


53. It 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.


54. The 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.


55. At 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.


56. Rule 14 of the Rules and Guidelines for Committees pursuant to which the application was made to the Compellability Committee reads as follows:

“ a committee shall provide the following information when seeking
permission of the Compellability Sub-Committee to issue a direction
or directions:

(i) the nature and purpose of any investigation or proceedings
to be conducted by the committee and, in particular, whether
it is proposed to arrive at findings of fact or to express
opinions;

(ii) the reason it is considered necessary to employ powers under the
Act;

(iii) the particular directions which it is proposed to issue pursuant to
Section 3 of the Act; and

(iv) the procedures proposed to ensure compliance with Rule 3 above.

Rule 3 to which reference is made reads as follows:
“A committee shall exercise the powers conferred by the Act -

(a) in a manner which is in accordance with these rules,
its orders of reference and standing orders and having
regard to such guidelines as may be issued by the
Compellability Sub-Committee from time to time;

(b) in the context of making a report to either or both Houses
of the Oireachtas as appropriate; and

(c) where the committee has power to appoint a sub-committee,
through such a sub-committee (unless the committee concerned
is satisfied that there is good reason to the contrary). In cases
where the powers are exercised through a sub-committee, that
sub-committee shall report to the committee concerned.”

57. A variety of criticisms are levelled at what was represented to the Compellability Committee by the Sub-Committee but it is not appropriate to deal with them at this part of the Judgment.


58. The 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.


59. It 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:

Notice is hereby given that the following consent was granted by the Joint
Sub-Committee on Compellability (being the appropriate sub-committee by
virtue of Section 1 of the Committees of the Houses of the Oireachtas
(Compellability, Privileges and Immunity of Witnesses) Act, 1997 as amended)
at a meeting held on 11th April, 2001:

(1) that consent is hereby granted to the sub-committee on the Abbeylara
incident to issue directions (as provided for in the said Section 3) to
persons who have, in the opinion of the sub-committee on the Abbeylara
incident,

(a) a legitimate interest in the proceedings of the sub-committee; and

(b) evidence which it is felt to be material to the examination by the
sub-committee; and

(2) that such consent is granted
(a) for the express purpose of permitting the sub-committee on
the Abbeylara incident to enquire into the said incident and related matters and to address such possible conflicts of fact
as, in the opinion of the sub-committee on the Abbeylara
incident, arise directly or indirectly from oral or documentary
evidence; and

(b) on the basis that any variation, amendment or adjustment of the
procedures of the sub-committee on the Abbeylara incident
appended its request (sic) for consent will be notified to the Joint
Sub-Committee on Compellability without undue delay.

Seamus Brennan T.D.
Chairman of the Joint Sub-Committee
on Compellability.”

60. The 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.


The Hearings before the Committee

61. Hearings 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.


62. The 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.


63. Mr. Rogers concluded his submissions and requests for information as follows:

“Sir, I understand that this question may be one of some nitty gritty
complexity, just at the moment. I can tell you, Sir, it taxed me over the
lunch to fully grasp it but the reality is that there is a serious legal issue
now in relation to the continuance of this committee, certainly in relation
to the area covered by the proposed amendment, and in my respectful
submission, the proposed amendment or the amendment as affected
because it did not have the consent of the Compellability Committee
renders void the original Order. And, of course, I do ask how did you,
who determined to amend this Order? What body? Was it Dail Eireann?
Was it the Joint Committee or was it this Committee? And who are the
personnel that participated in the meeting at which the amendment was
affected? I am sorry I have to, I can only deal with this by way of questions
and the sort of submissions I have made which of necessity for the moment
are limited. I felt I should raise this this afternoon, Sir, because it looks
like we are now about to embark on a part of the enquiry which is going
to involve the calling of a lot of people from many places and I think this
is going to become a central issue, certainly for my clients, and it is a
matter about which I am exercised to advise them.

Chairman: Thank you Mr. Rogers. I must say that your legal submission, which I
respect, I feel at this point is based on spurious, as you say, nitty
gritty legalities. I think that it is -

Mr. Rogers: I can’t accept that Sir. This is a most unfortunate word you have
used and this type of language was used here yesterday by a
colleague of yours in this committee. With respect, Sir, it is not
fair to Counsel who have raised serious issues to describe
matters as being spurious. This type of language was used here
yesterday by

Chairman: I will withdraw -

Mr. Rogers: Deputy Howlin and I would ask him, too, to withdraw the type of
language he used.

Chairman: I will certainly withdraw the word “spurious”. I ask you to accept
that this is an Oireachtas Committee and I think that you are aware,
as all of the people in this country are aware, that we have the full
confidence, good will and support of all of the Oireachtas. This
attempt to actually put all of the legalities into place is leading to a
frustration and trying to put a spanner in the works of the good work
that this committee is now proceeding with.

Mr. Rogers: Those are most unfortunate words used by you, Sir. You are doing
your committee no justice by making such remarks. These are
entirely legal submissions to be made. This is a democracy. The rule
of law prevails in this democracy, thankfully.

Chairman: I accept that.

Mr. Rogers: And with respect, Sir, these are perfectly proper legal submissions and
I await your answers to the questions.”

64. The sub-committee suspended its sitting for fifteen minutes. At 3.50 p.m. the sub-committee recommenced and the Chairman addressed the submissions made earlier in the afternoon as follows:


Chairman: The sub-committee on the Abbeylara incident is back in public session. In
relation to Mr. Rogers’ submission, the committee is satisfied that it has the
powers to carry out its work and to continue its work. The committee,
however, recognises that the parties are entitled to full information as to the
Orders that were made conferring those powers and it is proposed that the
Secretariat of the sub-committee will furnish this information by way of
letter on Monday morning. In the meantime the committee intends to
continue its work Mr. Rogers.”

65. This 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 with now.


66. As 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 Application for Judicial Review

67. On 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:


“(1) A declaration that the conduct of a public enquiry with the aid of the power of the State (including the power to compel the attendance of witnesses and to compel the production of documents) and conducted by members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof, liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses is ultra vires the powers of such Houses.

(2) A declaration that public enquiries, delivery of reports, findings of fact or expressions of opinion, under the aegis and with the authority of, and enforced by the power of, the State (including the power of compulsory attendances of witnesses, and discovery of documents,) liable to result in adverse purported findings of fact or expressions of opinion, may not, consistent with the principles of Constitutional justice and fairness, be conducted by a Tribunal comprised of elected officials .

(3) A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights purportedly convened by resolution of the said Joint Committee, in purporting to report on and investigate the Abbeylara incident has acted ultra vires the powers conferred by the committes of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997.

(4) A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights purportedly convened by resolution of the said Joint Committee, in purporting to report on and investigate the Abbeylara incident, has acted ultra vires the powers conferred by the resolution of Dail and Seanad Eireann of 25 October 2000.

(5) An Order of Certiorari quashing the purported Orders of Dail and Seanad Eireann of 25 October 2000 purporting to refer the report of Chief Superintendent Culligan to the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights. (This relief was not pursued at the hearing).

(6) An Order of Certiorari quashing the resolution of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights of the 10th April 2001 whereby the said Joint Committee purported to extend the terms of reference of the sub-committee purportedly established on the 8th March 2001 by the said Joint Committee and whereby the said sub-committee was purportedly empowered if it considered it necessary to do so to hear evidence in accordance with the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 and to report to the Joint Committee thereon and to include its findings and conclusions and recommendations, if any.

(7) A declaration that the submission of the sub-committee on the Abbeylara incident to the Joint Committee on Compellability of Committees of Procedure and Privilege of Dail and Seanad Eireann made about the 11th April 2001 was made in breach of the terms of reference as comprised in the Order establishing the said sub-committee and without jurisdiction.

(8) An Order of Certiorari quashing the purported consent issued by the appropriate committee, as defined in Section 2 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997.

(9) A declaration that the proceedings of the sub-committee on the Abbeylara incident and, in particular, the directions to the applicants requiring them to attend before the committee and there to give evidence and to produce documents in their possession which were purportedly made on the 12th day of April 2001 are unlawful, ultra vires and void.

(10) A declaration that the purported amendment of the Order of Establishment of the sub-committee announced by the Chairman of the sub-committee on the 26th April 2001 is void and of no effect.

(11) A declaration that the procedures adopted by the said sub-committee do not comply with the requirements of natural and Constitutional justice.

(12) A stay pursuant to Order 84 Rule 26 on the proceedings of the said sub-committee. (This was not necessary since the sub-committee did not reconvene while these proceedings were extant).

(13) Liberty to file further Affidavits.

(14) Damages.

(15) Costs.

(16) Further or other relief.

The court will be dealing with the basis upon which these various reliefs are sought in the course of the Judgment and so it is not necessary to set out the grounds relied upon which are contained in the statement delivered pursuant to Order 84 Rule 20 of the Rules of the Superior Courts. It is sufficient to record that leave was given to apply for the aforesaid reliefs on all of the grounds set forth at paragraph (d) of that statement.

The Issues raised in these Proceedings
It is clear that a number of major issues have been raised by the applicants in these proceedings. They can shortly be described as follows:
(1) They contend that there is no entitlement express or implied on the part of the National Parliament or any committee or sub-committee thereof to conduct an enquiry of the type in suit. This is so, it is said, not merely because of the absence of any authority express or implied to mandate the carrying out of such an enquiry but elected representatives by reason of their position are incapable of conducting such an enquiry because of the existence of objective, or as it was sometimes referred to in argument, structural bias.

(2) Even if there was an entitlement to conduct an enquiry such as the one in suit the sub-committee was not authorised to do so. It acted in a manner ultra vires the powers conferred upon it. It is said it misdirected itself as to its entitlements and was never authorised to embark upon a hearing such as it did. Over and above that it is said that the various amendments which were carried out were unlawful.

(3) The applicants submit that even if the sub-committee was lawfully authorised to conduct the enquiry there was a failure in a number of material respects to comply with the statutory provisions of the 1997 Act.

(4) The applicants contend that even if all of the above contentions are found to be without merit nonetheless relief should be granted against the respondents because the procedures adopted by the sub-committee particularly those relating to cross-examination are not in compliance with well established norms of Constitutional justice.

Before any consideration can be given to the above contentions on the part of the applicants it is necessary to adjudicate upon a fundamental objection which has been taken by the respondents. They contend that the court has no jurisdiction to deal with certain of the applicants’ complaints.

Concessions
All of the respondents accept that certain of the complaints made by the applicants are capable of being adjudicated upon by this Court.

They concede that the Court is entitled to examine the procedures undertaken by the sub-commitee in the conduct of its hearings so as to ensure that they comply with Constitutional notions of fairness. It is not surprising that such a concession was forthcoming since that is precisely what the Supreme Court did in Re Haughey [1971] I.R. 217.

The respondents also accept that this Court has the power to entertain and adjudicate upon complaints concerning the implementation of and compliance with the provisions of the 1997 Act. But they say that that is the limit of the Court’s power. To give it a temporal limitation the reach of this Judicial Review cannot go back before the 11th April 2001 being the day upon which consent was sought from the Compellability Committee. All other complaints are, they say, incapable of being adjudicated upon by the Court because to do so would interfere with the separation of powers and constitute an improper trespass by the Court into a realm which is exclusively a matter for Parliament.

The Attorney General takes a slightly different view. He contends that the Court can examine and construe the various orders and resolutions which concern the sub-committee insofar as they relate to the operation of the statutory powers contained in the 1997 Act. By reference to the case of Cane v Dublin Corporation (1927) I.R. 582 he says that it may be legitimate for the Court to construe the various resolutions and orders insofar as they impinge upon the exercise of the statutory power. To give it a temporal limitation he accepts that it may be permissible for the Court to look to matters prior to the 11th April 2001 and to construe the resolutions and orders.

Subject to those concessions the respondents contend that there is no entitlement on the part of the Court to entertain any other complaint.

The Nature of the Enquiry being Undertaken
All of the complaints addressed to this Court by the applicants have to be viewed in the context of the enquiry being undertaken by the sub-committee. It is quite clear that the sub-committee perceived its task as being one requiring it “to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact, as in the opinion of the sub-committee arise directly or indirectly from oral or documentary evidence.” (See the submission made to the Compellability Committee).

68. In 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.


69. It 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 applicants.


Justiciability

70. Does an examination of the applicants’ complaints (other than those the subject of the concession) constitute a breach of the separation of powers?


71. The first place where an examination of this question must begin is the Constitution itself. It is there that the separation of powers has its base.


72. Article 34.3 provides that the High Court shall be “invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.”


73. Notwithstanding 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.


74. Has it done so in relation to the legislature? The answer is clearly in the affirmative in certain respects. For example Article 22.2.5 º 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 courts.


75. This 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.


76. Immunity 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.


77. Thus it can be seen that where the constitution wishes to delimit the powers conferred on this Court pursuant to Article 34 it has done so in a specific and precise fashion.


78. None 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.


79. Article 15.10 reads

Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

80. The 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.


In Wireless Dealers Association v Fair Trade Commission (Unreported Supreme Court 14th March 1956) O’Dalaigh J. referred to the provisions of Article 15.10, Article 26 and Article 34.32 of the Constitution and said
“This survey of the Constitution is adequate to demonstrate that the Constitution makes each of the two Houses of the Oireachtas complete master of its own deliberations and that the High Court, while granted the general jurisdiction to pronounce on the Constitutional validity of laws, i.e. measures which have been passed by both Houses and duly signed and promulgated by the President, exercises no functions with regard to the deliberations of the Oireachtas.”

81. Thus 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 [1983]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. ( See O’Malley v Ceann Comhairle [1997] 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.


82. These decisions all deal with matters internal to the workings of Parliament in carrying out its legislative power or alternatively in dealing with its own members.


83. Is 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?


84. Any examination of the case law on this topic must begin with Re Haughey [1971] 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.


85. The 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.


86. The 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.


87. The 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 Accounts.”


88. The 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 át 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 Article 15.


89. The 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


“Quite clearly the committee is not legally entitled to an answer to any question which is not relevant to the proceedings and which is not within its terms of reference; before anyone can be convicted of a refusal to answer a question, contrary to sub-section 4(b), the court would have had to be satisfied that the question put was relevant and within the terms of the enquiry. The court could not so satisfy itself unless a specific question, or questions, has or have first been put.”

90. The 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.


91. 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).


92. These are precisely the type of issues which the Court is invited to examine in this case. The Judgment of the Supreme Court in Re Haughey 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.


93. It 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 re Haughey.


94. Whatever 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 Committee thereof.


95. At page 264 of his Judgment O’Dalaigh C. J. said “ In 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.”


96. Whilst 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.


97. The 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.


In Goodman International v Hamilton [1992] 2 I.R. 542 the validity of a Parliamentary resolution was sought to be tested before the courts. In his Judgment Finlay C.J. at page 586 afforded a presumption of Constitutional validity to such a resolution. He said “ I am satisfiedthat the presumption of Constitutional validity which has been applied by this Court in a number of cases, to statutes enacted by the Oireachtas and Bills passed by both Houses of the Oireachtas and referred to this Court by the President pursuant to Article 26, applies with equal force to these resolutions of both Houses of the Oireachtas. It seems to me inescapable that having regard to the fact that the presumption of Constitutional validity which attaches to both Statutes and Bills derives, as the authorities clearly establish, from the respect shown by one organ of State to another, and by the necessary comity between the different organs of State, that it must apply in precisely the same way to a resolution of both Houses of the Oireachtas, even though it does not constitute legislation.”

98. In his Judgment at page 610 of the report McCarthy J. said “ The 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 [1965] I.R. 70 at page 122; “The court’s powers in this regard are as ample as the defence of the Constitution requires.””

99. The court mentions that particular quotation so 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.

100. 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 re Haughey.


101. The third case to which the court wishes to refer is that of Haughey v Moriarty [1999] 3 I.R. 1. 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 C.J. in Haughey v Moriarty at pages 33/34. He cites with approval the passage which we have reproduced in full and he goes on to say “The 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.


The powers of both Houses of the Oireachtas in this regard, however, are not absolute.
1
The power cannot be abused, exercised for improper motives or in breach of Constitutional rights including the right to fair procedures. If such circumstances arise the exercise of such power can be restrained by the courts and in this regard, as stated byO’Dalaigh C.J. in the State (Quinn) v Ryan [1965] I.R.70 at p. 122:- “The Court’s powers in this regard are as ample as the defence of the Constitution requires.”

102. If the powers are not absolute who other than this court can be the arbiter of questions touching upon their legality?


103. The 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.


104. Having 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.


105. In his work entitled “ Separation 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.


106. He has this to say at pages 222/223


A foreign reader might assume that the present area would be regulated by some version of Parliamentary privilege. For does the Bill of Rights 1689 not state that “Proceedings in Parliament ought not to be impeached .... in any court.”? However the better view appears to be that the Bill of Rights did not apply to Ireland. Even if it had done, it would be arguable that it never came over into the post 1922 State. In fact, by comparison with British Parliamentary privilege, the Irish version is reduced in scope and scale. The Constitutional provisions (Articles 15.10.12 and 13) which deal with it are mainly concerned with the protection of individual members and in particular - and this is the significant point here - appears in contrast to the Bill of Rights not to provide any protection, against the courts, for a proceeding in Parliament.

However one might ask: If not Parliamentary privilege, then does not the separation of powers bar the courts from intervening in the operation of the Oireachtas? For if one examines the policy underlying the long historic development of Parliamentary privilege - the policy of the freedom of Parliament from intimidation or even influence by: the King; the King’s Courts, the mob, the press, or any other agency which might interfere with the untrammelled discourse of public representatives - one finds a substantial overlap with the separation of institutions aspect of the separation of powers. In addressing this question, the impact of the courts on the Oireachtas the cases appear to have accepted a distinction according to whether or not the legislative power was being exercised and we should examine the subject matter under these two headings.”

107. The learned author then proceeds to consider the case law involving the Oireachtas when not exercising legislative power. The primary case considered is in re Haughey . He also considers an application for judicial review which did not proceed beyond the leave stage and consequently is not reported. Thirdly, he considers Attorney General v Hamilton (no. 2) [1993] 3 I.R. 227 He expresses his conclusions as follows at page 224:

“Thus, the conclusion which one can draw, provisionally, is that where no legislation is involved, the courts have no compunction about exercising jurisdiction to enforce the Constitution or other rules, in regard to affairs of the Dail or Senate. In expressing this conclusion in the language of the separation of powers, one should recall that, theoretically, as was explained above in chapter 3, a separation might exist in respect of the (legislative) organ or of the (legislative) power. It appears that from what has been said already, in Ireland it does not exist to protect the legislative organ, at any rate, when it is not exercising its legislative power.”

108. Thus 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.


109. The 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


a strict application of this principle might be thought to exempt from Judicial scrutiny what might be described as the intra-mural proceedings of both Houses, such as, for example, the question of whether the Chairman of either House had been validly removed from his office.

On the other hand, in re Haughey the Supreme Court was prepared to supervise the procedures adopted by a Dail committee, although an important consideration here must be that the Plaintiff in that case was not a member of the Oireachtas.”

110. Both 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.


111. We turn now to consider whether any assistance may be gleaned from the jurisprudence of other jurisdictions. In Watkins v United States 354 US 178 the petitioner had 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.


112. In 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“ An 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 Congress.”


113. The 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 case.


114. In 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.


115. Frankfurter J. said at page 216 of the report “ By 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.”


116. This case supports the view that the court is justified in entertaining the applicants’ contentions.


117. In a later case of Gojack 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 . He 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“ the 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.”


118. Whilst 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.


119. These 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 suit here.


120. These two cases (along with some others) are considered by Professor Tribe in the Third Edition of his work on American Constitutional Law at pages 793 - 4. He says this

Although only loosely restricting the substantive scope of Congressional investigations, the Supreme Court has required Congress to adopt important procedural safeguards in the conduct of its investigations. Because the Bill of Rights limits the law making process as well as the content of resulting legislation, Congressional investigators must respect the Fifth Amendment privilege against compelled self incrimination, the Fourth Amendment prohibition of unreasonable searches and seizures, and the requirement of due process that, if Government actors promulgate rules limiting their own conduct, they must comply with such rules. Perhaps more significantly, the court has held that due process and the formerly limited character of Congressional investigatory power (1) require Congress, in delegating its investigatory authority to particular committees, to state clearly the scope of a given committee’s authority, and (2) require an investigating committee, if the materiality of its enquiry is challenged by a witness, and if the subject matter of the investigation has not previously “been made to appear with indisputable clarity”, “to state for the record the subject under enquiry ... and the manner in which the propounded questions are pertinent thereto.”

121. This statement by Professor Tribe suggests 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 power.


122. Before expressing final conclusions in respect of this aspect of the matter the court must of course refer to the views of Geoghegan J. in Haughey v Moriarty [1999] 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


I decided to rule out all evidence directed to showing that there was some irregularity in the convening of the Seanad for the purposes of the resolution as it seemed to me that these matters were not justiciable in the courts on the grounds of the Constitutional separation of power. The Dail and the Seanad regulate and enforce their own procedure. Accordingly, this ground of objection to the Tribunal must also fail.”

123. In the next paragraph of the Judgment the Judge said


I now turn to the questions which have caused me very considerable difficulty indeed. They are the issues arising from the terms of reference. There is a presumption of Constitutionality and validity of these Dail and Seanad resolutions and the court would be very slow to hold that having regard to the contents of the terms of reference, a resolution was either ultra vires the Act of 1921 or repugnant to the Constitution. But unfortunately, genuine concerns do arise on these fronts in this case because of the undoubted ambiguities and lack of clarity in the terms of reference. It was clear at the oral hearing that Counsel for the State had himselfconsiderable difficulty in interpreting some of the provisions and in reconciling apparent inconsistencies. But the problem is not just one of ambiguity. There is also the problem that on certain interpretations there may be well founded arguments that the first Plaintiff’s Constitutional rights and indeed those of the other Plaintiffs would be infringed in a manner that could not be justified by the legitimate concerns giving rise to the enquiry.”

124. The Judge then went on to set out the principles which he would apply in interpreting the terms of reference.


125. It 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 Haughey v Moriarty .


126. Finally 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 ) [1993] 3 I.R. 227 That case was concerned with the provisions of Article 15.12 and 15.13 of the Constitution 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.


127. On the question of justiciability therefore the court’s conclusions are as follows:


(1) The claim of non-justiciability is not supported by the express words of the Constitution itself. Notwithstanding the detailed provisions of the Articles of the Constitution dealing with the National Parliament, nowhere is there immunity from review by this Court in the form in which it is propounded by the respondents. That is in stark contrast to other provisions of the Constituion which expressly so provide:
(2) Although the Constitution provides certain protections to, for example, members of Parliament concerning utterances by them such provisions cannot be used to erect the edifice of non justiciability which is contended for here.

(3) The plea of non justiciability is inconsistent with the approach which has been taken by the courts in this jurisdiction in respect of the legislature when not exercising its law making power. In addition the claim is inconsistent with the views of the two principal academic works on the topic:

(5) The claim is inconsistent with the approach taken by the United States Supreme Court in dealing with the rights of persons who are forced to attend Congressional hearings.

128. The court holds that all of the complaints made by the applicants in these proceedings are justiciable and 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.


129. The court will first examine the complaints in respect of which its jurisdiction to do so is conceded.


The Consent of the Compellability Committee

130. It 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.


131. The applicants contend that for a variety of reasons there was no valid consent in existence when the directions were issued to the applicants dated 12th April 2001.


132. The 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 . That 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.


133. The 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.


134. The 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 statutory meaning mandated under Section 3(9)(a) as one which “ shall 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.


135. It seems to the court that there were a number of other infirmities identified by the applicants which afflicted the directions given by the sub-committee.


136. We 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.


137. In 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.


138. There 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.


139. It 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.


Was the Sub-Committee acting Intra Vires in proceeding as it did?

140. We 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.


141. On 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).


142. The 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.


143. The 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.


144. On the 4th April 2001 the sub-committee was given power to send for persons, papers and records.


145. On 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.


146. On 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.


147. There were then the two subsequent amendments of the 12th and 26th April, the wordings of which are already set forth in this Judgment.


148. It 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


I do not think that the resolutions should be interpreted as though they were statutes. A court must make allowances for the political climate and urgency under which resolutions of this kind would come to be drafted.”

149. Even 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) “ Enquire into 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”? We do not think so.


150. In 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 matter.


151. It 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.”


152. The sub-committee cannot go beyond the functions and powers conferred 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.


Fairness of Procedures

153. The major complaint which is made by the applicants under this heading relates to an alleged deferment and limitation on their entitlement to conduct cross examination.


154. Counsel 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 “ Was this death avoidable”? He 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.


155. Had such matters to be determined by a court whether civil or criminal a well tested process and procedure would 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 submissions.


156. It 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 Constitutional justice.


157. The entitlements are set forth succinctly by the Supreme Court in re Haughey . They are:

“(a) that the person should be furnished with a copy of the evidence which reflected on his good name;

(b) that he should be allowed to cross examine by Counsel, his accuser or accusers;

(c) that he should be allowed to give rebutting evidence; and

(d) that he should be permitted to address, again by Counsel the Committee in his own defence.” (See page 263 of the report).

158. Just as in the Haughey case the principal complaint which is raised here is in respect of the right identified at (b).


159. In 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.


160. The procedure that was to be followed was that when a witness was called to give evidence he would 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 followed.


161. It 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 “ may 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.” 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:

“(5) Procedure;
Questioning by sub-committee.
Allow Cross examination by parties but subject to issues and timing determined by sub committee “It is envisaged that this will take place towards end of hearings by particular parties re specific witnesses. Parties will notify sub-committee of desire to cross examine named witnesses as to defined issues. Witnesses to be cross examined by parties will be told and given transcripts and other documents to be referred to.”

162. The effect of this of course was to transform the apparently exceptional provision provided for in paragraph (f) of the procedure into the norm.


163. But 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.

1

164. The 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.


165. Even 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 in re Haughey?


166. The 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 re Haughey . Prior notification of the issues upon which it is proposed to cross examine empties it of much of its value.


167. The decision of the Supreme Court in re Haughey 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 “ The 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 guaranteed under re Haughey 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 [1999] 3 I.R. 107 and Finlay C.J. in Goodman v Hamilton [1992] 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.


168. It is as well to recall precisely what was said by O’Dalaigh C.J. in re Haughey . At pages 263/264 he said:


No court is unaware that the right of an accused person to defend himself adds to the length of the proceedings. But the Constitution guarantees that the State “so far as practicable” (sa mh éid gur feidir é) will by its laws safeguard and vindicate the citizen’s good name. Where, as here, it is considered necessary to grant immunity to witnesses appearing before a tribunal, then a person whose conduct is impugned as part of the subject matter of the enquiry must be afforded reasonable means of defending himself. What are these mea ns? They have been already enumerated as (a) to (d) above. Without the two rights which the committee’s procedures have purported to exclude, no accused - I speak within the context of the terms of the enquiry - could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case ofclocha ceangailte agus madra í scaoilte. Article 40, Section 3 of the Constitution is a guarantee to the citizen of basic fairness of procedure. The Constitution guarantees such fairness, and it is the duty of the court to underline that the words of Article 40, Section 3, are not political shibboleths but provide a positive protection for the citizen and his good name....

The provisions of Article 38, Section 1 of the Constitution apply only to trials of criminal charges in accordance with Article 38; but in 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.”

169. We 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.


170. A point has been taken that this complaint is premature and reliance is placed upon the Judgment of McLoughlin J. in re Haughey 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.


Jurisdiction

171. All 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.


172. It 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 role.


173. The 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.


174. It 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?


175. Although 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.


176. It is also accepted that there is no authority conferred by legislation.


177. The 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.


178. Attention 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.


179. The 1997 Act provides powers to secure discovery of documents and to compel the attendance of witnesses.


180. The 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.


181. The 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.


182. The court proposes to look at that question first from a historical point of view and secondly by reference to recent decisions which were cited.


183. In 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 “ The 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 history.”


184. Many 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 “ High 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.


185. The background to the 1921 Act is summarised by Hamilton C.J. in Haughey v Moriarty (1999) 3 IR 1 at 54 - 55 as follows:

It is clear from the Salmon Report and the helpful study of the work of such Tribunals in England by George W. Keeton, Trial by Tribunal, that prior to the enactment of the Act of 1921, the only machinery available to enquire into major political scandals was an investigation by a select committee of Parliament. The inherent defects in that procedure were recognised as long ago as 1880, when the Special Commission Act, 1880, was passed in order to enable a Commission to inquire into the allegations that Parnell and other leading members of the Irish Parliamentary Party had been involved in criminal activities. They were graphically illustrated in the Marconi affair in 1912 when the Select Committee and the House of Commons itself divided along strict party lines in considering whether prominent members of the then Liberal Government had improperly profited from certain transactions resulting from the award of contracts by the Government to the Marconi Company.

The underlying policy of the Act of 1921, as subsequently amended, is thus not in doubt. It is to provide the machinery, wholly independent of the political process, whereby matters of grave public concern may be investigated and the true facts brought to light.”

186. Professor 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.


187. The Salmon Report in dealing with the Select Parliamentary Committees of Enquiry says this (at paras 35 and 36)


The record of such committees appointed to investigate allegations of public misconduct is, to say the least, unfortunate as we have shown in chapter 2. The Marconi scandal for this purpose sounded the death knell of this form of investigation, and because it was wholly discredited, the Act of 1921 was passed. To go back to it would, in our view, be a retrograde step. We, of course, recognise that there are many purposes for which select Parliamentary committees are most usefuland indeed indispensable - but the investigation of allegations of public misconduct is not one of them. Such matters should entirely removed from political influences. A select Parliamentary committee is constituted of members representing the relative strength of the parties in the House. Accordingly, it may tend in its report to reflect the views of the party having the majority of members or indeed in the Marconi case, it may produce two reports and when these are debated in the House, the House may divide upon Party lines. On the other hand the reports of the tribunals under the Act of 1921, no doubt because of their excellence and the standing and political impartiality of their members, has invariably been accepted by Parliament without question. A further defect of a select Parliamentary committee is that it does not normally hear Counsel and some if not all of its members would have had no experience of taking evidence or cross examining witnesses. Finally, witnesses who give evidence before a select Parliamentary committee may not be entitled to the same absolute privilege as they would enjoy before a tribunal under the Act of 1921.

The procedure in the United States of America for investigating allegations of public misconduct is by Congressional committees of investigation consisting of the representatives of the majority and minority parties. These committees insofar as they are constituted on a political basis are closely akin to our Select Parliamentary Committee. They are permanent Congressional standing committees of investigation for these matters and they seem to be constantly employed. No doubt this system of investigation is effective in the United States of America, but in our view it would not be appropriate in the United Kingdom. Moreover, the evidence shows that although on some occasions the reports of such committees have been generally accepted bythe American public, on others they have been received with a considerable scepticism and have failed to allay public disquiet. Indeed, when any matter of vital importance with a political background arises for investigation, an ad hoc tribunal is not infrequently appointed to avoid the matter being referred to the Congressional committee.... There is no evidence from the United States or elsewhere that does anything but support our conclusion that in the United Kingdom investigations of the kind which we are concerned should be by tribunals free from political influences.”

188. Is 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 no.


189. The 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 “The Constution of the Irish Free State” said this:


“Both Houses of the Oireachtas have full power to regulate their procedure by making and amending their rules and standing orders. In this sense the Irish Parliament, like the English, enjoys the privilege of exclusive cognisance of matters arising within it.” Despite some ambiguous phrases in the Constitution, the Irish Parliament, however retains none of the semi-judicial attributes which are still regarded as vested in the British“High Court of Parliament” by virtue of privilege. It is true that the Constitution authorises both Houses, in making their rules and standing orders to attach penalties for their infringement and to protect their members against interference, molestation or attempted corruption. It is, however, clear from the standing orders that the power to attach penalties must be interpreted as limited to the disciplinary measures of suspension authorised by the latter, and that no power of actual trial or of commitment, such as was still exercised at Westminister in the case of Bradlock, is vested in the Irish Parliament. Nor can the injunction empowering the legislature to protect its members against molestation or corruption be interpreted as investing it with judicial powers over persons not members of the House ..... It is inevitable that there should be a certain tendency to view the Oireachtas in the light of the conceptions inherited from the House of Commons; but it is evident from the context of the Constitution that the Irish Parliament is not the omnipotent assembly for which Dicey could claim that its powers“make a near approach to an authority above that of the ordinary law of the land.” Its scope is so rigidly fixed by the terms of our written Constitution, its functional relationship to the other organs of the State so clearly defined, that it is not permissible to invest it with those attributes of “sovereign authority” which have accrued to the House of Commons during its conflicts with the Crown. It is invested by the Constitution with comprehensive and adequate powers to regulate its business and to maintain its authority. It has none other.”

190. Professor 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 here.


191. The report of the Committee on the Constitution in 1967 in dealing with the scope of Parliamentary privilege under Article 15.10 of the 1937 Constitution said that


The powers of the Houses are not at all as wide as those of some other Parliaments such as the British.” The report went on “Our Parliament can operate only within the confines laid down in the present Constitution, which was intended to provide the Charter for all aspects of public affairs in this country. That Constitution has been very careful to outline detailed provisions about the court system to be established, the procedure for the trial of offences and the fundamental rights of the citizens, including the right to personal liberty and freedom of expression. If it had been the intention from the beginning that the powers enjoyed by the Oireachtas were not to be restricted by any safeguards of this kind, there would surely have been a great deal more comment about the nature and effect of Parliamentary privilege than has heretofore been the case. As already indicated, the wording of Article 15.10 itself suggests that this was not the intention.”

192. There 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


It is unlikely that it was intended that the balanced arrangements which were deliberately established in the Constitution could be disturbed by the eccentric relics of British Constitutional history, whether these are expressed through the common law or statute.”

193. Regardless 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.


194. Whilst a number of cases have been cited they are all neatly summarised by the following passage from Hamilton C.J. in Haughey v Moriarty [1999] 3 I.R.1 at pages 32 - 34.


“Having regard to the sovereign and democratic nature of the State, each of the organs of Government enjoy the powers normally exercised by such organs in a sovereign and democratic State and are not restricted to the powers expressly set forth in the provisions of the Constitution. They are, however, subject to the provisions of the Constitution and in the exercise of such powers, are obliged to have regard to such provisions.

The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic State. These powers and the exercise thereof may of course be limited by the provisions of the Constitution.

In the course of his Judgment in Goodman International v Mr. Justice Hamilton [1992] 2 I.R. 542, Costello J. stated at page 563 that: -
(1) In my judgment, there is nothing in the Constitution which prohibits the two Houses of the Oireachtas from directing that a Tribunal of Inquiry be established to inquire into allegations of matters the subject of current civil proceedings. Such an inquiry does not infringe the principle of the separation of powers. The Minister may validly act on such a direction and the Tribunal may validly inquire into such allegations.”

The views of Costello J. were accepted by Finlay C.J. in the course of his Judgment at page 586 in Goodman International v Mr. Justice Hamilton [1992] 2 I.R. 542 at page 586 where he stated that:-
“I am satisfied that Costello J. was correct in the conclusions he reached and in the reasoning by which he reached them.”
The Court is satisfied that there is no provision in the Constitution which prohibits the two Houses of the Oireachtas from resolving that it is expedient that a tribunal be established for inquiring into a definite matter described in the resolution as of urgent public importance; or which prohibits the Taoiseach or a Minister from appointing a tribunal in pursuance of such resolution.

While there is no provision in the Constitution prohibiting them from so doing the questions still remain as to whether it was inherent in their jurisdiction so to do, in the absence of any enabling statutory provision, as to whether it is essential in aParliamentary democracy that Parliament should have power to initiate inquiries into specific matters which they consider of urgent public importance.

The issue was raised in Goodman International v Mr. Justice Hamilton [1992] 2 I.R. 542.

In the course of his Judgment therein Costello J. stated at page 554:-
“The Government or any Minister can inquire into matters of public interest
as part of the exercise of its executive powers, but if this is done without reference to Parliament then the inquiry will not have statutory powers which are to be found in the Tribunals of Inquiry (Evidence) Act, 1921, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979.”

In this passage Costello J. recognised that the Government or any Minister can inquire into matters of urgent public importance as part of its executive powers but that if this is done without reference to Parliament then the inquiry will not have the statutory powers set forth in the Act of 1921 as amended.

Having cited the provisions of Article 15.10 in the course of his Judgment in Goodman International v Mr. Justice Hamilton [1992] 2 I.R. 542 at page 597 Hederman J. went on to say that:-
“But in any parliamentary democracy, it is essential that the Parliament should have powers to initiate inquiries.”
On this issue he further stated at page 598 that:-
“In the United States of America, the Supreme Court has held that the power of the Congress to conduct investigations “is inherent in the legislative process” Watkins v United States [1957] 354 U.S. at 187” and “In summary, therefore, there is a strong historical basis for saying that a tribunal such as the one in question here, is appropriate, and, indeed thoroughly necessary for the proper functioning of the legislative and executive organs of the State.”

At the conclusion of his judgment in Goodman International v Mr. Justice Hamilton [1992] 2 I.R. 542 McCarthy J. clearly recognised the power of Parliament to pass the resolutions passed in that case where he stated at page 610

“The Parliamentary resolution requires due respect from the Judicial organ of Government.”
He went on, however, to state:-
“....whilst the range of the remit contained in the resolution has been much 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 [1965] I.R. 70 at page 122

“The court’s powers in this regard are as ample as the defence of the Constitution requires.”

The court is satisfied that while the Act of 1921, as amended, does not empower the establishment of a tribunal of inquiry 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 inquire 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.”

195. This 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 “ normally and necessarily” exercised by a legislature in a democratic State.


196. It 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?


197. We think not. The true analysis in fact is carried out by Costello J. in the case of Goodman v Hamilton [1992] 2 I.R. 542 at 554/555. He said:


“1. There is no statutory provision which empowers the establishment of this Tribunal either by the two Houses or the Minister. It is established by an administrative act, that is by the Order of the Minister of the 31st May, 1991. The Government or any Minister can enquire into matters of public interest as part of the exercise of its executive powers, but if this is done without reference to Parliament then the inquiry will not have statutory powers which are to be found in the Tribunals of Inquiry (Evidence) Act, 1921, and the Tribunals of Inquiry(Evidence)(Amendment) Act, 1979.

If the two Houses of the Oireachtas resolve that it is expedient to establish a Tribunal of Enquiry to inquire into a definite matter of urgent public importance which is specified and if a Minister establishes a Tribunal and in the instrument of appointment provides that the two Acts are to apply, then the Tribunal is clothed with the statutory powers contained in the Acts.

2. When the two Houses resolve that it is expedient that a Tribunal of Inquiry be established this is in effect a direction to the Government or the relevant Minister to establish such an inquiry”.

198. This 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.


199. There 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 re Haughey . The 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.


200. A 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.


In Howard v Gossett (1845) Q.B.367 Coleridge J. said:

“That the commons are, in the words of Lord Coke the general inquisitors of the realm I fully admit. It would be difficult to define any limit by which the subject matter of their enquiries can be bound; and it is unnecessary to attempt to do so now; and I would be content to state that they may enquire into everything which it concerns the public weal for them to know, and they themselves, I think, are intrusted with determining what falls within that category. Co extensive with their jurisdictionto enquire, must be their power to cause the attendance of witnesses, and to enforce it by arrest, when disobedience makes that necessary, and when attendance is required and refused.”

201. In the same case Lord Denman C.J. said:


“The privilege of Parliament to prosecute all enquiries which they may deem necessary for the discharge of their high duties, is also admitted without dispute; and the power, consequently, which they have to compel the attendance of all persons whom they may require for such purposes .... As the exercise of their privileges of enquiry may obviously be wholly defeated by notice to the party, it must be necessary to have the power to secure such attendance by coercive measures, and without explanation, and of that necessity the House alone can judge.”

202. This case supports the view that if there is an inherent power in parliament it must be accompanied by an inherent ability to give effect to it. Otherwise it is useless.


203. In the United States of America in the case of McGrain v Daugherty 273 U.S. 135 the 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


“While these cases are not decisive of the question we are considering, they definitely settle two propositions which we recognise as entirely sound and having a bearing on its solution: One, that the two Houses of Congress, in their separate relations possessnot only such powers as are expressly granted to them by the constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective; and the other, that neither House is invested with ‘general’ power to enquire into private affairs and compel disclosures, but only with such limited power of enquiry as is shown to exist when the rule of constitutional interpretation just stated is rightly applied .... We are of opinion that the power of inquiry - with process to enforce it - is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in Americal legislatures before the constitution was framed and ratified. Both Houses of Congress took this view of it early in their history - the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the constitution gives special significance to their action - and both Houses have employed the power accordingly up to the present time ... 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; and where the legislative body does not itself possess the requisite information - which not infrequently is true - recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate - indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislativefunction to the two Houses are intended to include this attribute to the end that the function may be effectively exercised.”

204. These 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.


205. The Court concludes that an inherent power of the type contended for is neither normal or necessarily exercised in other democratic states.


206. The 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.


207. A 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 re Haughey . 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 re Haughey 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.


208. Our 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 from office.


209. Article 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 of Article 12 of the Constitution or by any court, tribunal or body appointed or designated by either of the Houses for the investigation of a charge under Section 10.


210. Article 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 removal.


211. We 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.


212. We 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.


213. Having 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.


214. In the light of the above findings the following Orders result: There will be:


(1) A declaration that the conduct of a public enquiry with the aid of the power of the State and conducted by members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof liable to result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses is ultra vires the powers of such Houses.

(2) A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights purportedly convened by resolution of the said Joint Committee in purporting to report on and investigate the Abbeylara incident has acted ultra vires the powers conferred by the Committees of the Houses of the Oireachtas (Compellability Privileges and Immunities of Witnesses) Act, 1997.

(3) A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights purportedly convened by resolution of the said Joint Committee in purporting to report on and investigate the Abbeylara incident has acted ultra vires the powers conferred by the resolution of Dail and Seanad Eireann of the 25th October 2000.

(4) An Order of Certiorari quashing the resolution of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights of the 10th April 2001 whereby the said Committee purported to extend the terms of reference of the sub-committee purportedly established on the 8th March 2001 by the said Joint Committee and whereby the said sub-committee was purportedly empowered, if it considered it necessary to do so, to hear evidence in accordance with the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 and to report to the Joint Committee thereon and to include its findings and conclusions and recommendations, if any.

(5) A declaration that the submission of the sub-committee on the Abbeylara incident to the Joint Committee on Compellability of Committees of Procedure and Privilege of Dail and Seanad Eireann made about the 11th April 2001 was made in breach of the terms of reference as comprised in the Order establishing the said sub-committee and without jurisdiction.

(6) An Order of Certiorari quashing the directions to the applicants requiring them to attend before the Abbeylara sub-committee, there to give evidence and to produce documents in their possession.

(7) A declaration that the procedures adopted by the Abbeylara sub-committee do not comply with the requirements of natural and constitutional justice.


© 2001 Irish High Court


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