Supreme Court allows appeal, holding that deferring cross-examination violates Article 40.8 fair procedure rights.

THE SUPREME COURT

Keane CJ

Denham J

Murphy J

Murray J

McGuinness J

Hardiman J

Geoghegan J

324, 326, 333, 334/01

BETWEEN:

SEAN ARDAGH, MONICA BARNES, BRENDAN HOWLIN, MICHAEL MOYNIHAN, MARIAN MCGENNIS, ALAN SHATTER, DENIS

O’DONOVAN, THOMAS ENRIGHT, BEVERLEY COOPER-FLYNN, FRANCES FITZGERALD, JOHN MC GUINNESS, JAN O’SULLIVAN,

BILLY TIMMINS, EDDIE WADE, GEORGE V WRIGHT, EDDIE BOHAN , HELEN KEOGH, TONY KETT AND KATHLEEN O’MEARA BEING

THE MEMBERS FOR THE TIME BEING OF THE OIREACHTAS JOINT COMMITTEE ON JUSTICE EQUALITY DEFENCE AND WOMENS’

RIGHTS, IRELAND AND THE ATTORNEY GENERAL

APPELLANTS

AND

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

RESPONDENTS

JUDGMENT delivered the 11th day of April, 2002 by Keane C.J.

Introduction.

This is an appeal from a judgment and order of a divisional court of the High Court (Morris P, Carroll J and Kelly J) which

effectively brought to an end an inquiry being conducted by a sub-committee (hereafter “the Committee”) which had been

purportedly established by a Joint Committee of both Houses of the Oireachtas to inquire into what has become generally known

as “ the Abbeylara incident”. The appellants are the members for the time being of the Oireachtas Joint Committee, Ireland and

the Attorney General. The respondents are all members of An Garda Síochána, some or all of whom received directions from the

Committee to attend before and give evidence to the Committee.

The incident which gave rise to the purported inquiry being held by the Committee occurred on the 19th/20th April 2000 at

Tonymore, Abbeylara, Co. Longford. It culminated in a 27 year old man named John Carthy being shot dead by one or more

members of the Garda Síochána.

The proceedings in the High Court began with an application to Butler J on the 21st May 2001 on behalf of the respondents for

liberty to apply for a number of reliefs by way of judicial review, including:

(a) declarations that the conduct of an inquiry of this nature was ultra vires the powers of the Houses of the Oireachtas,

(b) a declaration that the Committee was acting ultra vires the powers conferred by the relevant resolutions of Dáil and

Seanad Éireann of 25th October 2000 and of the relevant legislation,

(c) orders of certiorari quashing that resolution and other resolutions and orders of the Committee and of a body called

the Compellability Committee,

(d) a declaration that the procedures adopted by the Committee did not comply with the requirements of natural and

constitutional justice and;

(e) a stay on the proceedings of the Committee.

Leave having been granted and statements of opposition having been filed on behalf of the appellants, the substantive

proceedings came on for hearing before the divisional court. In a reserved judgment delivered on the 23rd November 2001, the

divisional court granted all but one of the reliefs being sought by the respondents. Those of the appellants who are members of

the Joint Committee referred to in the title of the proceedings have appealed to this court from the entire of the judgment and

order of the High Court. The appeal brought by the Attorney General and Ireland is confined to that part of the judgment which

granted a declaration that the conduct of a public inquiry such as this by members of the Oireachtas was ultra vires the powers

of the Houses of the Oireachtas.

The History of the Inquiry

The proceedings in both Houses of the Oireachtas and its various committees which culminated in the hearings before the

Committee are set out in considerable detail in the judgment of the divisional court, as is the history of the hearings up to the

time at which the proceedings in the High Court were initiated.

Before I embark on the history of those events, I should refer to the position in law of the committee referred to in the title,

i.e., the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights. It was established pursuant to Order 78

of the Standing Orders of the Dáil which empowers the Dáil to

“appoint a select committee to consider and, if so permitted, to take evidence upon any bill, estimate or matter, and to

report its opinion for the information and assistance of the Dáil.”

Order 78 also provided that

“Such a motion shall specifically state the orders of reference of the committee, define the powers devolved upon it, fix

the number of members to serve on it, state the quorum, and may appoint a date upon which the committee shall

report back to the Dáil.”

A power in identical language, mutatis mutandis, is conferred on the Seanad by Order 64 of its standing orders.

The Dáil, in pursuance of the power conferred on them, adopted Orders of Reference appointing a select committee ultimately

called “the Select Committee on Justice, Equality, Defence and Women’s Rights”. That Committee was to be joined with a select

committee to be appointed by Seanad Éireann to form the Joint Committee on Justice, Equality, Defence and Women’s Rights.

The Orders of Reference of Seanad Éireann similarly ordered that a Select Committee consisting of five members of that house

should be appointed to be joined with the select committee of Dáil Éireann to form the Joint Committee on Justice, Equality,

Defence and Women’s Rights (hereafter “the Joint Committee”.)

Article 15.10 of the Constitution clearly and emphatically recognises the right, and indeed the duty, of each House of the

Oireachtas to make its own Rules and Standing Orders and it has never been in issue at any stage in these proceedings that

the Joint Committee was lawfully established in accordance with those procedures.

In order to place properly in context the subsequent purported establishment of the Committee and the circumstances in which

the present proceedings were initiated and determined in the High Court, I must refer in more detail to the events that occurred

at Abbeylara and their immediate aftermath, without attempting to prejudge in any way issues which may yet have to be

resolved in some forum, either inside or outside the Oireachtas.

The episode started on the evening of the 19th April 2000 when the Gardaí at Granard received a phone message from Mrs.

Rose Carthy, the mother of John Carthy, seeking Garda assistance. It appeared that, earlier that afternoon, the young man had

taken his legally held shotgun from a locker in their home, loaded it and fired two shots from the front door. In response to the

call, Gardaí went to the location.

There followed a period of negotiations between the Gardaí and John Carthy which were clearly designed, on the part of the

former, to bring a potentially dangerous or even lethal situation to an end. For whatever reason, those negotiations unhappily

proved unsuccessful and, late in the afternoon of 20th April, John Carthy left the house. It is not in dispute that, at the stage

he emerged from the house, he was carrying the shotgun and that shots were then fired, resulting in the fatal wounding of John

Carthy.

The Commissioner of the Garda Síochána, Mr. Patrick Byrne, directed Chief Superintendent T. A. Culligan to conduct an internal

Garda investigation into the incident. On 6th June, he furnished the results of his investigations to the Commissioner: these

consisted of a report, 117 pages in length, and included his recommendations. To it were annexed inter alia a post mortem

report by the State Pathologist, Professor Harbison. Chief Superintendent Culligan, in addition to sending this report and the

annexed documents to the State Solicitor for Roscommon for consideration by the Director of Public Prosecutions sent them to

the coroner in whose area the incident had occurred. Chief Superintendent Culligan’s report included a finding that there was no

evidence to support any criminal charge against any of the Gardaí involved. That report was subsequently transmitted to the

Minister for Justice, Equality and Law Reform by the Commissioner in the form of a further report by the latter.

The coroner held an inquest into the death of John Carthy on the 9th, 10th, 11th and 12th October 2000. On the 10th October,

Professor Harbison’s post mortem report was read into the record of the inquest and he was questioned by counsel on behalf of

the next of kin as to what inferences could be scientifically drawn from the results of the autopsy as to the movements of John

Carthy immediately prior to what appeared to have been the fourth and final shot discharged by one of the Gardaí. The inquest

was adjourned by the coroner to await the determination of any legal proceedings that might be instituted.

All of these events were extensively reported and commented on in the media. On the 25th October, 2000, the following motion

(in the name of the Minister for Justice, Equality and Law Reform) was passed by Dáil Éireann:

“That the report to the Minister for Justice, Equality and Law Reform by the Commissioner of the Garda Síochána on the

fatal shooting of John Carthy at Abbeylara, County Longford on 20th April 2000 be referred to the Joint Committee on

Justice, Equality, Defence and Women’s Rights in accordance with paragraph (2) of the Orders of Reference of that

Committee”

On the same day, a motion in the following terms (in the name of Senator Donie Cassidy) was passed by the Seanad:

“That the report to the Minister for Justice, Equality and Law Reform by the Commissioner of the Garda Síochána on the

fatal shooting of John Carthy at Abbeylara, Co. Longford on 20th April 2000 be referred to the Joint Committee on

Justice, Equality, Defence and Women’s Rights in accordance with paragraph 1(a)(v) of the Orders of Reference of that

Committee.”

The Joint Committee considered the report and submitted it to both Houses in the form of an interim report. Submissions and

observations were invited from persons referred to in the report and other interested persons: a total of 21 submissions

(including submissions from the family of John Carthy) was received in response.

On the 8th March 2001 an order was made purporting to establish the Committee. This order (which was apparently made by

the Joint Committee, although that does not appear from the copy furnished to this court) was in the following terms

“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 Síochána 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 Dáil Éireann and one shall be a

member of Seanad Éireann;

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

(d) In relation to the matters 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)(Dáil) and in sub-paragraphs (1)(a)

(i) and (ii) (Seanad) of the Joint Committee’s Orders of Reference and

(e) The sub-commitee shall have the powers of the main committee as contained in Standing Order 78(A)(1), (2) and

(4) to (9) (Dáil) and in Standing Order 62 A(1), (2) and (4) to (9) (Seanad).”

It will be necessary, at the appropriate stage in this judgment, to refer in more detail to the Joint Committee’s Orders of

Reference and to this order purporting to establish the Committee. At this point, it is sufficient to note that the relevant

paragraphs of the Dáil and Seanad Orders of Reference of the Joint Committee referred to “public affairs” administered by the

Department of Justice, Equality and Law Reform and “matters of policy” for which the Minister for Justice, Equality and Law

Reform was “officially responsible”.

The powers of the Joint Committee, which were purportedly devolved to the Committee and which will also be referred to again,

included the power

to take evidence and receive submissions.

The Order establishing the Committee was apparently amended on the 10th April 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

House 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.”

This amendment, and two further amendments apparently passed at meetings of the Joint Committee on the 12th April and 26th

April, were the subject of much controversy which is discussed in the judgment of the divisional court and again will be referred

to at a later point.

On the 4th April, the Seanad made the following order:

“That the Committee on the Abbeylara incident, established by order of the Joint Committee on Justice, Equality,

Defence and Women’s Rights on 8th March 2001, shall have the power to send for persons, papers and records.”

Dáil Éireann on the same day apparently passed a resolution in identical terms, although the written copy of its terms furnished

to this court is not vouched or authenticated in any way.

The significance of the last mentioned order of the Seanad and the resolution of the Dáil is that, if validly made or passed, they

enabled a committee (hereafter “the Compellability Committee”) appointed in accordance with the provisions of the Committees

of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 (hereafter “the 1997 Act”)

inter alia to consent to the giving of directions in writing to persons, whose evidence was required by the Committee, to attend

before them to give evidence and produce any documents. Such directions could only be given with the consent of the

Compellability Committee.

On the 11th April, the Committee applied to the Compellability Committee for their consent to the giving of directions in

accordance with the 1997 Act to a number of witnesses, including the respondents, to attend at and give evidence to the

Committee. Although the Compellability Committee met to consider that application on the 11th April, it was not until the 30th

April that the chairman of the Compellability Committee transmitted to the chairman of the Committee what was described as a

signed copy of the consent granted in relation to the request by the Committee. That document in turn was sent to the

applicant’s solicitors on the 2nd May, i.e., about a week after the commencement of the public sittings of the Committee on the

24th April.

It should also be noted that, at its meeting on 26th April 2001, the Joint Committee purported to amend the order of 10th April

by inserting in it references to sub-paragraphs (2)(a)(vi) (in the case of the Dáil) and sub-paragraph 1(a)(v) in the case of the

Seanad of the Joint Committee’s Orders of Reference. The effect of the purported amendments, if valid, would have been to

extend the remit of the Committee to

“Such other matters as may be jointly referred to [the Joint Committee] from time to time by both Houses of the

Oireachtas.”

Included in the material which had accompanied the application of the Committee to the Compellability Committee for the

consent for the giving of directions was what was described as a “statement of issues” and a list of the witnesses which it was

proposed to call. This was prefaced by the following statement:

“The [Committee] has decided on the following preliminary list of issues arising out of its terms of reference. This list is

intended to give parties and witnesses an indication of the areas to be covered by the inquiry but it is not an exhaustive

list and the committee will expand, contract or alter the issues as it sees fit during the course of the inquiry and where

necessary on notice to appropriate parties. Parties will also have an opportunity to make submissions as to the issues,

witnesses and procedures”.

The statement of issues was divided into a number of sub-headings, i.e.:

(a) The event;

(b) The illness/state of health of Mr. Carthy;

(c) Firearms;

(d) The Gardaí;

(e) Other issues.

Under the first heading the following issues were set out:

"(a) The effectiveness/appropriateness/reasonableness of the Garda operation.

(b) The preparedness of the Gardaí for the situation.

(c) The amount of force used.

(d) The pathologist’s findings, his evidence to the inquest and the implications of such evidence.”

Under the heading of “firearms” and the “Gardaí”, a number of matters were set out, including the legal basis for the holding of

firearms licences and whether there should be a statutory basis for the use of lethal firearms by the Gardaí. Under the heading

of the Gardaí, there was reference to what were described as “training issues” and “control of the Garda ERU” (the latter

acronym standing for the Emergency Response Unit who had been concerned in “the Abbeylara incident”.) Under the heading

“other issues”, there was reference to whether the Gardaí should be under a statutory obligation to report publicly or otherwise

on major incidents and, if so, in what manner, whether the coroner’s inquest procedure was satisfactory and the role of the

coroner and the function of inquests generally.

The Committee also indicated before the public hearings began the manner in which they would be conducted. This again will be

dealt with in greater detail at a later stage: at the moment, it is sufficient to note that the procedures envisaged witnesses

being cross-examined solely by leave of the Committee and that in every case the cross-examination would be deferred until

the end of the inquiry, after all the witnesses had been first examined by the members of the Committee.

At the beginning of the public hearings on the 24th April, the first named appellant, who was the chairman of the Committee, in

an opening statement referred to the terms of reference of the Committee, what he considered to be its powers and the issues

which the Committee would proceed to consider. He then invited applications to be made by those present for representation.

Mr. Michael O’Higgins SC., informed the chairman that he was representing the members of the family of John Carthy together

with Mr. Paul Greene. Mr. John Rogers SC., informed the chairman that he was representing a number of individual members of

the Gardaí, including those named in the title of these proceedings. When the Committee returned after a short recess, the

chairman said that it would be granting representation to a number of interests, including the members of the Garda as listed by

Mr. Rogers.

Mr. Rogers then submitted to the Committee that any findings which they might make to the effect that the conclusions of the

report of Chief Superintendent Culligan were not sustainable or should be inquired into would not be within their powers and that

such an inquiry could only be undertaken pursuant to the Tribunal of Inquiries Act 1921 (hereafter “the 1921 Act”.) He then

went on to cite authorities in support of that submission. He also indicated certain problems which, in his submission, arose from

the manner in which the Committee had been established and referred to comments on the work of the Committee which had

been made on television and radio programmes by three members of the Committee, i.e. the chairman and the fifth and sixth

named respondents (Deputies Marion McGuinness and Alan Shatter).

Having heard further submissions from Mr. O’Higgins, the Committee then went into private session and, when it resumed the

first named appellant said that the Committee was satisfied that it was not only entitled, but obliged, to execute its task in

accordance with its terms of reference and that it rejected the challenge to its jurisdiction and powers made in Mr. Rogers’

submissions. He also said that the Committee rejected the suggestion that any of its members were biased or had reached any

conclusion on any issue that had to be decided.

The Committee visited the scene of the tragedy in Abbeylara the following morning and resumed its public sessions on Thursday,

26th April, when they heard evidence from a number of senior Garda officers, including the Commissioner and Chief

Superintendent Culligan. The questioning of those witnesses continued at the session on the following day, Friday 27th April.

During the course of the afternoon session, Mr. Rogers raised a number of points with the chairman. These included the

question as to when and by whom the order establishing the Committee had been amended and if he and his colleagues could

see the consent, if it existed, of the Compellability Committee in relation to what he described as the extension of the functions

of the Committee as effected by the amendment. Some exchanges ensued between the chairman and Mr. Rogers in which the

former referred to his legal submissions as being based on “spurious... legalities”. The chairman said that he would withdraw the

word “spurious” but that Mr. Roger’s submissions were 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 again objected to the language employed by the chairman and, after a short recess, the chairman said that the

Committee was satisfied that it had the powers to carry out its work, but that it recognised that the parties were entitled to

full information as to the orders that were made conferring those powers. He said that the secretariat of the Committee would

furnish that information by way of letter on the following Monday morning, but that in the meantime the Committee intended to

continue its work. Mr. Rogers strenuously objected to this method of dealing with the matter, but the chairman reiterated that

the Committee would continue its work. Mr. Rogers then said that he was applying for an adjournment of the inquiry, having

regard to the issues he had raised, and also in order to enable him to make an application to the Secretary to the Government

for a ruling by him pursuant to s.7 of the 1997 Act. (If the ruling referred to by Mr. Rogers were obtained from the Secretary, it

might have had the effect that one or more of his clients would not be giving evidence.)

After further exchanges between the chairman, members of the Committee and Mr. Rogers, the Committee went into recess

again and said that they would now adjourn until the following Monday at 2.30 pm.

At the resumed hearing on Monday 30th April, the chairman announced that it was clear that proceeding with the public hearing

pending determination of this application to the Secretary of the Government would not be appropriate and that the further

hearings would be adjourned for 30 days. Mr. Rogers again objected that he had not been given an explanation in relation to the

amendment of the order of establishment and was told by the chairman that the secretariat would furnish him and his

colleagues with that information “fairly shortly”. As already noted, on the same day the chairman sent to the solicitors for the

respondents copies of the documents sought by them together with certain other documents. On the 21st May, the present

proceedings began with the application for leave to apply for relief by way of judicial review to the High Court.

It was said on behalf of the respondents, and not disputed by the Committee, that some of the documentation relating to the

various orders and resolutions establishing the Committee was not received by their solicitors until the proceedings had been at

hearing for three days in the High Court.

The Proceedings in the High Court

The grounds on which the High Court granted leave to the respondents to seek the reliefs by way of judicial review already

referred to can be summarised as follows:-

(1) The various resolutions and orders purporting to establish the Committee and authorise the inquiry into the Abbeylara

incident were ultra vires the Constitution, there being no express or implied power in the Constitution to establish an

inquiry of that nature which was entitled to find facts and reach conclusions which would or might affect the good name

and reputation of citizens, including the respondents;

(2) if the power to establish a Committee for the purpose of conducting such an inquiry existed, the Committee could not

consist of elected officials;

(3) the various orders and resolutions and amendments thereto purporting to establish the Committee did not properly or

adequately define the matters into which the Committee was authorised to inquire and in respect of which it could reach

conclusions and such orders and resolutions and the purported amendment or extension by the Committee of its terms of

reference were ultra vires;

(4) the amendment purportedly made to the order establishing the Committee on April 26th 2000 had been made after the

Compellability Committee had met to consider the application by the Committee for consent to the directions subsequently

issued by the Committee to the respondents to attend and give evidence and, in result, the directions were invalid and of

no effect;

(5) the amendment of the 26th April was in any event not in accordance with the relevant Rules and Standing Orders of

the Oireachtas;

(6) the directions were further invalid and of no effect, no consent in writing by the Compellability Committee being in

existence at the time they were served on the respondents contrary to the provisions of the 1997 Act;

(7) the procedures prescribed for in the public hearings of the Committee or adopted by them were not in accordance

with fair procedures and violated the requirements of natural and constitutional justice.

In the statements of opposition filed in the High Court, it was claimed on behalf of all the appellants that there was vested in

the Oireachtas under the Constitution an inherent power to establish committees empowered to inquire into matters such as the

Abbeylara inquiry, to make findings of fact relating thereto and to arrive at conclusions thereon which would or might affect the

good name and reputation of individual citizens, including the respondents. It was claimed on behalf of the Committee that the

grounds on which leave had been granted, which related to the defects alleged to have existed in the passing of resolutions

and amendments to the various orders establishing the Committee, were not justiciable by the High Court, these being matters

which it was within the exclusive power of the Oireachtas to regulate under the Constitution. It was further contended on their

behalf that, even if these matters were justiciable, and such defects existed (which was denied), they did not in any way

affect the validity of directions given to the respondents to attend and give evidence on the validity of the proceedings of the

Committee generally. It was further denied on their behalf that it was a precondition to the giving of directions by the

Committee to the appellants to attend and give evidence that the Compellability Committee should have consented in writing to

the giving of such directions.

The divisional court found that all of the grounds on which leave had been granted had been made out, with the exception of

(2) and, as already noted, granted the appellants the relief sought in respect of each of the remaining grounds.

In this judgment, I propose to consider separately each of those grounds and the submissions advanced thereon by the

appellants and respondents respectively and to give my conclusions in respect of that particular ground. Although it was not

the order in which it was dealt with in the judgment under appeal, I propose to consider first the finding of the divisional court

in respect of ground (1).

The Inherent Power of the Oireachtas to Establish the Committee

(a) The judgment of the divisional court

At the outset the divisional court pointed out that the challenge was to the conduct of an inquiry which had what the court

described as “adjudicative functions” and which could make findings of fact adverse to the good name and reputation of a

citizen. They were in no doubt that the Committee saw itself as having such a role, i.e. that it possessed “adjudicative

functions” and could make such adverse findings.

The divisional court went on to note that, although Articles 15 to 27 of the Constitution dealt with “considerable particularity”

with the Oireachtas, it was not contended that any express authority was to be found in the Constitution authorising an

investigation of the type embarked upon by the Committee and, in addition, that no such authority had been conferred by

legislation.

The divisional court said that the Committee had contended that their entitlement to conduct such an inquiry was “fundamental

to the separation of powers”. (It may be noted that no such submission was attributed to the Attorney General.) They also

pointed out that Deputy Shatter, who appeared, as a member of the Committee, both in the High Court and in this Court,

rested his case to some extent at least on Articles 5,6 and 45 of the Constitution. The court said that it appeared strange that

a matter as allegedly fundamental as this would not be dealt with in the constitutional articles dealing with the Oireachtas but

rather would be gleaned inherently from others.

The court went on to refer to legislation extending from the Oireachtas Witnesses Oaths Act, 1924 to the 1997 Act: i.e., the

Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act, 1970, the Committees of the Houses of the

Oireachtas (Privilege and Procedure) Act, 1976, and the Select Committee on Legislation and Security of Dáil Éireann (Privilege

and Immunity) Act, 1994. They noted that the 1997 Act provided the power to secure discovery of documents and to compel

the attendance of witnesses, but observed that the interesting feature of all the Acts, with the exception of that passed in

1970, was that none of them conferred an express power on the Houses of the Oireachtas to conduct inquiries of the type at

issue in these proceedings.The 1970 Act did not in fact confer any such power. They noted that the 1970 Act was exceptional

in expressly referring to a subject matter identified in a resolution of the Dáil and pointed out that it had not survived

constitutional scrutiny.

Having said that the argument that the 1997 Act was only explicable on the premise that there was a pre-existing parliamentary

power to conduct inquiries of this type begged the question as to whether there was such an inherent power in the first place,

the court considered that question, first, in its historic context and, secondly, by reference to recent decisions cited to them.

It is unnecessary at this stage to consider in detail the historical survey of parliamentary committees of inquiry conducted by

the court. It is sufficient to say that they referred to the concept in the constitutional law of the United Kingdom of Great

Britain and Ireland (as it then was) of the “High Court of Parliament”, to the conduct of the Marconi Inquiry in 1912 and to the

report of the Royal Commission on Tribunals of Inquiry (1966) in the United Kingdom, under the chairmanship of Salmon LJ, as he

then was, (hereafter “the Salmon Report”). They also referred to the history of the parliamentary investigation to be found in

Trial by Tribunal by George Keeton. They concluded that by 1921 this form of inquiry had become what they described as “a

discredited form of investigation” and that it was unlikely that the drafters of the Constitution of the Irish Free State in 1922

would have thought it wise to revert to or continue such investigations.

he court, having said that the enactment of that Constitution had brought about a fundamental change in the constitutional

order, cited from Leo Kohn’s work, “The Constitution of the Irish Free State”, and said that he had specified the many respects

in which powers of an inherent nature within the Westminster Parliament were not carried over into the 1922 Constitution. The

court added:

“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.”

The court then cited an extract from the report of the committee on the Constitution in 1967 dealing with the scope of

parliamentary privilege under Article 15.10 of the present Constitution, including a statement that:

“The powers of the Houses are not at all as wide of those of some other parliaments such as the British.”

The court added:

“There was no inherent power in the 1922 Constitution to conduct investigation of this type in suit. The 1937

Constitution does not contain an express [provision] authorising it. This similarity of the provisions dealing with the

national parliaments 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 was 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 by statute’.”

The court then proceeded to consider recent authorities in this jurisdiction dealing with tribunals of inquiry established under the

1921 Act and, in particular the decisions of the High Court and this court in Goodman .v. Hamilton [1992] 2 IR 542 and Haughey

.v. Moriarty [1999] 3 IR 1. Having referred to an argument advanced to them that a tribunal of inquiry was the agent of the

legislature, that the agent could only have the powers which the tribunal had and that therefore the legislature could conduct

such an investigation itself, the court expressed its conclusions as follows:

“[The] analysis of the position by Costello J [at first instance in Goodman .v. Hamilton] 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 tribunals 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.”

The court then went on to consider the question as to whether what they described again as “this power of adjudication” can

be considered to be one “normally and necessarily exercised by a legislature in a democratic state”.

The use of the latter phrase is clearly a reference to its use in the judgment of this court in Haughey .v. Moriarty, where the

court said:

“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. Those powers and the exercise thereof may of course be limited by the provisions of the Constitution.”

The divisional court then said that, if such a power exists, in the case of Ireland it has been sought to be exercised on only four

occasions. The first was in 1970 and the second the inquiry in respect of the Deposit Interest Retention Tax, an inquiry in

respect of which they commented that, save for one issue concerning an alleged tax amnesty given to certain banks, there

were no other issues of fact requiring what they continued to describe as “adjudication”. The third and fourth were the present

case respectively and another committee of inquiry which was also, at the time of the hearing in the High Court, the subject

matter of judicial review proceedings. It should be noted that the divisional court, at this point, appeared to have overlooked a

fifth inquiry, namely that conducted in 1994 by the Select Committee on Legislation and Security into the circumstances which

led to the fall of the government of which Mr. Albert Reynolds was Taoiseach and which led to the passing of the Select

Committee on Legislation and Security of Dáil Éireann (Privilege and Immunity) Act, 1994, although the Act itself was referred to

by them at an earlier point.

The court went on to refer to what they clearly considered an important feature of the power of inquiry claimed to exist by the

Committee and the Attorney General. They said:

“A notable feature of the inherent power asserted here is that it is a bare power to inquire. In other legislatures where

such power does exist it is always accompanied by a coexistent inherent power to enable effect to be given to it. That

coexisting power is one which permits of witnesses being compelled to appear under threat of sanction if they fail to do

so.”

They went on to cite authorities in both England and the United States which appeared to them to support that proposition,

including Howard .v. Gossett [1845] QB 367, and McGrain .v. Daugherty 273 US 135.

The court said of these authorities:

“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.

“The court concludes that an inherent power of the type contended for is neither normal or necessarily exercised in

other democratic states.”

While acknowledging that a legislative body could not be expected to perform its functions “wisely or effectively” in the

absence of information respecting the conditions which the legislation is intended to affect or change, it said that it did not

follow that it had or was entitled to exercise “an adjudicative jurisdiction” of the type which, as it put it, was sought to be

exercised in the present case.

The court also referred to an argument advanced to them that the submissions advanced on behalf of the respondents were

not consistent with the decision of this court in In re Haughey and pointed out that the issue they were considering had not

been the subject of any argument in that case. They also referred to specific constitutional provisions giving powers of

adjudication to the Oireachtas, i.e. provisions relating to the impeachment of the President and the removal of judges from

office. They commented:

“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 exclusive 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.”

The court finally summed up their conclusions as follows:

“We have therefore come to the conclusion that the applicant’s argument is correct, namely, that there was no

inherent power in parliament to conduct an inquiry 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.

“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.”

(b) Submissions of the Parties

The submissions by the Attorney General and Mr. Dermot McGuinness, SC, on behalf of the appellants other than the

Committee, as already noted, dealt with one issue only, i.e., that now under consideration.

It was submitted initially that the divisional court erred in failing to consider in any manner the relationship between the

functions of the Houses of the Oireachtas and their powers of inquiry and did not attempt to strike a balance between the

constitutional right to one’s good name, on the one hand, and the constitutional position of the Oireachtas and its members on

the other hand. In particular, the court had failed to take into account that the legislative power conferred by Article 15.2.1 on

the Houses of the Oireachtas involved more than the bare power to pass statutes: it necessarily encompassed a number of

associated and related powers concerning the work that must be undertaken preparatory to the passing of statutes. They went

on to refer to the importance clearly attached by the Constitution to the freedom of debate which was necessarily associated

with the exercise of those functions, exemplified in Articles 15.1.2 and 15.1.3 conferring a number of privileges on individual

members of the Houses.

They further submitted that the Houses of the Oireachtas enjoyed more than a purely legislative role. They had, in addition,

two crucial functions, of which the first was controlling supply and scrutinising national expenditure and taxation and the

second was, in the case of the Dáil, holding the government to account. The breadth of the functions of the Oireachtas, it was

urged, was confirmed by the large and complex committee system operating to further those objects.

It was submitted that an inquiry conducted by parliament by means of a committee was not an end in itself. The views of the

committee had no legal effect and simply reflected the opinions of the committee members on the facts which they had

ascertained: the presentation of their reports to the Houses had no effect in law, but rather represented the carrying out of

the constitutional duties of the Houses to inform themselves as to matters within their constitutional ambit.

It was further submitted that the process of inquiry and report on which such committees were engaged was not, as the

divisional court seemed to have thought, a process of “adjudication”: the distinction between the process of “trial and

adjudication” on the one hand and “inquiry” on the other had been made clear in the decisions of this court in Goodman -v-

Hamilton and Haughey -v- Moriarity.

They accepted that the power to inquire was not unlimited and that the subject matter of an inquiry must be rationally

connected with one or more of the parliamentary functions of the Houses of the Oireachtas. They also accepted that the use

of the inquiry process must not be disproportionate to the constitutional ends which it was intended to serve and that a

balance had to be struck between the competing rights of parliament to inform itself on matters coming within its constitutional

ambit and of the citizen to his/her good name.

They submitted that the arguments on behalf of the respondents proceeded on the mistaken assumption that the vindication of

their constitutionally guaranteed right to their good name precluded the initiation of any inquiry by the Oireachtas which might

impinge on that right. What was not in issue was their right to have such an inquiry conducted in accordance with fair

procedures, as had been made clear by this court in In re Haughey, not a right to prevent the inquiry from being held in the first

place. The right to one’s good name necessarily determined the form of the inquiry that could be undertaken, but did not of

itself determine the issue as to whether the power to hold such an inquiry existed.

They submitted that the decisions of the United States Supreme Court in Kilbourne -v- Thompson [1881] 103 US 168, McGrain -

v- Daugherty, Sinclair -v- United States 279 US 263 and Watkins -v- United States 354 US 178 demonstrated that, in another

democratic jurisdiction with a tripartite separation of powers enshrined in a written constitution, there was a power of inquiry

arising out of the functions of Congress, even though it had not expressly been conferred by the Constitution. They said that

the corresponding power of inquiry in the United States was in fact narrower than the power of the Oireachtas insofar as it was

limited to a power derived from or allied to the legislative functions of Congress only: in this jurisdiction, the power was derived

from a broader set of parliamentary functions, including, but not limited to, the legislative power. Those authorities also

demonstrated that the courts must find the appropriate balance between the power to inquire and the individual rights of those

affected by the inquiries.

They further submitted that an analysis of the judgments of this court in In re Haughey demonstrated that the divisional court

had erred in its interpretation of that case. A detailed consideration of the facts, arguments presented and judgments in that

case pointed to an inevitable conclusion that the court was of the view that it was constitutional for the Oireachtas to

authorise a committee of inquiry to investigate matters affecting the good name of a citizen who was not a member of the

Houses of the Oireachtas.

They further submitted that the decisions of this court in Goodman -v- Hamilton and Haughey -v- Moriarity were clear authority

for the proposition that the Oireachtas has an inherent power to establish inquiries of a fact finding nature. The divisional court,

they said, had been in error in accepting the argument on behalf of the plaintiffs that because the appointment of the tribunal

itself was by an executive or an administrative act, the tribunal was purely executive in nature. The fact that the instrument of

appointment was executive in nature did not alter the character of such a tribunal and its origin, the parliamentary resolution

being an essential part of the process leading to its establishment. They said that the judgment of the divisional court was

flawed in placing emphasis on one passage of the judgment of Costello J in Goodman to the exclusion of other aspects of the

case which, together with the decision in Haughey -v- Moriarity, they said, suggested a contrary interpretation. They also cited

a number of passages from the judgments of Costello J and Finlay C.J. in Goodman in which they referred to the Houses of the

Oireachtas as having, by their resolutions, directed the tribunal to inquire into certain matters. They cited passages from the

judgments of Hederman J and McCarthy J in this court in Goodman which, they said, made it clear that the court did not regard

tribunals of inquiry as being creatures solely of the executive, but rather as bodies whose existence was, in part at least,

authorised, initiated and established by the Oireachtas. They also cited passages from the judgment of the court in Haughey -

v- Moriarity as being to the same effect. In particular, they referred to the power to inquire by means of a tribunal inquiry as

being one “normally and necessarily exercised by the legislature in a democratic state” and said that no distinction in principle

existed between the inherent power to establish such tribunals of inquiry and to authorise a similar inquiry to be carried out by a

committee of either or both Houses of the Oireachtas.

They further submitted that the divisional court had been in error in treating the absence of a power to compel witnesses in the

Constitution as meaning of necessity that there was no power to inquire as such. No doubt an inherent power to inquire could

be strengthened by giving the Oireachtas power to compel the attendance of witnesses - as had been done by the 1997 Act -

but it was not a logical consequence that the power to inquire was of no use, unless accompanied by a power to compel

witnesses to attend.

They further submitted that the divisional court were in error in declining to attribute any significance to the fact that a series

of Acts of the Oireachtas had clearly proceeded on the premise that a power of inquiry existed. They also cited the decision of

the High Court and Supreme Court of Saorstat Éireann in Cane -v- Dublin Corporation [1927] IR 582, discussing the procedure

by way of private bill in the Oireachtas, as demonstrating that the Oireachtas has an inherent power to conduct a fact finding

inquiry.

Mr. Sean Ryan SC., and Mr. Frank Clarke SC., on behalf of the Committee and Deputy Alan Shatter on his own behalf made

submissions to broadly the same effect. In addition, Deputy Shatter submitted that Articles 15.1, 15.2 and 15.10 made it clear

that the powers and public or constitutional duties of the Houses of the Oireachtas encompassed far more that the initiation,

debating and enactment of legislation. He referred to the provisions of the Garda Síochána Act 1924 and the Police Forces

Amalgamation Act 1925 which, he said, made clear the substantial role played by the Minister for Justice in relation to the Garda

Síochána and the role of the Houses of the Oireachtas concerning regulations laid before each house in respect of the matters

referred to in s.14(1) of the 1925 Act. He also submitted that there was nothing strange or unusual in the parliament of a

democratic state conducting through one of its committees the type of inquiry at issue in these proceedings and cited as an

example the inquiry conducted by the justice committee of the New Zealand Parliament into matters relating to the visit of the

President of China to New Zealand in 1999.

On behalf of the respondents, Mr. Donal O’Donnell submitted that the submissions by the Attorney General and on behalf of the

Committee raised issues which should give concern to the court and had properly concerned the divisional court. The courts

were being asked to infer the existence of a power of a far reaching nature enabling bodies with no judicial functions, i.e.,

committees of the Houses of the Oireachtas, to conduct fact finding inquiries which could have the most seriously damaging

effects (as in the present case, if allowed to proceed unhindered) on the good name and reputations of citizens who are not

members of the Oireachtas. He submitted that the manner in which the constitutional structures of the State came into being in

1922 and 1937 lent no support to the proposition that the people, in 1937, were conferring so novel and, in its implications,

dangerous a power on the Houses of the Oireachtas.

Mr. O’Donnell said that the power was novel in that it departed completely from the legislative function, which was to lay down

rules for the future, by enabling the Oireachtas to investigate matters in the past. If it existed, it authorised the Oireachtas to

conduct a fact finding exercise arising out of a particular incident which might result in no legislative action. It was dangerous in

that it assigned to an elected body, which was not a court, the right to determine issues of civil and even criminal culpability

with unarguable consequences for the good name of the citizens affected.

Mr. O’Donnell submitted that the alleged power, being adjudicative in its nature, was inconsistent with the representative

functions of the Oireachtas. To the extent that it could be exercised, as was claimed, by a joint committee composed of

members of the Dáil and Seanad, it did not accord with the provision in Article 28.41 making the Government answerable to Dáil

Éireann alone.

Mr.O’Donnell also argued that the power claimed on behalf of such committees of inquiry to summon before it and examine public

servants was incompatible with the machinery of accountability laid down by the Constitution itself. In the case of the Gardai,

that made the Commissioner answerable to the Minister and the Minister in turn answerable, as a member of the Government, to

Dáil Éireann: the Committee in this case was purporting to hold individual members of the Gardai accountable to the members of

the Oireachtas for the discharge of their official duties, which was clearly in violation of the express provisions of the

Constitution itself.

Mr. O’Donnell submitted that the arguments by the Attorney General and Deputy Shatter and on behalf of the committee

ignored the radical departure from the constitutional institutions of the United Kingdom initiated by the enactment of the

Constitution of the Irish Free State and emphatically continued in 1937. He said that the drafters of the 1922 Constitution had

clearly been unwilling to accept any portion of the British Constitution unless it could be specifically justified in terms of the new

constitutional order. In particular, as was demonstrated by articles by Professor Brian Farrell on the drafting of that Constitution

(1970/1 Ir. Ju. pp. 115, 344, 111 and 345), the framers had expressly rejected a proposal contained in one of the drafts to

establish such committees of inquiry.

Mr. O’Donnell said that the abandonment in 1922 of the British constitutional concept of a “High Court of Parliament” was

entirely inconsistent with the existence of the claimed power of inquiry. The corresponding power enjoyed by the parliament of

the United Kingdom was one, he said, which depended for its efficacy on the exercise of those unusual features of the

parliament of the United Kingdom which had been made clear in the decision in Howard -v- Gossett. Consistently with that

approach, the Privy Council had rejected the suggestion that the House of Assembly of Jamaica enjoyed those powers as being

ones incidental to every legislative assembly (Kielley -v- Carson [1841 - 1842] ER 225,) overruling its earlier decision in

Beaumont -v- Barrett 1 Moo. pc. 59.) Such decisions had made it clear that what had been described as the lex et consuetudo

parliamenti of the United Kingdom could not be claimed by any legislature established in the dominions or colonies of the Crown,

except by express grant: it had not been the subject of such a grant in the abortive Home Rule Bill of 1912 or in the

Government of Ireland Act, 1920. Nor could its existence be inferred from any of the provisions of the 1922 Constitution.

As to the authorities in the United States, Mr. O’Donnell submitted that the congressional power of inquiry had been held to

exist in a context where it had similarly been held that there were inherent powers to commit for contempt and to require the

attendance of witnesses and the production of documents, powers which were conspicuously not given to the Oireachtas by

the Constitution in 1922 or in 1937. Those powers, moreover, had been developed in the context of a highly sophisticated

committee system which had never been paralleled in the Houses of the Oireachtas. He submitted that, in holding that the

power of inquiry inhered in Congress, the United States Supreme Court had clearly been treating Congress as enjoying the same

status as, under United Kingdom constitutional theory, was enjoyed by the High Court of Parliament. Cases such as Anderson -

v- Dunne (6 Wheat 204) demonstrated from an early stage that, while the inherent power to conduct inquiries was recognised

as being vested in Congress, it was also inseparably associated with the power to punish for contempt, making the powers of

Congress in this context closely analogous to those enjoyed by the Westminster Parliament, any doubts on this issue being

conclusively removed by the decision in McGrain -v- Doherty.

Mr. O’Donnell further submitted that the fact that the legislature apparently on occasions enacted legislation on the assumption

that it had an inherent power to conduct inquiries of this nature by committee was not in any way determinative of the issue as

to whether they in truth enjoyed such powers. In any event, the conferring by the Oireachtas upon itself of the power to

administer oaths in 1924 did not lead to the necessary inference that it regarded itself as empowered to conduct inquiries of

the nature under consideration in these proceedings: such a power was obviously considered necessary in connection with a

range of functions that were unarguably within its jurisdiction, including the consideration of private bills and resolutions for the

removal of judges.

As to the unlikelihood of the power contended for having been conferred by implication by the Constitution in 1922, Mr.

O’Donnell cited a passage from Kohn and (coming to the present Constitution) the report of the Committee on the Constitution

in 1967.

Mr. O’Donnell further submitted that an independent adjudicative function, such as was claimed for the Committee in the

present case, was incompatible with the constitutional obligation of membership of the Houses of the Oireachtas. Moreover,

under Article 15.8, the Oireachtas was obliged to hold its sittings in public and hence the Committee had no power to sit in

private or conduct its deliberations in private.

As to the decisions of this court in Goodman -v- Hamilton and Haughey -v- Moriarity, Mr. O’Donnell submitted that the

approach of the Attorney General and the Committee ignored a fundamental distinction between the power of the Houses of the

Oireachtas to express their collective view that an inquiry should be held by means of a resolution (which had never been

disputed) and the right to conduct a process affecting the rights of persons who are not members of either house (which was).

He submitted that the Houses of the Oireachtas had no power to cause or compel the initiation of the inquiry : that was a

prerogative vested solely in the executive. The reference by judges in those cases to parliament “directing” the establishment

of the inquiry was a reference to the political role of the Oireachtas: the establishment of the tribunal was a matter solely for

the executive. He said that the observations of Hederman J in Goodman, making it clear that Article 15.10 did not provide for

the establishment of parliamentary tribunals, was not accompanied by any observation to the effect that such tribunals were

none the less implicitly authorised by the Constitution. Those authorities he said, lent no support to the proposition that the

Oireachtas was viewed as having the power to conduct its own inquiries, although not conferred with such a power by statute.

Conclusions.

I would make two preliminary observations. First, while the question as to whether inquiries of this nature might be more

economically and expeditiously conducted by an Oireachtas committee than by a tribunal of inquiry established under the 1921

Act was referred to during the course of the arguments, how it is answered cannot conclusively determine the issue which has

to be resolved in this case. The Oireachtas was either entitled as a matter of law to initiate the inquiry in controversy in this

case or it was not. If the Oireachtas was not so entitled, the Committee cannot rely on any considerations of that nature as

justifying its existence. If it was so entitled, then it was entirely a matter of policy for the Oireachtas to decide whether to

pursue the inquiry by means of such a committee, by the establishment of a tribunal of inquiry under the 1921 Act or by

whatever other legal machinery was available to then.

Secondly, while we were invited by counsel for the respondents to view with grave concern the serious consequences which,

as he urged, might flow from recognising the existence of the inherent power claimed by the Attorney General and on behalf of

the Committee, it seems to me that the general issue which was debated at such length in the High Court and in this court is,

to some extent, academic. If there is no inherent power in the Oireachtas to initiate such an inquiry, there seems no reason

why the Oireachtas could not simply establish such a committee of inquiry by legislation, provided such legislation allowed for

the conduct of such inquiries in a strictly constitutional manner. The only ground for questioning its constitutionality would be

what was described as “structural bias” on the part of members of the Oireachtas which, it was said, unfitted them for adopting

such a role, but which played no part in the conclusions reached by the divisional court. However, those considerations do not

relieve the court of its responsibility to consider carefully not merely that issue but all the extremely elaborate and lengthy

arguments on this issue in the High Court and again in this court.

I should first set out the terms of the declaration granted in the High Court which, it is agreed, are of critical importance. It was

as follows:

“The conduct of a public inquiry 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 finding

of facts or expressions of opinions adverse to the good name, reputation and/or livelihoods of persons not members of

such houses is ultra vires the powers of such houses.”

[Emphasis added]

In the written submissions of the Attorney General, it was stated:

“It is worth noting that it was no part of the court’s declaration that the compulsory processes of the 1997 Act have

been acquired by a committee before it will fall within the terms of the prohibition. The sole criterion for falling into

invalidity is whether the inquiry is ‘liable adversely to affect the good name of third parties’ ”.

The respondents, in their written submissions, comment that

“While the Attorney General suggests that the declaration of the court did not require that the compulsory processes of

the 1997 Act had been acquired by a committee before it will fall within the terms of the prohibition, this (with respect)

is not correct. The declaratory relief is operative only where an inquiry is conducted with the aid of the power of the

State, there is no such other power operative in these circumstances.....”

I have no doubt that the Attorney General is right and the respondents are wrong. The divisional court made it abundantly clear

in their judgment that there was no inherent power in the Oireachtas to conduct an inquiry of a fact finding nature the

conclusions of which might affect the good name of a person who was not a member of the Oireachtas, with or without the

powers conferred by the 1997 Act. They could not have reached the conclusion that there was no inherent power to conduct

the inquiry in the present case, unless they were satisfied that the Oireachtas did not even enjoy a bare power to inquire

without the powers conferred by the 1997 Act. If they had such a bare power to inquire, any inquiry they conducted in exercise

of it would be entitled to make use of the powers conferred by the 1997 Act which is presumed to be constitutional. The

divisional court, in their judgment, were in no doubt in this matter: they said

“This case [Howard -v- Gossett [1845] QB 367] 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...”

And again

“These [U.S.] cases demonstrate that it is not normal to have a bare power of adjudication in hearing 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. The court concludes that an inherent power of the type contended for is neither

normal or necessarily exercised in other democratic states”.

The proposition that not even the bare power of inquiry devoid of the power to compel the attendance of witnesses is inherent

in parliament was, accordingly, unquestionably part of the reasoning by which the divisional court reached their conclusion that

the present inquiry was unlawful. A fortiori, of course, an inquiry armed, as was that in the present case, with the power to

compel the attendance of witnesses was also unlawful and that is what the court may have intended to convey by the addition

of the words “with the aid of the power of the State”. Alternatively, it might have been intended to suggest that, while other

bodies of persons in the State may conduct such inquiries as they please and publish their reports to the world at large, they

are at least subject to the constraints of the law of defamation, but that no such inhibition attaches to a fact finding inquiry by

the Oireachtas the conclusions of which reflect on the good name of citizens who are not members of the Oireachtas. The

divisional court were clearly of the view that the Oireachtas enjoyed no inherent power to conduct such an inquiry the findings

of which would be protected by parliamentary privilege, with or without the power to compel the attendance of witnesses

conferred by the 1997 Act.

Consideration of this issue must start with a proposition which is so self evident as to be almost banal. The Oireachtas, like any

other body or person in the country, is entitled to keep itself informed and, for that purpose, to initiate inquiries, provided that,

in so doing, it does not infringe the law. That is not in any way in dispute in this case. Nor was it seriously contended on behalf

of the respondents that the Oireachtas was precluded from establishing a fact-finding committee to investigate and reach

conclusions on particular matters which might be relevant to the exercise by them of their legislative function. Thus, it was

conceded that there could be no legal inhibition on their establishing a committee to investigate and report to them on a

particular topic of scientific controversy in order that they might consider the possibility of, and , if thought appropriate, enact,

legislation dealing with the topic. The challenge in these proceedings is to the establishment of a body, such as the Committee,

charged with what the divisional court and the written submissions on behalf of the respondents describe as “adjudicative

functions”, the conclusions of which may affect the good name and reputation of persons, such as the respondents, who are

not members of either House of the Oireachtas.

The description of those functions as an “adjudication” is, in my view, inappropriate and calculated to mislead. The Latin root of

the word and the definition to be found in the Oxford English Dictionary, Volume 1, make it clear that one of its primary

meanings is “a judicial sentence or award”. The report of a body such as the Committee is, however, entirely devoid of any legal

effect.That is not say, of course, that it is devoid of factual effect. If I drive my car carefully down the street but injure a

pedestrian who walks in front of it, my driving will have serious factual consequences. It will remain devoid of legal effect. Its

findings do not determine any legal rights or obligations and represent no more than the opinions its members have formed on

the material placed before them, whether in documentary or oral form. Unlike the orders of courts established under the

Constitution or awards and determinations of the many tribunals which are not courts but exercise quasi-judicial functions, the

findings of a body such as the Committee can be wholly ignored or disregarded by persons referred to in their report without the

slightest possibility of any legal sanction being imposed upon them as a result.

The Committee in this case proposed to consider matters such as the amount of force used by the Gardai concerned in the

operation at Abbeylara, the pathologist’s findings and the implications of those findings and to reach conclusions thereon. In the

result, they clearly considered themselves entitled to reach a conclusion as to whether, in the light of the evidence which they

heard, the Garda who fired the fatal shot in this case used more force than was reasonably necessary, a finding which, in a

court of law, might support a verdict of unlawful killing. But the fact that the Committee could arrive at such a finding does not

mean that they would be “adjudicating” on the issue, as that expression is properly understood, still less that they were arriving

at a finding which was in any way whatever equivalent to the verdict of a court in criminal proceedings or, for that matter, the

judgment of a court in civil proceedings arising out of the same event.

Some of the confusion which has clouded this issue appears to have been the consequence of the following exchange between

Kelly J and Mr. Ryan on the 9th day of the hearing in the High Court:

“Mr. Justice Kelly ..... Do I understand you to say that having regard to the answers that you gave to the President and

if it is boiled down it boils down to this: that this Committee can make a finding and is authorised to make a finding? I

am not saying it would or even that it might, but that it could make a finding of fact which would leave one with no

other conclusion but that this was an unlawful killing at the hands of a particular or particular police officers?

Mr. Ryan: Yes.”

Understandably, that was treated in the judgment of the divisional court as a concession on behalf of the Committee that it

was authorised to make a finding in this case of “an unlawful killing” by one of the respondents. What seems to have been

entirely lost sight of, however, is that a finding of fact - or more accurately, an opinion arrived at by a body such as the

Committee on the oral or documentary evidence placed before it - is no more than that: it cannot as a matter of law be

equated with the verdict of a court of competent criminal jurisdiction or the judgment of a court of competent civil jurisdiction.

Such judgments and orders are, under the Constitution, the exclusive prerogative of the courts established under the

Constitution, save for those limited matters of a non-criminal nature in respect of which what are normally described as quasi-

judicial determinations may be made by bodies other than courts under Article 37 of the Constitution.

Even in relatively modest and innocuous contexts, such as a drama festival or a piano competition, the use of expressions such

as “adjudicator” or “adjudication” is more appropriate than in the case of the report of a body such as the Committee in this

case. Those who participate in such events might well be treated as having accepted, as a matter of contract, that they are

bound by the findings of the adjudicators. Not even that limited degree of legality attaches to any of the findings of a body

such as the Committee.

A more general criticism advanced in the submissions on behalf of the respondents is that the inquiry under scrutiny goes

beyond what the Constitution envisages as the proper role of the legislature, i.e., the laying down of regulations for the future,

rather than the investigation of past events. In a sense, that criticism, even if well-founded, might amount to no more than the

expression of a belief that it is unwise or inappropriate for the Oireachtas to conduct such an inquiry. As such, it would relate to

a policy decision that, in my view, is one which it is exclusively for the Oireachtas to make. But in any event it must be at least

doubtful whether it is well founded. To proceed from findings of fact in a particular case to general propositions which are then

embodied in legislation or other regulatory form is to adhere to an empirical approach which, in the world of practical politics,

may well be preferable to a priori reasoning.

However, while the objection that the Committee was proposing to exercise adjudicative functions which properly belonged to a

court loomed large both in the divisional court and on the hearing of this appeal - an objection which, for the reasons I have

given, I believe to be wholly without foundation - it was undoubtedly the fact that their findings, however described, could

affect the good name and reputation of one or more of the respondents and this was the substantial basis of the challenge to

their constitutional capacity to carry out the inquiry.

That the findings of the Committee could reflect seriously on one or more of the respondents is not in issue. A conclusion that

one of the Gardaí concerned had used more force than was reasonably necessary would not merely be damaging to the

reputation of the person concerned, but could also significantly affect his future career. Similar consequences could, no doubt,

flow from the report of any inquiry conducted by any body or group in the State, whether public or private, and would not of

itself be unlawful, although it might give rise to successful proceedings in defamation at the suit of a person defamed by its

findings. But any report by the Committee in this case to the Houses of the Oireachtas would be protected against such

proceedings by parliamentary privilege and, apart from that consideration, carrying as it would the weight of a finding by a

Committee of the Oireachtas, could not be regarded as being in the same category as reports by other extra-parliamentary

bodies.

It does not follow, however, that the undoubted constitutional right of the respondents to their good name and to have that

right protected and vindicated by the courts precludes ab initio the conduct by the Committee of the inquiry which it proposed

to conduct in this case. The right of persons in the position of the respondents to their good name must be balanced against

the right, and indeed the duty, of the Oireachtas to inquire into and inform themselves as to matters which are relevant to the

discharge by them of their constitutional functions. It is accepted by the Attorney General that not merely must the inquiry

proposed to be conducted by the Oireachtas relate to the discharge by it of its constitutional function: the employment of this

instrument, affecting as it may the constitutional rights of persons outside the Oireachtas, must be proportionate to the

objective to be achieved. What he takes issue with is the range of the declaration granted in the High Court which would

preclude the initiation of any such inquiry, although it was plainly related to the constitutional functions of the Oireachtas and

proportionate to the objectives which it sought to achieve.

Unless there were persuasive or binding authority to the contrary, I would have no doubt that the submission of the Attorney

General to that effect was well founded and that the breadth of the declaration granted in the present case represents a

constitutionally impermissible limitation on the powers of the Oireachtas in this area. Again, unless there were such authority to

the contrary, I would also have no doubt that the inquiry proposed to be conducted in the present case by the Committee was

both relevant to the constitutional functions of the Oireachtas and proportionate to the objectives sought to be achieved.

The Garda Síochána is the body which, under the Constitution and the law, is charged with the onerous responsibility of

maintaining law and order and protecting law abiding citizens. Its organisation, functions and duties are regulated by statute

and the Government is answerable to Dáil Éireann, through the Minister for Justice, Equality and Law Reform, for the manner in

which they discharge their responsibilities. We are fortunate in this country in having a police force, which, for the most part,

does not carry arms and it is a necessary consequence of that proud tradition that on the happily rare occasions when a civilian

is killed as the result of a Garda operation the event becomes one of public concern. Such an incident may also raise questions

as to the law relating to the use of firearms by the Gardaí and as to the training and organisation of the force in potentially

hazardous situations, such as arose in this case. The matters which the Committee, until halted, were proposing to inquire into

were, accordingly, clearly matters in respect of which the Government was answerable to Dáil Éireann. In addition, to the

extent that they might indicate the need of further legislation in this area (or indeed, if it proved to be the case, to the extent

that they indicated that existing legislation and regulations, if properly administered, were adequate) they clearly related to the

legislative functions of both Houses.

It was also urged, on behalf of the respondents, that, to the extent that the arguments on behalf of the appellants relied on

the accountability of the Government to Dáil Éireann, they could not justify the presence on the Committee of a member of the

Seanad. If, however, the inquiry was related to the adequacy or otherwise of existing legislation, as it unquestionably was, that

would be sufficient to justify the presence of members of Seanad Éireann on the Committee. But, in any event, the argument

advanced on behalf of the respondents is based, in my view, on too narrow a construction of the provisions of the Constitution

under which the Government is answerable to Dáil Éireann. The freedom of debate of both Houses of the Oireachtas, protected

under Article 15.10, would be quite unnecessarily circumscribed if the Seanad were in some sense precluded from examining the

manner in which the Government had discharged its responsibilities in particular areas and ministers, of course ,enjoy a right of

audience before the Seanad which enables them, for their part, to render an account of their stewardship in any particular area

to that house.I should add that I do not recall it having been conceded on behalf of the Attorney General that the presence of

a member of the Seanad on the Committee rendered its proceedings invalid, unless the inquiry could be regarded as related to

the legislative function of the Seanad. No such concession appears in the written submissions and I am not aware that it was

made in the course of oral argument. It would be a surprising concession to make, for the reasons suggested in the text, and,

even if made, would not be one that, in a case of public law of this importance, should be the basis of our decision, unless it

was well founded in law.

The question as to whether the invocation by the Oireachtas of such a power of inquiry by means of a Committee was

disproportionate admits, in my view, of only one answer. The killing of a civilian by members of the Gardaí is inevitably in a

society such as ours a matter of immediate and legitimate public concern and an inquiry designed to ascertain the facts which

resulted in the killing and to reach appropriate conclusions as to any legislative, regulatory or administrative measures that

need, in the view of the Committee, to be taken is, in my view, an entirely appropriate and proportionate response.

It should also be pointed out that, while it was argued on behalf of the respondents that individual members of the Gardaí

would, in effect, be required in the hearings before the committee to account for their actions to the Oireachtas, this is to

misunderstand the legal nature of the chain of accountability. In today’s conditions, a minister cannot be expected to be aware

of the manner in which the officers of his department, at every level, perform their duties: the same can be said of the

Commissioner of An Garda Síochána in relation to the discharge by individual officers of their duties. Undoubtedly, however, a

minister, in complying with his constitutional duty to account to parliament, may find it necessary to place before the Houses or

a committee duly appointed by them, the evidence as to how individual officers perform their duty. That is not in any way to

make the individual officers directly responsible to the Houses of the Oireachtas.

It follows that, unless there were binding, or at the least persuasive, authority to the contrary, I would be satisfied that the

duty of the courts to uphold and vindicate the constitutional rights of the respondents to their good name cannot in this case

have the effect of precluding the Oireachtas from discharging duties and responsibilities exclusively assigned to it by the

Constitution. As will be made clear in a subsequent section of this judgment, such an inquiry may only proceed in a manner

which strictly recognises the right of the respondents to have the inquiry conducted in accordance with natural justice and fair

procedures and, subject to that all important proviso, I am satisfied that, unless there is binding or persuasive authority to the

contrary, there was no constitutional inhibition on the establishment of a Committee whose remit was to inquire into such

matters and report thereon to the Houses of the Oireachtas.

It is, of course, the case that the establishment of such a Committee is not expressly authorised by the terms of the

Constitution itself or by statute. Again, in the absence of binding or persuasive authority to the contrary, that would not have

seemed to me to be, of itself, a factor which would lead inevitably to the conclusion that its establishment was, in

constitutional terms, an unwarranted assumption of powers which it did not have by the Oireachtas.

The Constitution is a political charter, using the adjective in its broadest sense. One does not expect to find in it the level of

detail which, in our legislative tradition, we associate with Acts, regulations and by-laws. This is strikingly apparent in the

provisions concerning the national parliament. They constitute a relatively small, carefully landscaped promontory behind which

lies a vast hinterland of unwritten conventions, custom, precedents and modes of behaviour derived from history and

experience.

Political parties, although many people would regard them as an essential feature of a functioning modern democracy, do not

achieve as much as a passing mention in the Constitution. Their organisation, the status accorded to their leaders, and the

machinery associated with them of the whips’ office are not referred to in any way. Moreover, although under Article 15 2.1°,

legislative authority is exclusively conferred on the Oireachtas, the Constitution is virtually silent as to how that uniquely

important power is to be exercised. Under the heading “legislation”, Articles 20 - 25 confine themselves to the question of

“money bills”, the amending power of Seanad Éireann and the promulgation of bills as law by the President. So far as the text of

the Constitution goes, a “bill” could simply take the form of a resolution passed by the relevant House. The traditional machinery

of first and second reading, committee stage, report stage and final reading again does not achieve even a mention and was

clearly intended to be dealt with solely by means of standing orders.

In that context, the absence of any reference to committees of inquiry from the text of the Constitution - or of the

Constitution of the Irish Free State in 1922 - is, in my view, of little significance. Such committees were, as we shall see, an

established feature of a parliamentary tradition which, in so many of its aspects, we inherited from the United Kingdom, were

sanctioned and regulated by the Standing Orders of the Oireachtas under the 1922 Constitution and have been similarly

sanctioned and regulated by the Standing Orders of the present Houses of the Oireachtas since the enactment of the

Constitution in 1937 and committees, such as the Public Accounts Committee, have been a feature of parliamentary life in this

jurisdiction since the foundation of the State.

Again in the absence of authority, I would have little difficulty in reaching the conclusion that the power to establish such

committees and, where appropriate, to authorise inquiries by them into matters relating to the constitutional functions of either

or both Houses of the Oireachtas, even where their findings might reflect on the good name or reputation of citizens, was a

necessary and normal power of a parliament established under a constitutional order such as ours. In considering whether the

authorities in this or other jurisdictions support, or are at variance with, that view, it is helpful to examine their history, not

merely in Ireland, but in the two jurisdictions whose parliaments and courts have had a powerful influence on the development

of similar constitutional structures in other countries in the common law world, i.e., the United Kingdom and the United States of

America.

Chapters 2 and 3 of Keeton on Trial by Tribunal set out in detail the history of what came to be called in the United Kingdom

“select committees”. It would appear that they were first used in 1667 when the House of Commons, following the fall of

Clarendon, appointed a committee of inquiry to investigate how the king and his ministers had spent taxes voted by parliament.

That, however, the learned author suggests, could be more properly classified as a measure affecting parliamentary control of

expenditure than as an inquisitorial committee to investigate misconduct committed by persons occupying public office. A

committee of inquiry in that sense was established in 1678 to inquire into what were described as ‘the miscarriages of the navy’,

the principal object of which was, apparently, to destroy the secretary to the navy, Samuel Pepys. Professor Keeton comments

“The committee of inquiry, 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...”

It is unnecessary to trace in detail the various committees which in the following centuries were also established to inquire into

various matters in the political sphere: one of the most notable was the committee of inquiry into the conduct of Sir Robert

Walpole as Prime Minister, again prompted, not merely by political considerations, but motives of the most virulent kind.

The fact that select committees of this nature were seen as simply instruments of political warfare was the background to the

passing of the Special Commission Act 1888, which provided for the setting up of a judicial commission to investigate the

charges made against Charles Stewart Parnell, and other leading members of the Irish Parliamentary party, of being involved in

agrarian and other crime. Parnell himself urged that the charges against him should be investigated by a select committee and

the establishment of a judicial tribunal of this nature provoked serious misgivings among many prominent politicians, such as

John Morley and Lord Randolph Churchill, who regarded it as not merely without precedent but as a wholly undesirable departure

from traditional practice in permitting the establishment of judicial tribunals at the behest of a government commanding a

majority in parliament to examine the supposed wrongdoing of politicians, including their opponents.

It was, however, the Marconi scandal in the early years of the last century, which finally led parliament in the United Kingdom

to conclude that alleged political wrongdoing was more properly the subject of inquiry by an independent tribunal than by a

select committee. That inquiry was the sequel to allegations that a number of prominent politicians, including David Lloyd

George, had profited from the purchase of shares in the company which had been awarded the contract for the erection of a

chain of State owned wireless telegraph stations throughout the then British Empire. The ministers involved were all members of

the liberal administration and the committee produced both a majority report (reflecting the views of the liberal members) and a

minority report (reflecting those of the conservative members.) The latter report alone found that there had been ‘grave

impropriety’ on the part of the ministers.

This division of opinion along strictly party lines proved a death blow to the use of such select committees for investigating

political wrongdoing and the result was the 1921 Act providing for the establishment of tribunals of inquiry which, in both the

United Kingdom and in this jurisdiction, were usually, although not invariably, composed of one or more judges.

Allegations of misconduct in the public service, whether by ministers, members of the legislature or other elected persons have,

accordingly, almost invariably been investigated by tribunals of inquiry rather than by select committees, at least in cases

where the allegations were regarded as sufficiently serious to warrant an inquiry by either of those means. The Salmon Report,

which examined the working of the 1921 Act in England, recommended that the procedure by way of tribunal should be retained

and also made recommendations as to how they should be conducted. Nor, it should be emphasised, was their use in either

jurisdiction confined to the investigation of essentially political misconduct or wrongdoing, as witness the tribunals established

to inquire into the Whiddy oil tanker and Artane fire disasters in 1979 and 1981 respectively.

A conclusion, however, that inquiries by parliamentary committees into matters of public concern had been completely discarded

as a method of investigation in favour of tribunals of inquiry in the period after the 1921 Act could only be based on a serious

misreading of the history of such inquiries since then. The first relevant enactment in Ireland was the Oireachtas Witnesses

Oaths Act 1924, s.1 of which provided

"(1) Each of the Houses of the Oireachtas may administer an oath to a witness examined before such house.

(2) Any committee of either House of the Oireachtas, and any joint committee of both Houses of the Oireachtas, may

administer an oath to a witness examined before such committee.”

Whatever else may have been intended by this provision, it must have been envisaged that the committees referred to were

regarded as having the power to conduct an inquiry of some description: otherwise, the power to administer oaths to witnesses

examined before such committees would be meaningless. It is indeed accepted on behalf of the respondents that the power is

only consistent with the existence of a power to conduct some form of inquiry. Thus, it was availed of in the conduct of the

inquiry which formed a necessary part of the procedure where a private bill was being initiated in the Oireachtas. It would seem

to follow inevitably that the Oireachtas envisaged that there would be a report by the committee in question and, at the very

least, that report might have to reach conclusions as to the credibility of the witnesses who were being examined. Were it

otherwise, it would be difficult to see the purpose of conferring the power to examine witnesses on oath. If the respondents’

submissions are well founded, it would seem to follow that such committees were precluded, in their reports, from making any

finding that a person had lied when giving evidence before them, since such a finding would inevitably reflect on the good name

of the witness concerned. I find it difficult to attribute any such curious intention to the Oireachtas.

Even more strikingly, the Oireachtas in 1970 enacted the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure)

Act 1970. The full history of that legislation will be referred to later: it is sufficient, at this point, to note that the Act was

enacted following the passing of a resolution by the Dáil requiring the committee of public accounts to examine the expenditures

of what was described as “the grant-in-aid for Northern Ireland relief”. The Act empowered the committee, for the purposes of

that inquiry, to summon and examine witnesses, but did not purport to authorise the holding of the inquiry itself: the legislation

was clearly enacted by the Oireachtas on the assumption that such an inherent power existed. Although so much of the Act as

provided a machinery for punishing persons who failed to attend at, or comply with orders of, the committee was found by this

court to be unconstitutional in In Re Haughey, there is conspicuously absent from the judgments in the High Court and in this

court in that case any indication, of even the most oblique nature, that the power invoked by the Oireachtas to order such an

inquiry was at the least questionable, or whether indeed it existed at all.

The next significant legislative step was the enactment of the Select Committee on Legislation and Security of Dáil Éireann

(Privilege and Immunity) Act 1994. The Schedule to that Act sets out an order of the Dáil made on the 6th November 1994

which, inter alia, referred specified matters of political controversy to the Select Committee on Legislation and Security “for the

purpose of questioning all persons the committee deems appropriate”. The committee was required to report to the Dáil by a

specified date and, whether because it found itself incapable of arriving at a consensus on any of the matters in controversy or

because it did not consider that its remit extended to making any findings, it contented itself with simply furnishing the

transcript of the evidence which it had heard to the Dáil.

There then followed the 1997 Act, which, unlike its predecessors in 1970 and 1994, was of general application. It will be

necessary to refer to its provisions in more detail at a later point in this judgment: at this juncture it is sufficient to note that,

again, the Act conspicuously refrains from purporting to confer any power to inquire on any committee of the Oireachtas, but

contains extensive and important provisions enabling such committees to obtain evidence and also provisions intended to ensure

that the powers under the Act are not used in a manner which would fail to protect the personal and other rights of persons

appearing before any committee.

The last use of a committee of inquiry to which reference should be made is that of a sub-committee of the Committee of Public

Accounts which conducted an inquiry into the administration of deposit interest retention tax (“DIRT”). That inquiry was the

sequel to the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act 1998,

which empowered the comptroller to carry out certain inquiries into tax matters, if so requested by Dáil Éireann. That Act also

confers certain privileges on members of the Public Accounts Committee (which are general in nature) and on the comptroller or

his officers. In the latter case, they are confined under s.1 to proceedings of the Committee

“while engaged in the performance of the duties assigned to it by resolution of Dáil Éireann passed pursuant to s.(2)(1)

and any sub-committee of that committee while so engaged .....”

S.2(1), as already noted, empowers the comptroller to carry out the investigation ‘if so requested by Dáil Éireann’. Again, the

legislation expressly refrains from conferring any power on the Oireachtas or any of its committees of public accounts to

conduct any inquiry, but proceeds on the assumption that they had an inherent power to carry out such an inquiry.

There must next be considered the decisions of this court in Goodman -v- Hamilton and Haughey -v- Moriarty. These cases

arose respectively out of the inquiry conducted by Hamilton P. (as he then was) into certain practices in the beef industry and

that at present being conducted by Moriarty J. into certain payments to politicians (Mr. Charles Haughey and Mr. Michael

Lowry). The judgments in both cases considered in detail the legal nature of inquiries held under the 1921 Act and, in the latter

case, the constitutionality of the relevant provisions of the 1921 Act and subsequent amending legislation enabling such an

inquiry to take place was upheld. It is clear from both decisions, that, while there was no statutory provision empowering the

establishment of a tribunal by the Oireachtas, the Oireachtas had a power inherent in the legislative process to initiate inquiries

into specific matters which they considered to be of urgent public importance. As already noted, it was submitted by the

Attorney General and on behalf of the Commitee that it would be wholly illogical and anomalous if the Oireachtas enjoyed an

inherent power to initiate such inquiries by tribunals outside the Oireachtas but possessed no inherent power to conduct such

an inquiry itself by means of a committee.

The judgments in both cases also contain observations on the issue which has occupied much time in this case, as to whether

the committee in making findings of fact of a particular nature would be, in effect, engaging in the administration of justice by

exercising a judicial or quasi-judicial power which, under the Constitution, it could not enjoy. Those observations will be

considered first.

In Goodman -v- Hamilton, it was argued on behalf of the applicants, whose activities were being inquired into by the tribunal,

that the tribunal could not validly not hold an inquiry into allegations of criminal conduct and could not be legally directed,

ordered or authorised so to do by the two Houses of the Oireachtas or the relevant minister (the Minister for Agriculture and

Food). In considering this submission, Costello J, as he then was, said

“The terms of reference in this case require the tribunal to inquire into the truth or falsity of a number of allegations of

wrongdoing including assertions that the criminal law has been breached. But in inquiring into these allegations and in

reporting its opinion on them the tribunal is not imposing any liabilities or affecting any rights. It is not deciding any

controversy as to the existence of any legal right. It is not making any determination of any rights or liabilities. It is not

imposing any penalties. It may come to the conclusion that some or all of the allegations of wrongdoing are true, but

this opinion is devoid of legal consequences. Its functions of inquiring, reporting and recommending cannot therefore

be regarded as the ‘administration of justice’”.

[Emphasis added]

That opinion of Costello J was unanimously upheld in the judgments in this court of Finlay CJ and Hederman and McCarthy JJ,

with whom O’Flaherty and Egan JJ agreed.

To the same effect is a passage from the judgment of Hamilton CJ, giving the judgment of this court in Haughey -v- Moriarty, in

which, having referred to passages from the judgments of Finaly CJ and McCarthy J in Goodman -v- Hamilton, he went on

“The court is satisfied that though the aforesaid statements were made in the context of the resolutions passed which

led to the inquiry referred to in Goodman International -v- Mr. Justice Hamilton, they are correct and apply to all such

inquiries and that the conduct of such an inquiry does not amount to the administration of justice. The critical factor is

trial and adjudication, not inquiry.”

Those passages make it clear that the arguments to which I referred at an earlier point based on what were described as the

“adjudicative” functions of the Committee in the present case are wholly unsustainable.

In considering the major issue dealt with in those authorities, the existence or otherwise of an inherent power in the Oireachtas

to initiate inquiries whether by tribunals or Oireachtas Committees, the precise terms of s.1(1) of the 1921 Act must be borne in

mind. It provides:

“Where it has been resolved (whether before or after the commencement of this Act) by both Houses of Parliament that

it is expedient that a tribunal be established for inquiring into a definite matter described in the resolution as of urgent

public importance, and in pursuance of the resolution a tribunal is appointed for the purpose either by His Majesty or his

Secretary of State, the instrument by which the tribunal is appointed or any instrument supplemental thereto may

provide that this Act shall apply, and in such case the tribunal shall have all such powers, rights and privileges as are

vested in the High Court, or in Scotland the Court of Session, or a judge of either such court, on the occasion of an

action in respect of the following matters:-

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

(b) the compelling the production of documents;

(c) subject to Rules of Court, the issuing of a commission or request to examine witnesses abroad;

and a summons signed by one or more of the members of the tribunal may be substituted for and shall be equivalent to

any formal process capable of being issued in any action for enforcing the attendance of witnesses and compelling the

production of documents.”

The passing of a resolution by both Houses of the Oireachtas is, accordingly, an essential precondition to the appointment of a

tribunal by the executive armed with the powers of enforcing the attendance of witnesses and compelling the production of

documents.

In Goodman, the argument was advanced on behalf of the applicants that the terms of reference of the Beef Tribunal as set

out in the resolutions of both Houses of the Oireachtas unconstitutionally invaded the judicial domain reserved to the courts by

the Constitution.

In the High Court, Costello J explained the effect of s.1(1) of the 1921 Act as follows:

"1. If the two Houses of the Oireachtas resolve that it is expedient to establish a tribunal of inquiry into a definite matter

of urgent public importance which is specified and if a minister establishes a tribunal and 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. The terms of reference of the tribunal are to be

found in the resolutions of the two houses and in the instrument of appointment. Its functions are to carry out an

inquiry in accordance with those terms, to report its conclusions and, if thought fit, to make recommendations. It is

established in the public interest as an instrument for the assistance of parliament in the discharge of its public duties.”

[Emphasis added]

Later in the judgment, Costello J said:

"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.

2. 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 matters which are the subject of disputes between private

persons once the two Houses have properly concluded that they are matters which in their opinion are of public

importance and that it is expedient that a tribunal be established to inquire into them. Such an inquiry does not infringe

the principle of the separation of powers or restrict the right of access to the courts.

In the course of submissions on this part of the case I was referred to two American cases. The United States Supreme

Court held in Kilbourn -v- Thompson that neither the House of Representatives nor the Senate possesses power to make

inquiries into the private affairs of citizens. In Watkins -v- United States the Chief Justice (at p. 187) pointed out that

there is no general authority to expose the private affairs of individuals without justification, that no inquiry can be an

end in itself, that it must be related to and in furtherance of a legitimate task of the Congress.

3. In this case the two Houses concluded that the public interest requires that certain matters which were in dispute

between private parties be inquired into. No suggestion has been made that this opinion is wrong. If the public interest

requires that certain matters be investigated the fact that these may be the subject of a private dispute cannot be a

ground for invalidating the inquiry...

4. For the reasons already given there is nothing, in my judgment, which prohibits the two Houses of the Oireachtas

from directing that a tribunal of inquiry be established into allegations of criminal conduct. Neither the principle of the

separation of powers, the right to fair procedures nor the right to the protection of the citizen’s good name is thereby

infringed. The minister can validly act on such a direction and the tribunal can validly inquire into such matters.”

[Emphasis added]

It should also be noted that, at an earlier part of his judgment, Costello J had this to say of the decision in In re Haughey:

“I appreciate that the points raised in these proceedings were not raised in the Haughey case. But if they were valid I

think it is unlikely that they would have been overlooked by the court, particularly as the court had earlier examined the

limitations of the Committee’s powers in criminal matters. This case supports the view that Dáil Éireann could

request one of its standing committees to inquire into allegations which involved criminal conduct. If it could

validly do so, then it would follow that it could with equal validity establish a tribunal of inquiry to do so.”

[Emphasis added]

Far from the judgment of Costello J supporting the proposition that there was no inherent power in parliament to initiate by

means of the passing of the necessary resolution an inquiry into matters of public importance by a tribunal armed with the

appropriate powers and established by the executive for that purpose, as the divisional court appeared to have thought, the

passages I have cited are wholly irreconcilable with any such view of the law.

That may be because the court seem to have overlooked completely, (in their lengthy judgment they are not even referred to),

the second and third passages to which I have referred. They make it clear that, in the view of Costello J, not merely was there

an inherent power in the Oireachtas to initiate such inquiries by means of a tribunal under the 1921 Act: they also enjoyed an

inherent power to initiate such inquiries by a committee of the Oireachtas.

The arguments on behalf of the respondents proceeded on the basis, as I understood them, that the resolution passed by the

Oireachtas authorising the establishment by the relevant minister of a tribunal of inquiry invested with the powers conferred by

the 1921 Act was one of what was described as a “political” character, doing no more than expressing the view of the

Oireachtas that it was expedient that such a tribunal should be established. Those arguments even took refuge in the

somewhat breathtaking proposition that such resolutions could be equated to resolutions by the Houses expressing sympathy

with the victims of disasters in other countries. Such resolutions are, of course, as devoid of any legal effect as similar

resolutions passed by county councils or, for that matter, fifth form debating societies.

The resolutions passed by both Houses directing the establishment of a tribunal of inquiry (and I advisedly use the precise

language of Costello J), far from being devoid of legal effect, are the essential first step in establishing an inquiry under the

1921 Act, the second step being the execution by the minister of the necessary instrument of appointment. It is irrelevant in

this context to consider what might or might not happen in the unlikely event of a minister defying such a resolution and

refusing to establish the inquiry: his or her fate would be decided in the political rather than the legal world. It is sufficient to

say that throughout his judgment Costello J plainly and unambiguously treated the Houses of the Oireachtas as taking the first

and essential step by the passing of the resolutions without which the minister could never appoint a tribunal invested with the

statutory powers under the 1921 Act.

That view of the effect of the decision in Goodman -v- Hamilton is put beyond any doubt by the judgments in this court. Finlay

CJ, in addition to upholding the view of Costello J as did the other members of the court that such an inquiry was in no sense a

“trial” but was rather a “simple fact finding operation reporting to the legislature”, also referred to the resolution as one which

“directed the tribunal” to inquire into the specified matters.

Even more emphatically, if that were possible, the same view was expressed by Hederman J who said:

“While Article 15.10 of the Constitution provides that each House of the Oireachtas shall make its own rules and standing

orders, with power to attach penalties for their infringement, and provides that each house 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, it does not provide for the establishment of parliamentary tribunals. But in any parliamentary

democracy it is essential that the parliament should have powers to initiate inquiries....”

[Emphasis added].

Hederman J also cited Watkins -v- United States as authority for the proposition that

“The [US] Supreme Court has held that the power to conduct investigations ‘is inherent in the legislative process’”.

In Haughey -v- Moriarty, there was, as there was not in Goodman, a direct challenge to the constitutionality of the 1921 Act.

That challenge failed and, in the judgment of the court on the constitutional issue, Hamilton CJ, having referred to passages

from the judgments of Costello J, Hederman J and McCarthy J, went on

“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.”

[Emphasis added]

At the outset, Hamilton CJ in his judgment had said that

“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.”

It is clear that, from the judgment of the court in that case, that the inherent jurisdiction of the Houses of the Oireachtas to

authorise the establishment of an inquiry by a tribunal of inquiry was part of a power to initiate such inquiries which is normally

exercised by the legislative organ in a democratic State.

In the judgment of the court dealing with the non-constitutional issues in this case, Hamilton CJ, having referred to the history

of parliamentary committees and the genesis in England of the tribunal procedure, said

“There are various models which may be availed of by the Oireachtas and the executive in the form of commissions or

committees, in the latter case, either within the Oireachtas or external to it, for the purpose of advising them as to

the desirability of legislation on particular topics. The essential purpose, however, for which a tribunal is established

under the Act of 1921 is to ascertain the facts as to matters of urgent public importance which it is to inquire into and

report those findings to parliament or the relevant minister.” [Emphasis added]

The court, accordingly, in that case was clearly of the view that the inherent power of parliament to initiate inquiries could be

exercised either by the establishment of a tribunal or by a committee “within the Oireachtas”,

The judgment also contains the following passage:

“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. Such an inquiry, generally but not necessarily conducted by one or more judges, typically takes

the form of an investigation such as the present into circumstances which have raised the possibility of corruption or

other impropriety in public life.”

That passage is relied on by the respondents as suggesting that the view of the court in Haughey -v- Moriarty was that the

only method available to the Oireachtas of investigating matters of public concern was one independent of the political

process, i.e., a tribunal under the 1921 Act. The passage in question, in my view, lends no support whatever to that view of

the law. On the contrary, it does no more than summarise the legal consequences of the historical process by which tribunals of

inquiry, rather than select committees, came to be seen as the most appropriate means of investigating cases of alleged

misconduct by legislators, ministers or other elected persons.

I should also refer to the provisions of Article 28.4.3° of the Constitution which provides that

“The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only

where the High Court determines that disclosure should be made in respect of a particular matter -

(i) in the interests of the administration of justice by a court or

(ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the

government or a minister of the government on the authority of the Houses of the Oireachtas to inquire into a

matter stated by them to be of public importance”.

[Emphasis added]

The following propositions are, accordingly, beyond dispute. A tribunal invested with powers to compel the attendance of

witnesses and the production of documents cannot be appointed by the Government or a minister of the Government unless its

appointment has been authorised, directed or initiated by the Houses of the Oireachtas. The power to authorise, direct or

initiate the appointment of such a tribunal is not conferred expressly by the Constitution or by any statute. It is a power

inherent in the Houses of the Oireachtas as being one which is normal and necessary in a democratic society. The authority of

the judgments of the High Court and this court in Goodman -v- Hamilton and Haughey -v- Moriarty which established those

propositions has not been challenged in any way in these proceedings.

Since the divisional court misunderstood the effect of these decisions, they did not consider it necessary to address the only

distinction sought to be drawn between the undoubted power of the Oireachtas to authorise, initiate or direct inquiries by

tribunals and the power at issue in these proceedings to authorise, direct or initiate such inquiries by a committee of the

Oireachtas. The distinction drawn is that members of the Oireachtas, being directly or indirectly elected legislators, are unfitted

to carry out such inquiries. I will consider that suggested distinction at a later stage.

Two other Irish authorities remain to be considered. The first is Cane -v- Dublin Corporation (1927) IR 582. In that case, a

divisional court of the High Court rejected a submission that a joint committee of both houses appointed under the Standing

Orders of the Dáil and Seanad relative to private business was not lawfully constituted and had no jurisdiction to consider

certain private bills. Although the decision of the High Court was the subject of an appeal to the Supreme Court, there is no

reference to that issue in the Supreme Court judgment. The hearing by such a joint committee of evidence in order to

determine whether the averments in the preamble to a private bill had been established is clearly different in its nature from the

inquiry under consideration in these proceedings.

But it was clearly entitled to make findings of fact, including, it may be, findings which could reflect adversely on the good name

of a citizen, as where, for example, the conclusion was reached that a witness had lied under oath. It is also, of course, an

interesting illustration of the readiness with which the newly established Oireachtas adopted in their entirety procedures of the

Westminster Parliament which were not in any way expressly authorised by the 1922 Constitution.

The decision in In Re Haughey, to which I have already referred, is even more significant. However, so far as the issue now

under consideration is concerned, the divisional court considered that it was of no assistance, observing that

“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 particular inquiry in that case was being carried out with specific statutory powers pertinent to that inquiry. 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 inquiry of the type

involved in this case.”

I am satisfied that the decision in Re Haughey merits closer scrutiny than it received from the divisional court.

The facts, while well known, must be restated, however briefly. Dáil Éireann passed a resolution on the 1st December 1970 that

the Committee of Public Accounts should examine specially the expenditure of certain monies. These consisted of a grant in aid

for Northern Ireland relief and monies transferred by the Irish Red Cross Society to a bank account into which the monies thus

voted were or might have been lodged.

The Committee presented an interim report in which they referred to certain legal difficulties which they had encountered in

adopting appropriate procedures for the conduct of the inquiry. There followed the enactment of the Committee of Public

Accounts of Dáil Éireann (Privilege and Procedure) Act 1970 (“the 1970 Act”) which conferred power on the Committee to

summon witnesses, examine them and require such witnesses to produce documents in their power or control. There was also

machinery providing inter alia for the refusal of a person duly summoned as a witness before the Committee to answer any

question to which the Committee might legally require an answer. The chairman of the Committee was empowered to “certify

the offence of that person” to the High Court, whereupon the High Court could, after such inquiry as it thought proper, take

steps for the punishment of the person in like manner as if he had been guilty of contempt of the High Court.

A chief superintendent of the Garda Síochána gave evidence to the Committee that the plaintiff had paid over money to the

Chief of Staff of the IRA in London and that he (the Chief Superintendent) “imagined” it came from the grant in aid fund. He also

said that his information came from confidential sources which he was not at liberty to reveal. The plaintiff, having been

summoned before the Committee, read out a written statement, in which, having referred to some of the factual issues which

arose, he said he would refuse to answer any further questions. The plaintiff having maintained that attitude, the chairman of

the Committee certified that “an offence under the said Act had been committed” by the plaintiff by reason of his refusal to

answer the questions.

The Attorney General having been given liberty by the High Court to serve notice on the plaintiff to show cause why he should

not be punished for the alleged offence and cause having been shown by the plaintiff, the matter came on for hearing before a

divisional court of the High Court. A plenary summons was also issued on behalf of the plaintiff claiming that certain provisions

of the 1970 Act were invalid having regard to the provisions of the Constitution.

In the High Court, counsel on behalf of the plaintiff did not rely solely on the alleged unconstitutionality of the 1970 Act: they

also resisted the contempt proceedings on a number of other grounds. In particular, they urged that the proceedings of the

Committee were conducted in a manner which violated the constitutional right of the plaintiff to fair procedures, an aspect of

the decision which is also relevant to these proceedings and which is considered at a later stage of this judgment. The High

Court rejected the challenge to the constitutionality of the 1970 Act and also found against the plaintiff in respect of the

grounds on which he had resisted the contempt proceedings.

The plaintiff having appealed to this court, the court, in their judgments, considered first the question as to whether the 1970

Act was invalid having regard to the provisions of the Constitution. The judgment of the court, which was delivered by O’Dalaigh

CJ, concluded that s.3(4) of the 1970 Act - which provided the machinery under which the chairman had purported to certify

that the plaintiff had committed an offence - was invalid having regard to Article 38 of the Constitution.

The court went on to consider the other grounds of appeal which raised questions independent of the constitutionality of the

1970 Act. Judgments on these issues were delivered by O’Dalaigh CJ and Fitzgerald and McLoughlin JJ, Walsh and Budd JJ

agreeing with O’Dalaigh CJ.

Counsel for the plaintiff is recorded as having submitted that

“the resolution by which the Committee was authorised to embark on these inquiries was intra vires Dáil Éireann to the

extent only that it authorised the ascertainment of the initial destination of the public funds which are the subject

matter of the inquiry. Thereafter, any transfers of the money are private financial transactions into which the

legislature can have no jurisdiction to inquire.... Money paid to the Irish Red Cross Society, though paid to a body set up

pursuant to an Act of the Oireachtas, is money paid into a private account.”

In his judgment, O’Dalaigh CJ referred to Standing Order 127 which defined the powers of the Committee of Public Accounts

“to examine and report to the Dáil upon the accounts showing the appropriation of the sums granted by the Dáil to meet

the public expenditure...”

He concluded that the examination of the expenditures of monies belonging to the Irish Red Cross Society, not being monies

granted by the Dáil to meet the public expenditure, was not a matter which, as such, fell within the jurisdiction of the

Committee of Public Accounts.

It is, accordingly, correct to say that, so far as the non-constitutional issues were concerned, no submission was advanced on

behalf of the plaintiff in that case to the effect that a committee of the Oireachtas had no inherent power to conduct a fact

finding inquiry the conclusions of which might adversely affect the good name or reputation of a person who was not a member

of the Oireachtas. This was the case, although counsel for the plaintiff, in his submissions, expressly relied on the guarantee

under Article 40.3.2° of the citizen’s good name in advancing the submission that the procedures adopted were not in

accordance with the Constitution.

If the submissions advanced on behalf of the respondents in the present case are well founded, the failure by counsel for the

plaintiff in that case to rely in any way on this point is, at first sight, inexplicable. The suggestion put forward by the divisional

court, admittedly somewhat tentatively, that it may have been because the inquiry in that case was being carried out with the

specific statutory powers “pertinent to that inquiry” is, with respect, clearly wrong. The inquiry in the present case is also being

carried out with specific statutory powers. What is common to both the 1970 Act and the 1997 Act is that, while they confer

specific powers, they at no point authorised the inquiry in issue.

In the course of the oral arguments in this court, a different reason was advanced, i.e., that the failure to raise the point may

have been because of a “tactical” reason. This was that the result of a finding by the High Court or this court that the

Oireachtas had no power to order such an inquiry might have been the establishment of a tribunal presided over by a judge. In

the context of the present case, the suggestion that the plaintiff’s legal advisors in In re Haughey considered that his

constitutional and legal rights would be more adequately protected by the Committee of Public Accounts than by a tribunal

presided over by a judge is somewhat surprising. However, the suggestion that this might have been the reason for not

advancing the submission in In re Haughey is also clearly wrong: the arguments successfully relied on could have had precisely

the same effect, since the response of the Oireachtas, in that case as in the present, could have been to authorise the

establishment of a tribunal of inquiry.

The conclusion is irresistible that Mr. Thomas Conolly SC., the foremost constitutional lawyer of his generation, was either

unaware of a point which, on the respondents’ arguments, should have been obvious from a reading of the provisions of the

Constitution dealing with the Oireachtas, or else thought it was of such little merit as to be not worth advancing. If

incomprehension on his part was the reason, it was a lack of understanding which must presumably have been shared by his

colleagues in the case, Mr. Anthony Hederman SC and Mr. Patrick Connolly, both of whom went on to hold the office of

attorney general, and one of whom became a judge of this court.

The difficulties do not end there. If the respondents are correct, this point of fundamental importance was not only entirely

overlooked by Mr. Conolly and his colleagues, but was, at the least, not considered as meriting even a passing reference by any

of the eight judges in the High Court and the Supreme Court, who included two former holders of the office of attorney general

and two judges whose role in the development of Irish constitutional law needs no elaboration, Walsh J and Henchy J. It is not

as if the court was not concerned with the legal basis of the inquiry: the resolutions which purported to establish it were

subjected to a detailed examination by counsel, the High Court and the Supreme Court in order to ascertain whether the inquiry

being conducted by the Committee was authorised by law.

And that is not all. In the course of that part of the judgment which dealt with the constitutional issue, O’Dalaigh CJ in

delivering the judgment of the court expressly drew attention to the precise constitutional nature of the functions being

discharged by the Committee. Addressing the argument that the Committee had effectively been empowered to try a criminal

offence, he said

“The Committee of Public Accounts is not a court and its members are not judges. The Constitution of Ireland is founded

on the doctrine of the tripartite division of the powers of government - legislative, executive and judicial - as appears

from an examination of Article 6, 15, 28 and 34; and a statute that conferred on a Committee of the legislature a power

to try a criminal offence would be repugnant to the Constitution and invalid, and a conviction by such Committee, and

any sentence pursuant thereto, could not stand”.

He went on to uphold the conclusion of the High Court that the power of the chairman to certify that an offence had been

committed was not constitutionally invalid. He concluded, however, that the procedure laid down for a trial of the offence in

question in the High Court was constitutionally infirm in not providing for a trial by jury.

One has to assume that, if the respondents are correct, while the learned Chief Justice was expressly addressing the

constitutional inhibitions on the powers of such committees, and, specifically, their power to conduct a trial of a criminal issue,

he was either unaware of, or indifferent to, the fact that the inquiry which the committee in that case were engaged in was

unconstitutional from beginning to end.

I do not find it in the least surprising that Costello J in Goodman -v- Hamilton, dismissed that view of the decision in In Re

Haughey and regarded it as supporting the proposition that the Oireachtas enjoyed an inherent power to initiate inquiries of

that nature whether by a tribunal or an Oireachtas Committee. His view of the effect of that decision was part of the reasoning

by which he reached his conclusion that the tribunal of inquiry under consideration in that case had been validly established. On

one view, it was accordingly part of the ratio of the decision which was upheld on appeal and is binding on this court. However,

even if his view that the Oireachtas enjoyed an inherent power to establish a committee to conduct an inquiry which reflected

on the good name of a citizen but did not involve any adjudication of civil or criminal liability was obiter, in the context of that

case, that does not mean that it was wrong. As it happens, it was the considered view of a judge who had not merely held the

office of attorney general but brought to it a wealth of parliamentary experience unrivalled by any of his predecessors.

I am satisfied that the Irish authorities lend overwhelming support to the submissions advanced on behalf of the Attorney

General and the Committee.

I turn finally to the authorities in England and the United States.

Of the former, the first is Howard -v- Gossett, a decision of the Court of Queen’s Bench dating from 1845. The plaintiff had

been arrested by the serjeant-at-arms of the House of Commons, having failed to attend when required to do so for the

purpose of being examined at the Bar of the House. The plaintiff’s case succeeded, because of defects in the form of the

warrant, but as to the inherent jurisdiction of the House to conduct an inquiry, Lord Denman CJ had this to say:

“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 inquiries can be bound; and it is unnecessary to attempt to do

so now; and I would be content to state that they may inquire into everything which concerns the public weal for them

to know, and they themselves, I think, are intrusted with determining with what falls within that category. Coextensive

with their jurisdiction to inquire, 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.”

Counsel for the respondents relied on that authority in support of the proposition that no such inherent power exists in the

Oireachtas and I shall return to it at a later stage. Two earlier authorities were also relied on by them, of which the first is

Beaumont -v- Barrett, which was decided by the Privy Council in 1836. The issue in that case was whether the House of

Assembly in Jamaica had power to commit to prison a person who was alleged to have published material which was a breach of

the privileges of the House. It was held that it had. However, in Kielley -v- Carson, decided in 1842, the Privy Council overruled

their earlier decision because, as they held, the inherent power of the imperial parliament derived from the particular character

of the House of Commons as being part of the High Court of Parliament. That inherent power, justified, as it was said, by the lex

et consuetudo parliamenti was not enjoyed by any inferior assembly, such as that in Jamaica, simply because it had the power

to legislate for that particular territory.

These latter authorities were, somewhat surprisingly, relied on in support of the proposition that the Oireachtas of the Irish Free

State enjoyed no inherent power to hold inquiries. I describe this as surprising because, elsewhere in their submissions counsel

relied strongly on what they correctly described as the radical and innovative nature of the 1922 Constitution in the context of

British constitutional theory. One of its distinctive features is vividly described by Kohn as follows.

“The dominions were clearly not states. Their constituent Acts, though in substance prepared by local conventions, were

British statutes, designed to entrust the British citizens living in the overseas provinces of the empire with such powers

of regional self-government as they required for the management of their local affairs. They were in origin no more than

measures of technical devolution necessitated by the exigencies of geography. They aspired in no sense to be regarded

as comprehensive codes of constitutional law comparable to the organic laws of continental States... The juridical status

of the Irish Free State was ex origine of an entirely different character. It embodied an indigenous national

statehood.”The judicial committee of the Privy Council took the view that the constitutional powers of the Irish Free

State derived from the statutes of the imperial parliament : see the advice of Viscount Sankey L.C. in Moore v Attorney

General (1935) IR 472 at pp. 486-487. The Supreme Court of Saorstát Éireann were in no doubt that this view had no

place in Irish law and that the powers of the Irish Free State were derived solely from the Act of Dáil Éireann sitting as a

constituent assembly passed on the 25th October 1922 and representing the people of Ireland. (See in particular the

judgments of Kennedy CJ and FitzGibbon J, agreeing on this if on nothing else, in The State (Ryan) v Lennon [1935] IR

170 and the fascinating analysis of the decision by Dr Gerard Hogan, “A Desert Island Case Set in the Silver Sea: The

State (Ryan) v Lennon” in O’Dell (ed.), Leading Cases of the Twentieth Century, p. 80.)

Authorities such as Kielley -v- Carson, accordingly, dealing as they do with inferior colonial assemblies, lend no support to the

proposition that the Oireachtas of the Irish Free State was incapable of enjoying such powers, unless the imperial parliament at

Westminster in its wisdom decided to confer them on the Oireachtas.

As to Howard -v- Gossett, that decision no doubt reflected in part at least the fact that in British constitutional theory

parliament itself constituted a “High Court”. But no one has sought to argue in this case that the inherent power of the

Oireachtas derives in any way from its enjoying an analogous status, still less that it inherited the power in some sense from the

Westminster Parliament.

Finally, there are the United States decisions of which the first is Anderson -v- Dunne where it was held that the House of

Representatives had power to attach and punish a person other than a member for contempt of its authority - in that case an

attempt to bribe one of its members - although no such power was expressly conferred by the Constitution. It was followed by

Kilbourn -v- Thompson where the question was whether the House of Representatives had exceeded its powers in directing one

of its committees to make a particular investigation: the decision was that it had. In considering whether the House of

Representatives had power to punish for a contempt of its authority, Miller J, giving the opinion the court, said that

“The powers of Congress itself, when acting through the concurrence of both branches, are dependent solely on the

Constitution...”

He went on to reject the proposition that the right of the House of Representatives to punish for contempt, if it existed, could

derive any support from the precedents and practices of the two Houses of the English Parliament. In the instant case, the

House of Representatives had purported to establish a special committee to inquire into the affairs of a company which had

become bankrupt and in which public monies had been deposited. The court concluded that

“The resolution of the House of Representatives authorising the investigation was in excess of the power conferred on

that body by the Constitution; .... the Committee, therefore, had no lawful authority to require Kilbourn to testify as a

witness beyond what he voluntarily chose to tell;.... the orders and resolutions of the House and the warrant of the

speaker, under which Kilbourne was imprisoned, are, in like manner, void for want of jurisdiction in that body, and .... his

imprisonment was without any lawful authority.”

The case was relied on subsequently in support of the proposition that neither House of Congress had power to make inquiries

and summon witnesses “in aid of contemplated legislation”. However, in McGrain -v- Doherty, the Supreme Court, while

acknowledging that there were expressions in the opinion of Miller J which might bear such an interpretation, declined to treat it

as a definitive authority for such a proposition. In that case Van de Vanter J, giving the opinion of the court said

“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 American 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.”

Finally, there is Watkins -v- United States. In that case a person had been convicted of a violation of a statute which made it a

misdemeanour for any person summoned as a witness by either House of Congress or any committee thereof to refuse to

answer any question “pertinent to the question under inquiry”. The petitioner was summoned to testify before a sub-committee

of the House of Representatives Committee on Un-American Activities and refused to answer questions as to whether he had

known certain other persons to have been members of the Communist party, on the ground that these questions were outside

the proper scope of the committee’s activities and not relevant to its work.

The Supreme Court, while holding that the petitioner had not been afforded a fair opportunity to determine whether he was

within his rights in refusing to answer and that the conviction was accordingly invalid under the due process clause of the Fifth

Amendment, made some important general observations on the power of Congress to conduct inquiries. Warren CJ, giving the

opinion of the court, said

“The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It

encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It

includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to

remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or

waste. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private

affairs of individuals without justification in terms of the functions of the Congress...... Nor is the Congress a law

enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is

an end in itself. It must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted

solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”

Substituting “Oireachtas” for “Congress” and “the executive” for “the Federal Government”, I would unhesitatingly adopt that

paragraph as a statement of the law in this jurisdiction.

Counsel for the respondents argued that this passage was not of any assistance to the appellants in this case, having regard to

the following statement in the judgment of the court in Haughey -v- Moriarty:

“The submission that the establishment of the inquiry in the present case was ultra vires the Act of 1921 since, as was

claimed, it is not in aid of the legislative processes, is unsustainable. Nor does it derive any support from the decision of

the United States Supreme Court in Watkins -v- United States which was concerned with the very different procedures

available to Congress in that jurisdiction.”

The court, at that point in its judgment, was solely concerned with the question as to whether the fact that the inquiries under

consideration might lead to no recommendations for legislation had as its necessary consequence that the inquiry was ultra

vires the 1921 Act. The court was doing no more than drawing attention to the fact that, to the extent that the American

authorities supported the proposition that the power to inquire could only be used in aid of the legislative function, the power

was necessarily more limited than under our Constitution, since, in sharp contrast to the position under the Irish Constitution,

the executive in the United States is not answerable to the Congress.

Counsel for the Respondents sought to distinguish this powerful current of authority in the US Supreme Court on two grounds.

First, they argued that, as in England, the cases proceeded on the basis that the power to inquire which was inherent in the

legislative process could not exist without the consequential power to secure the attendance of witnesses and the production

of documentary evidence. Since that consequential power was not inherent in, or expressly conferred, on the Oireachtas, they

urged, the power of inquiry to which it was consequential could not exist either.

The divisional court was impressed by this argument: I have to say, with respect, that I find it bafflingly illogical. If the power

to inquire is pointless and meaningless without the consequential power (and it is highly debatable whether that is soIf a civil

servant of any rank had been requested to appear before an inquiry being conducted by the Committee of Public Accounts

before the passage of the 1997 Act, could it be seriously suggested that he or she would have fearlessly refused to do so ?),

the consequence should be either a finding by the courts that it exists as a necessary consequence of the inherent power (as

in England and the United States) or the enactment of legislation conferring it (as in Ireland). To treat it as a ground for

supposing that the bare power to inquire does not exist in the first place is, to put it mildly, mystifying.

The second ground on which they sought to distinguish the United decisions was that the jurisprudence of the Supreme Court

adhered more closely to English constitutional precedents than could ever be the case in this country.

That proposition seems entirely at odds with the unequivocal statement of Miller J in Kilbourne that the power found its origins

in the Constitution of the United States and nowhere else. Far from there having been any subsequent disapproval of that

aspect of the decision in Thompson, as was somewhat faintly suggested, the later decisions, most notably Watkins, are even

more emphatic that the power exists because it is a necessary feature of the legislative process established by the

Constitution. There is not a scintilla of justification, in my view, for the proposition that it has been clung to in the United

States jurisprudence as one of what Professor Gwynn Morgan (in a different context, it has to be pointed out) has described as

“the eccentric relics” of the British Constitution.

In any event, I am bound to say that I find the historical argument - that this represents some form of filial attachment to

British constitutional practice which we have long since abandoned - less than convincing. It is based, in part at least, on the

judgment of Kingsmill Moore J (sitting as a High Court judge) in In re Irish Employers Mutual Insurance Association (1955) IR 176

and of O’Dalaigh J (as he then was) in Melling -v- O’Mathghamhna [1962] IR 1. In the first case, which foreshadowed the

subsequent decision of this court in Byrne -v Ireland [1972] IR 241, the learned judge was concerned with a specific issue, i.e.,

as to whether the royal prerogative had survived the enactment of the Constitution so as to preserve the supposed priority of

debts due to the State in insolvency proceedings. In the course of his judgment, he referred to the passing of the British North

America Act 1867 dealing with the future government of Canada and said

“Very different was the historical background of the Saorstat Éireann Constitution. It arose out of an armed revolt

against British rule and the terms of a treaty to put to an end to hostilities. Of those who enacted it nearly all had been

engaged in the revolt in one way or another and many had actually borne arms. There is not the slightest reason to

suppose that ‘with a view to the perpetuation of the connection with the mother country’ they desired ‘to follow the

model of the British Constitution so far as circumstances permit’. The admitted reproduction in the Constitution of many

of the features of the British Constitution is more properly attributable partially to a genuine appreciation of the inherent

excellence of those features, partially to the fact that the Constitution had much of the nature of a compromise

between British and Irish views.”

In the second case, O’Dalaigh J, in considering whether a particular criminal procedure had survived the enactment of the 1922

Constitution, said:

“The United States of 1775 which emerged as a republic looked upon itself as securing to itself the rights and privileges

of the glorious revolution of 1688. A once happy colony was being driven by the selfish taxation policies of the

Westminster government to sever its connection with the homeland. The parting was made in sorrow as the recitals to

the Declaration of Independence bear witness. Ireland’s case in 1922 is different. The framers of the Constitution of

Saorstat Éireann had no particular reason to look with reverence or respect to the British statute roll in Ireland as

affording them an example of standards which they would wish to enshrine in their new Constitution....”

Even if one leaves out of the equation the eminence of the two judges who arrived at those decisions, they would evoke no

dissent today and have indeed been frequently followed and applied. However, one does not necessarily have to accept the

historical excursus of O’Dalaigh CJ with the same enthusiasm. I would have thought that the measured cadences in which the

rebellious American offspring bade farewell to the motherland lost at least some of their resonance during the bloody War of

Independence and can hardly have been of much comfort when the British sacked Washington during the war of 1812.

However, what was of far more significance in the constitutional history of the United States was the complete and surgical

severance from the motherland reflected in the Constitution. In stark contrast to what happened in Ireland in 1922, every single

link with the empire was broken and a republican form of government established with an elected president as head of state and

chief executive. Radical and innovative the Irish Free State Constitution certainly was, as Kohn recognised, but it is seriously to

misread history to suppose that its framers intended, however desirable they thought this in at least some areas, to sever all

their links with the empire.

That they agreed, although only with the greatest reluctance to such features of the 1922 settlement as the Oath of

Allegiance, the institution of the governor general, the retention of the appeal to the Privy Council and the ambiguous position

of the new State in relation to its own defence and foreign policy, is a matter of history. (The same could be said, although in

an indirect fashion, of their acceptance of the exclusion of Northern Ireland from the new dispensation based in part on the

misplaced optimism with which they regarded the establishment of the Boundary Commission.) It is also the fact that they took

the opportunity while adopting the Westminster model of introducing some interesting innovations in that area, such as the role

of “external” ministers and the “initiative” process, both effectively abandoned in 1937.

However, far from abandoning the Westminster parliamentary system in its entirety, they seemed happy to perpetuate most of

its features in the new political order they were establishing, doubtless because, as Kingsmill Moore J pointed out, they were

worthy of adoption rather than because they were British, an approach in many ways reminiscent of that of the American

founding fathers.

The only direct evidence put forward by in support of the submission that there was a conscious abandonment of the

committee system in 1922 is the fact that, as pointed out by Professor Farrell in his valuable series of articles in the Irish Jurist,

a draft prepared by James Murnaghan SC (later a member of the High Court and Supreme Court) and Alfred O’Rahilly expressly

empowered the Oireachtas to establish committees of inquiry. But the fact that this was rejected is a remarkably slender basis

for attributing to the framers of the Constitution an intention to jettison the committee system in its entirety, particularly when

one bears in mind that less than two years after the enactment of the Constitution they put in place provisions to enable

witnesses to give evidence on oath before such committees. The Murnaghan/O’Rahilly draft, was in any event, to put it no more

strongly, a somewhat idiosyncratic document (although some of its proposals were adopted by De Valera in 1937) and, as

Professor Farrell makes clear, there were many factors at work in the somewhat fraught process with led to the ultimate

emergence of the Constitution as enacted.Denham J in her judgment also refers to another article by Professor Farrell, “A Note

on the Dáil Constitution 1919”, (1969) 4 Irish Jurist 127, in which he discusses a proposal made in 1919 in the first Dáil for the

transferring of ministerial responsibility to committees. From what one can glean from the article, it appears to have been a far

more revolutionary proposal than anything contemplated in 1922 and I do not think that, in the context of these proceedings,

one can draw any conclusion from the fact that it was not adopted then or in 1922.

Ultimately, of course, the English and United States decisions can be of no more than persuasive force, but they confirm that,

in the case of the two states whose parliamentary and legal systems have had by far the greatest influence on ours, it has

repeatedly been made clear that their legislators enjoy the inherent power to initiate inquiries of which our legislature is said to

be bereft.

I am satisfied that the conclusion of the divisional court that there was no inherent power to hold inquiries of this nature,

subject to the limitations accepted by the Attorney General, was wrong in principle, and irreconcilable with the decisions of this

court in In Re Haughey, Goodman -v- Hamilton and Haughey -v- Moriarty. I am fortified in arriving at that conclusion by the

decisions of the United States Supreme Court to which I have referred and I am satisfied that no guidance whatever is to be

gained from the denial by the English courts of analogous powers as inhering in what they regarded as inferior legislative

assemblies throughout the then British empire. If I entertained any doubts on this issue, which I do not, they would be entirely

allayed by the history of parliamentary select committees in this jurisdiction since 1922, and, in particular, by the tacit

acceptance by this court of the existence of the inherent power in In Re Haughey.

There remains the argument which the divisional court did not find it necessary to address but which was relied on in the notice

to vary in this case and was also the subject of written and oral submissions, i.e., that the inherent power to inquire in question

is constitutionally impermissible because of what is described as “structural bias” on the part of the members of such a

committee.

It is important to distinguish this argument from an entirely separate argument which I will consider at a later stage and which

related to what is alleged to be “objective bias” on the part of specified members of the committee in this case and, in

particular, the Chairman and Deputies Howlin, McGuinness and Shatter. It was said that comments they had made to the media

and interventions by them during the hearings of the committee demonstrated that they had already come to conclusions on

the matters which the committee had to consider and that, in the mind of a reasonable person, this could legitimately lead to

an apprehension that they were approaching the matters within their remit in a manner vitiated by bias.

The submission I am now considering is that, even members of the Oireachtas who sat on such a committee who demonstrated

no partiality and whose participation could not be impeached because of objective bias (stemming, for example, from some

interest, financial or otherwise, that they might have in the outcome of the committee’s deliberations) were disqualified from so

acting. It is said that, since as legislators they owe a duty to represent their constituents, they are constitutionally incapable

of approaching the resolution of issues such as this with the appropriate detachment.

I see no reason why Dáil deputies and senators should not approach their participation in committees of this nature with minds

unclouded by pressures from their constituents or, for that matter, from the political parties which they represent. No doubt,

there may be occasions when a deputy or senator should, at the least, inform his or her colleagues of matters which he or she

has learned during his/her constituency work and which, in the result, might make it difficult for him or her to approach the

committee’s deliberations with the requisite detachment or, at the very least, with the necessary appearance of detachment. In

a different sphere, judges find themselves confronted with the same problem from time to time and it has never been

suggested, nor could it be suggested, that that, of itself and without more, prevents them from, in general, discharging their

constitutional duties fairly and impartially.

Such an argument, indeed, gives little, if any, weight to the respect for the other organs of government which, as has been

repeatedly emphasised, is an essential feature of the separation of powers enshrined in the Constitution. Manifestly our

legislators frequently disappoint the expectations which the voters place in them and have on occasions abused the trust which

is vested in them. But, viewing the matter from the perspective of principle, I see no reason to deny them the benefit of the

presumption established in cases such as East Donegal Co-operative -v- Attorney General [1970] IR 317 that they will conduct

their proceedings in accordance with the requirements of natural and constitutional justice, even though we are concerned here

with an inherent power rather than one expressly conferred by an Act of the Oireachtas. In any event, as was authoritatively

established in In re Haughey, any departure from the requirements of those canons will be restrained and corrected by the

courts where that is necessary to protect and vindicate the rights of the citizen.

I should finally observe that it would indeed be strange if the legislators were constitutionally debarred because of what is

claimed to be “structural bias” from embarking on such an inquiry when the Constitution itself empowers them, not merely to

initiate an inquiry, but to adjudicate (using that expression in its proper sense) in two of the most solemn cases imaginable: the

impeachment of the President under Article 12 and the removal of judges of the Superior Courts from office under Article 35.4.

Counsel for the respondents did not shrink from the proposition that, even when engaged on those momentous functions, the

Constitution envisaged that the legislators would yield to the wishes of their constituents or answer the dictates of the party

whips. I see no reason whatever to attribute to the framers of the Constitution an acceptance that, in carrying out the

impeachment process either in the case of the President or of judges, legislators could or would be legitimately swayed by

wholly extraneous and irrelevant factors.

I should add that, while some reference was made during the course of the arguments to Order 58 of the Dáil Standing Orders

prohibiting the making of “an utterance in the nature of being defamatory” and providing that it “may be prima facie an abuse

of privilege”, I am satisfied that it has no relevance to the issue under consideration. If the Houses of the Oireachtas enjoy an

inherent power to authorise the holding of fact finding inquiries by committees, the findings of which may reflect on the good

name of citizens, that inherent power could not be removed by the adoption of a standing order nor does the order in question

purport to do anything of the kind. The fact that the Oireachtas has chosen, by its standing orders, to ensure, so far as it can,

that members of the Oireachtas do not abuse the far reaching privileges conferred on them by Article 15.13 of the Constitution

is of no relevance to the issue as to whether the Oireachtas has power to authorise inquiries of the nature under consideration

in these proceedings.

As to the form of declaration which Denham J, in the judgment which she will deliver this morning, proposes should be

substituted for the declaration granted in the High Court, it is unnecessary for me to express any opinion, having regard to the

view that I take as to the existence of the inherent power relied on by the appellants.

I would make some final observations on this issue. The choice as to which is the more suitable machinery for conducting an

inquiry into a matter of public importance - an Oireachtas Committee or a tribunal of inquiry - in many cases presents no

difficulties. Allegations of misconduct by elected politicians have invariably been the subject of inquiries by tribunals since the

foundation of the State, for the reasons which led to the abandonment of the select committee form of inquiry in such cases in

the post-Marconi era and the enactment of the 1921 Act. Nor could an Oireachtas committee conceivably represent an

appropriate machinery for investigating disasters such as Whiddy and Artane. There are also other forms of inquiry which would

inevitably involve the taking of so much evidence as to render an inquiry by an Oireachtas Committee seriously impracticable. In

addition, an inquiry which was exclusively directed to establishing whether a particular person or persons had committed criminal

acts might well be unsuitable for an Oireachtas Committee or, for that matter, a tribunal to undertake since, apart from any

other considerations, any public interest it might serve could be outweighed by the possibility of subsequent criminal

proceedings being prejudiced.

There remain cases in which investigation by an Oireachtas committee may be perfectly appropriate and in which it will

inevitably have to find facts, if its conclusions are to be of any value, and where, in the result, the reputations of individuals

may be affected. It may be that, in some of those cases, meticulous adherence to the requirements of natural justice, which

has been insisted on by the courts since in In re Haughey, would mean that inquiry by committee would be as expensive and

cumbersome as an inquiry by a tribunal.

However, it would be unwise to assume that observance of the requirements of natural justice is the only factor which leads to

inquiry by tribunal being in some cases a more protracted and expensive form of procedure than other forms of inquiry, whether

by an Oireachtas committee or some other machinery. Everyone who has participated as a lawyer or judge in such tribunals

knows that, with the best will in the world, those engaged at a professional level find it difficult to abandon an approach which

is appropriate in adversarial litigation but unsatisfactory in what is essentially an inquisitorial procedure. The courts have also

had ample experience of the significant delays which occur in the conduct of such inquiries while the judicial review process

pursues its sometimes painfully slow and expensive course through the legal system. While this has sometimes been the

inevitable consequence of the requirement to observe natural justice, that has not always been the case.

The choice between the various methods of inquiry is not one which should be made by the judicial arm of government. The

consequences are glaringly apparent in the emasculation, which will be the result of this decision, of the operations of the

Committee of Public Accounts. The historic function of the legislature in the control of supply, particularly in a period of massive

public expenditure, is one of critical importance, although it may not involve any exercise by either house of its legislative

functions. To eliminate any possibility of a fact finding inquiry by parliament in that area, because the findings may of necessity

attribute responsibility to individuals in the public service, is a step which must give rise to serious misgivings. The result is a

disquieting, and I would hope unique, assumption of a decision in the area of policy which should be quintessentially that of

parliament itself.

I am satisfied that, in the result, the challenge to the inherent power of the Oireachtas to establish such committees, subject

to the limitations accepted by the Attorney General, fails.

Justiciability.

As already noted, the divisional court granted declarations sought by the applicants that

(a) the committee in purporting to report on and investigate the Abbeylara incident had acted ultra vires the powers

conferred by the resolution of Dáil and Seanad Éireann of the 25th October 2000;

(b) the submission of the Committee to the Compellability Committee on the 11th April 2001 was made in breach of the

terms of reference as comprised in the order establishing the committee and without jurisdiction.

In addition, the divisional court granted an order of certiorari quashing the resolution of the 12th April 2001 whereby the

Committee purported to extend the terms of reference of the Committee and whereby the Committee was purportedly

empowered, if it considered it necessary to do so, to hear evidence in accordance with the provisions of the 1997 Act and to

report to the Joint Committee thereon and to include its findings and conclusions and recommendations, if any.

In the High Court and again in this court, the Committee challenged the jurisdiction of the High Court to grant relief of this

nature on the ground that it dealt with matters which related exclusively to the functions of the Houses of the Oireachtas and,

under the Constitution, were not justiciable by the courts.

It should be noted that it was not submitted on behalf of the Committee, either in the High Court or in this court that the claim

as to non justiciablity extended to the compliance or otherwise of the Committee and the Compellability Committee with the

provisions of the 1997 Act. It was also accepted that the High Court was entitled to examine the procedures undertaken by the

committee with a view to ascertaining whether they complied with the requirements of natural justice and fair procedures, a

concession inevitably made in the light of the decision of this court in In re Haughey.

The Findings of the Divisional Court.

Having considered the relevant provisions of the Constitution and a number of authorities in this jurisdiction and in the United

States, the divisional court came to the following conclusions:

(1) The claim of non-justiciability was not supported by the express words of the Constitution itself.

(2) There was no indication in the Constitution of any immunity of the type contended for in these proceedings, although

immunity was expressly conferred in respect of specific matters, such as utterances in both Houses of the Oireachtas.

(3) The claim to non-justiciability was inconsistent with the approach which had been taken by the courts in this

jurisdiction in respect of the Oireachtas when not exercising its legislative powers, particularly by this court in re

Haughey.

(4) The claim was inconsistent with the approach taken by the United States Supreme Court in dealing with the rights of

persons compelled to attend congressional hearings.

The divisional court accordingly concluded that all of the complaints made by the respondents were justiciable and could be the

subject of examination by the court.

In the High Court, the claim of the Committee that these matters were not justiciable was supported to a limited extent by the

Attorney General. As already noted, his appeal to this court was confined to the issue of the inherent power of the Committee

to conduct the inquiry. The Committee have, however, appealed against the findings of the divisional court in relation to all

these matters.

(b) Submissions on behalf of the Committee.

On behalf of the Committee, it was submitted that the divisional court had erred in supposing that the principle which rendered

immune from scrutiny by the courts the internal procedures of the Oireachtas was confined to the exercise by it of its

legislative powers or, alternatively, had no application when parliament was purporting to deal with citizens other than its own

members. It was argued that such citizens who were affected by statements or decisions made concerning him/her by the

Oireachtas was not without means redress: his remedy, however, lay through the political process rather than in the courts.

They cited in support of this argument the decision of Costello J in O’Reilly -v- Limerick Corporation [1989] ILRM 181 and

observations of Hardiman J in this court in Sinnott-v- Minister for Education and Science and Ors: (Unreported; judgment

delivered 12th July 2001).

It was further submitted that the divisional court were mistaken in treating In re Haughey as an authority on the issue as to

whether the proceedings which were sought to be impugned in this case were justiciable, and that their approach to that case

was inconsistent with their view that it was not an authority on the question of the inherent power, since that issue had not

been raised or debated in the case. It was suggested that the same could be said of the issue of non-justiciability.

It was further submitted that, although it had been indicated in Goodman -v- Hamilton and Haughey -v- Moriarty, that a

resolution of either House could be reviewed in the Courts on the grounds of impropriety or as constituting an abuse of power,

such considerations did not arise in this case.

It was also submitted that the US decisions referred to in the judgment of the divisional court, and in particular that of the

Supreme Court in Watkins, were explicable because they raised questions of fair procedures affecting citizens which would

unquestionably be unjusticiable in this jurisdiction also. They also cited in support of their submissions the judgment of

Geoghegan J at first instance in Haughey -v- Moriarty in which he declined to admit evidence directed to showing that there

was an irregularity in the convening of the Seanad for the purposes of the resolution under scrutiny in that case, as it seemed

to him that it was not a justiciable matter. They also cited the decisions of this court in Slattery -v- An Taoiseach [1993] 1 IR

286, O’Malley -v- An Ceann Comhairle [1997] 1 IR 427 and Wireless Dealers Association -v- Fair Trade Commission (Unreported;

judgment delivered 14th March 1956) and of the High Court of the Irish Free State in O’Cruadhlaocih -v- Minister for Finance

[1934] 68 ILTR 174.

Counsel on behalf of the respondents submitted that the doctrine contended for by the Committee was expressly reflected in

Article 9 of the Bill of Rights 1689, which was consistent with the sovereignty of parliament under the unwritten British

Constitution. That provision, however, was not now and never had been part of Irish law: the privileges of the Oireachtas are

as defined in Articles 15.10, 15.12 and 15.13 and give no support to the claim advanced by the Committee. They cited the

observations of Walsh J in Byrne -v- Ireland to the effect that there was no power, institution or person in the land free of the

law, save where such immunity was expressed, or provided for, in the Constitution itself.

They further submitted that decisions such as O’Malley -v- An Ceann Comhairle were explicable as dealing solely with the

internal processes of the Oireachtas which did not affect citizens who were not members. It was further submitted that where,

as here, a dispute arises as to whether procedures affecting the rights of citizens who are not members of the Oireachtas have

been observed, it is only the courts which can conclusively decide that issue, citing observations of Walsh J in Crotty -v-

Ireland [1987] IR 713 at p.778.

Decisions such as Sinnott -v Minister for Education, O’Reilly -v- Minister for Education and T.D. (a minor) -v- Minister for

Education and Others (Unreported; judgments delivered 17th December 2001) were distinguishable, since they dealt with the

quite different issue as to the role of the courts, if any, in overseeing the application of resources, a matter peculiarly within

the policy making role of the executive and the Oireachtas.

They also submitted that the refusal of the High Court in Haughey -v- Moriarty to admit evidence relating to the convening of

the Seanad for the purpose of passing the resolutions under scrutiny was also distinguishable: the actions of the legislature,

once convened, whether they take the form of legislation or resolutions, are subject to scrutiny by the courts, although not the

procedures employed in convening one or both of the Houses.

It was further submitted that the divisional court were entirely correct in holding that re Haughey was a clear authority for the

proposition that the Standing Orders of the Dáil could be scrutinised in order to ascertain whether a particular inquiry had been

authorised.

(c) Conclusions.

Article 15.10 of the Constitution provides that

“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.”

Article 15.12 provides that

“All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House

wherever published shall be privileged.”

Article 13 provides that

“The members of each House of the Oireachtas shall, except in cases of treason as defined in this Constitution, felony or

breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either

House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than

the House itself.”

These extensive immunities and privileges, denied to citizens who are not members of the Houses of the Oireachtas, are an

important feature of the parliamentary democracy established under the Constitution. Neither these provisions, however, nor

any other provision of the Constitution expressly exempt from scrutiny by the courts the actions of the Oireachtas or its

individual members save to the extent specified in Article 15.12 and 13.

That is not to say that the courts will accept every invitation to interfere with the conduct by the Oireachtas of its own

affairs: such an approach would not be consistent with the separation of powers enjoined by the Constitution. Specifically, the

courts have made it clear that they will not intervene in the manner in which the House exercises its jurisdiction under Article

15.10 to make its own rules and standing orders and to ensure freedom of debate where the actions sought to be impugned do

not affect the rights of citizens who are not members of the House: see the decision of this court in Slattery -v- An Taoiseach.

It was also held by the former Supreme Court in Wireless Dealers’ Association -v- Fair Trade Commission, that the courts could

not intervene in the legislative function itself: their powers to find legislation invalid having regard to the provisions of the

Constitution arise only after the enactment of legislation by the Oireachtas, save in the case of a reference of a Bill by the

President to this court under Article 26. Nor, in general, will the courts assume the role exclusively assigned to the Oireachtas in

the raising of taxation and the distribution of public resources, as more recently made clear by this court in T. D. and Others -v-

Minister for Education and Science and Others.

That resolutions authorising the establishment by the executive of a tribunal of inquiry invested with the powers specified under

the 1921 Act may be scrutinised by the courts and their legal effect conclusively resolved by the courts is clear from the

decisions in Goodman -v- Hamilton and Haughey -v- Moriarty. However, it is equally clear, as Geoghegan J found at first

instance in the latter case, that the actual process by which parliament is convened for the purpose of passing such resolution

is not justiciable.

Different considerations apply, however, where, as here, the Oireachtas purports to establish a Committee empowered to

inquire and make findings on matters which may unarguably affect the good name and reputations of citizens who are not

members of either House. An examination by the courts of the manner in which such an inquiry is established in no way

trespasses on the exclusive role of the Oireachtas in legislation. Nor does it in any way qualify or dilute the exclusive role of the

Oireachtas in regulating its own affairs.

Even if there were no authority to guide this court on this issue, I would, accordingly, be satisfied that, as a matter of principle,

the divisional court was correct in holding that these issues were justiciable. The matter, is however, put beyond doubt, in my

view, by the decision of this court in re Haughey.

As I have already pointed out, in his judgment, O’Dalaigh CJ expressly found that

“the examination of the expenditure of monies belonging to the Irish Red Cross Society, not being monies granted by the

Dáil to meet public expenditure, is not a matter which, as such, falls within the jurisdiction of the Committee of Public

Accounts.”

Such a finding was plainly irreconcilable with any view on the part of the learned Chief Justice that this was not a justiciable

issue. Similarly, as the divisional court pointed out, O’Dalaigh CJ, in another part of his judgment, expressed the view that the

committee in that case was not legally entitled to an answer to any question which was not relevant to the proceedings and

which was not within its terms of reference. Similarly, his judgment considered the powers granted to the Committee of Public

Accounts under a specific standing order and the validity of what purported to be a certificate of the committee having regard

to its terms of reference. I have no doubt that the divisional court were correct in holding that the decision in re Haughey

conclusively disposes of the claim made on behalf of the committee in the present case that, subject to the qualifications

already referred to, the issues raised in these proceedings were not justiciable.

The Ultra Vires Issue.

The respondents claim that the proceedings of the Committee in general, and the directions purportedly issued to the

respondents on foot of the 1997 Act in particular, were ultra vires the powers of the committee, even assuming that it enjoyed

the power to conduct an inquiry of this nature in the first place. Their grounds for that claim can be summarised as follows.

First, they say that the order purportedly establishing the committee did no more than require it to consider the report by the

Commissioner of the Garda Síochána and submissions received thereon and to report to the Joint Committee thereon. Their

application to the Compellability Committee, however, it was said, treated their remit as having been extended so that they

were now empowered

“To inquire into the Abbeylara incident and related matters and to address possible conflicts of fact, as in the opinion of

the [Committee] derived directly or indirectly from oral or documentary evidence.”

In addition, two amendments were purportedly made by the Joint Committee to their order establishing the Committee. The first

- that on April 12th - purportedly amended the original order by empowering the Committee

“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 [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 [Committee].”

This purportedly replaced an earlier amendment of the 10th April which had given the Committee power, if it considered it

necessary to do so, to hear evidence in accordance with the provisions of the 1997 Act.

The second amendment on the 26th April purported to cure a defect in the order establishing the Committee by substituting

references to the appropriate sub-paragraphs in the relevant Orders of Reference, i.e. (vi) in the case of the Dáil and (v) in the

case of the Seanad..

In addition, it is claimed that there was no consent in writing of the Compellability Committee at the time the directions were

purportedly issued to the respondents and that the existence of such a consent in writing was, under the terms of the Act, a

precondition to the exercise by the Committee of the power to issue directions. It was further claimed that, in its written

submission to the Compellability Committee, the Committee had misrepresented the position as to its powers, since it referred to

the Order establishing the Committee in terms of the amendment subsequently passed on April 12th. Finally, it was said, that

the consent itself was also defective in failing to specify, as required by the 1997 Act, the specific functions of the Committee

to which the consent was to relate.

In its judgment, the divisional court found that the task of the Committee, as defined by the Joint Committee, was to consider

the report and submissions received thereon and to report back. It had, however, of its own motion enlarged this into an inquiry

into the Abbeylara incident itself. This, the court held, the Committee was not entitled to do. As they put 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.”

As to the consent, the court held that, since the existence of a consent in writing was, under the terms of the 1997 Act, an

essential precondition to the issuing by the Committee of directions to the respondents, the fact that there was no consent in

writing in existence at the time the directions were issued was fatal to their validity. The divisional court also found that the

purported consent in writing dated the 30th April was, in any event, defective, since it did not specify the functions of the

committee to which it related as required by the 1997 Act. The committee also found that the application to the Compellability

Committee was defective in that it represented to the Committee that it enjoyed powers which in fact were not conferred on it

until the amendment of the following day,

(b) Submissions of the Parties.

On behalf of the Committee, Mr. Ryan submitted that, in considering whether the committee had unilaterally and unlawfully

extended their terms of reference, the precise sequence of events was of importance. They had been asked by the Joint

Committee to consider, not merely the report of the Commissioner, but also any submissions they received relating thereto and,

on the 4th April, resolutions had been passed by both Houses of the Oireachtas giving the Committee power to send for

persons, papers and records. The Committee were, accordingly, clearly and unambiguously empowered, not merely to report to

the Joint Committee on the Commissioner’s report, but to conduct an inquiry into the events which had given rise to it and the

submissions which the Committee had received. He said that the object of the application to the Compellability Committee,

supported by the documentation in relation to these matters, was in order to enable the Committee, not merely to conduct the

inquiry - that they were already empowered to do - but to obtain the consent of the Compellability Committee to the exercise

by them of the powers of compulsion conferred by the 1997 Act. All of that had been made clear to the respondents in the

letter from the chairman of the Committee conveying the direction to each of the respondents to attend the hearing on

Tuesday 24th April and enclosing the interim report of the Joint Committee, the rules and guidelines for committees and the

memorandum of procedure and the conduct of proceedings drawn up by the Committee. There could have been no doubt in the

minds of the respondents, he said, as to the nature of the inquiry which was being undertaken when the public hearings began

on the 24th April and that was indeed demonstrated by the objection raised by counsel on their behalf as to the nature of the

inquiry being undertaken.

As to the consent in writing by the Compellability Committee, Mr. Ryan submitted that there was nothing in the wording of the

relevant provisions of the 1997 Act to suggest that the consent had to exist in written form prior to the issuing of directions.

The requirement that its existence be evidenced in writing in a document signed by the chairman of the Committee was no more

than an evidential requirement: the actual giving of the consent was effected by the Compellability Committee at their meeting.

He further submitted that, contrary to what had been found by the divisional court, the consent in writing did specify the

function of the committee to which it related, i.e., the holding of an inquiry into the Abbeylara incident. He further submitted

that the committee, in its application to the Compellability Committee for the consent, had not in any significant manner

misstated the terms of reference of the sub-committee.

On behalf of the respondents, Mr. John Rogers SC submitted that the resolutions from Dáil and Seanad Éireann of October 25th

did not authorise any inquiry at all: they merely referred the report of the Commissioner to the Joint Committee. The resolutions

of the Dáil and Seanad of April 4th giving the Committee the power to send for persons, papers and records were made, he

pointed out, before a series of further amendments to the Order, including the amendment of April 10th allowing the sub-

committee to hear evidence in accordance with the provisions of the 1997 Act and to make findings. He also submitted that an

analysis of the e-mails which had been exchanged between the officials of the Oireachtas showed that they had wrongfully

given the impression that a consent in writing existed at a particular time and, although this had been denied on affidavit by the

chairman of the committee, he had subsequently withdrawn that denial in a further affidavit on the 23rd July 2001, i.e., after

the hearing before the divisional court had commenced.

As to the jurisdiction of the Committee to conduct the inquiry, insofar as it existed at all, he submitted that it could derive only

from the resolutions of the Dáil and Seanad dated the 25th October. They, however, did no more than refer the Garda

Commissioner’s report to the Joint Committee. Those resolutions, if they were to provide the appropriate jurisdictional basis for

the subsequent proceedings of the Committee, would have had to define the scope of the inquiry and accord the persons who

were being summoned before the Committee the right to determine what questions might be lawfully be asked of them, and the

extent to which, if at all, the inquiry might result in their being the subject of adverse comments or findings. He cited in this

context the opinions of the United States Supreme Court in Watkins -v- United States.

As to the absence of the consent in writing, Mr. Rogers submitted that the wording of s.3(9)(a) of the 1997 Act was

unambiguous in requiring the consent to be in writing and the document containing it to be signed by the chairman of the

committee. This had not been met in the case of the consent in these proceedings. He also submitted that the Committee, in

their application to the Compellability Committee had clearly misstated the extent of their powers as they existed at that date

and the divisional court were correct in so holding. He also submitted that the consent originally furnished was defective in not

complying with the precise wording of s.3(9)(b) in specifying the functions of the Committee to which it related.

(c) Conclusions.

It is clear beyond argument that there was a series of errors in the drafting of the various orders and resolutions and the

amendments thereto relating to the establishment of the Committee, the setting out of its functions and terms of reference and

the application to the Compellability Committee for their consent to the giving of directions to the respondents.

Officials of the Oireachtas are not, however, alone in being fallible mortals. The courts have long recognised that similar errors

occur almost on a daily basis in the conduct of both civil and criminal proceedings and that mistakes are not the monopoly of

any one section concerned in the judicial process: judges, counsel, solicitors and court officials, all alike, can contribute their

quota of errors. It is partly for that reason that courts have traditionally enjoyed extensive powers to amend pleadings and, in

exercising that power of amendment, judges have placed in the forefront of their approach the importance of seeing that

justice is done.

In saying that, I would not like to be taken as being in any sense critical of counsel for the respondents for carrying out his

professional task of analysing and relying on the various defects which have come to light in the proceedings in the Oireachtas

in this case. Nor would I be in any way critical of the divisional court for conducting a careful and detailed review of the manner

in which the inquiry came into being. Having correctly concluded that these were justiciable issues, they could not avoid

carrying out such a review.

I would also reject any suggestion that the courts, in conducting such an inquiry, should overlook or dismiss as irrelevant

procedural defects of this nature. Moreover, since we are not concerned here with the exercise of the judicial power of the

State, a failure to comply with the appropriate procedures cannot be excused on the ground that an over-meticulous adherence

to procedural requirements could defeat the ends of justice.

I would also readily accept the submission on behalf of the respondents that they could not lawfully be compelled to attend

hearings of the committee, answer questions put to them and expose themselves to the rigour of the criminal law in the event

of their non-compliance, where the scope of the inquiry was not clearly laid down in the resolutions of the Oireachtas which

brought it about. As Warren CJ said in Watkins -v- United States:

“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 authorising 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 investigators. 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.”

It is, however, illuminating to compare the subject matter of that case with what has happened here. Its subject was, of

course, the notorious Un-American Activities Committee whose authority was defined by resolution in 1938 as follows:

“The Committee on Un-American Activities, as a whole or by sub-committee, is authorised to make from time to time

investigations of (1) the extent, character, and object of Un-American propaganda activities in the United States (2) the

diffusion within the United States of subversive and Un-American propaganda that is instigated from foreign countries or

of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution and (3) all

other questions in relation thereto that would aid Congress in any necessary remedial legislation.”

It is hardly surprising that Warren CJ said that it would be difficult to imagine a less explicit authorising resolution. He also

pointed out that

“Combining the language of the resolution with the construction it has been given, it is evident that the preliminary

control of the committee exercised by the House of Representatives is slight or non existent. No one could reasonably

deduce from the charter the kind of investigation that the committee was directed to make. As a result, we are asked

to engage in a process of retroactive rationalisation. Looking backward from the events that transpired, we are asked to

uphold the committee’s actions unless it appears that they were clearly not authorised by the charter. As a corollary to

this inverse approach, the government urges that we must view the matter hospitably to the power of the Congress -

that if there is any legislative purpose which might have been furthered by the kind of disclosure sought, the witness

must be punished for withholding it. No doubt every reasonable indulgence of legality must be accorded to the actions of

a co-ordinate branch of our government. But such deference cannot yield to an unnecessary and unreasonable

dissipation of precious constitutional freedoms.”

Let us compare that with what has happened in this case. Both Houses of the Oireachtas passed resolutions referring the report

of the Garda Commissioner to the Joint Committee. That committee then had the power by virtue of paragraph (2)(a)(vi) of the

Dáil orders of reference and paragraph 1(a)(v) of the Seanad orders of reference to consider that report and report thereon to

both Houses of the Oireachtas. (The errors in the order appointing the Committee, which were corrected on April 26th, could

have misled no one.) In turn, the Joint Committee was empowered by Standing Order 78A(5) of Dáil Standing Orders

“To appoint sub-committees and to refer to such sub-committees any matter comprehended by its orders of reference

and to delegate any of its powers to such sub-committees, including power to report directly to the Dáil.”

An identical text is contained on Seanad Standing Order 65.

In pursuance of that power, the Committee was established

“To consider the report to the Minister for Justice, Equality and Law Reform by the Commissioner of the Garda Síochána

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”

That it was intended that the Committee should hear evidence in accordance with the provisions of the 1997 Act and report to

the Joint Committee was made perfectly clear by the resolution of both Houses on the 4th April empowering the Committee, in

the historic phrase now enshrined in the 1997 Act, “to send for persons, papers and records” and by the amendment of the

10th April, entitling it to hear evidence in accordance with the 1997 Act and report to the Joint Committee thereon.

The Committee was thus established to inquire into a specific incident, the death of Mr. John Carthy during the course of a

Garda operation, and to report its findings to the Joint Committee so that they in turn could report to both Houses of the

Oireachtas. Its specific and confined terms of reference could not be in greater contrast to the wide and vague remit given to

the Committee on Un-American Activities which was the subject of Watkins -v- United States and whose activities, by the time

they came under judicial scrutiny some 20 years later, were, in the view of the Supreme Court, virtually outside the control of

Congress.

The Committee had also specified in detail, in their application to the Compellability Committee, the issues which they

considered would arise and the witnesses whom they intended to call. That statement of issues and the list of witnesses were

also furnished to witnesses, including the respondents. I am satisfied that, by the time the Committee commenced its hearings

the respondents and their legal advisors were fully aware of the issues with which the inquiry was proposing to deal and,

indeed, from the outset strenuously contested the right of the Committee to conduct the inquiry into those issues.

As to the challenge to the issue of the directions by the Committee on the ground that the consent in writing of the

Compellability Committee was not in existence at the date they were given, which was upheld by the divisional court, I agree

with the analysis carried out by Murphy J of this matter in his judgment and with the conclusion at which he has arrived. I am

also satisfied that, while the application to the Compellability Committee undoubtedly was in error in referring to the order

establishing the committee as including the amendment which was not actually effected until 12th April, there is not the

slightest reason to suppose that the Compellability Committee would have been misled to any significant degree by this mistake.

I am also satisfied that the consent in writing was not defective, as held by the divisional court in failing to relate to “specified

functions” of a particular Committee. The consent was stated to be for the express purpose of permitting the Committee to

inquire into the Abbeylara incident and to address such possible conflict of facts as in their opinion arose directly or indirectly

from oral or documentary evidence. That, in summary form, was a specific function of the Committee and I am not clear, with

respect, how the conclusion was drawn that there was “no reference to the functions of the [Committee]” in the written

consent.

I am, accordingly, satisfied that the directions issued by the Committee to the respondents and the proceedings of the

Committee, until such time as they were halted by the present proceedings, were not ultra vires the powers of the Oireachtas.

Fair Procedures.

It has already been pointed out that the chairman and two members of the Committee, Deputy Marian McGuinness and Deputy

Alan Shatter appeared on television or radio to discuss the inquiry: the chairman, indeed took part in a television discussion on

the day the Committee began its hearings. In addition, members of the Committee gave regular briefings to the media.

It is in the nature of politics that its practitioners will participate constantly in discussions in the print or electronic media on the

issues of the day. However, even when one makes every allowance for that indisputable fact, one would also expect them to

refrain from commenting on sensitive matters upon which they may subsequently, as members of an Oireachtas committee, find

themselves reaching opinions and conclusions which may seriously affect the reputations of citizens who are not in any way

engaged in the political process. It is unfortunate that, in the case of the present inquiry, some at least of the Committee failed

to observe that obvious precaution. That, however, was not the ground on which, in the present case, the divisional court

reached the conclusion that fair procedures had not been observed by the Committee. That finding was essentially related to

the procedure adopted by the Committee in relation to the cross-examination of witnesses.

Nor, as I understood the submissions advanced on behalf of the respondents, did they contend that the proceedings of the

subcommittee were, in the result, fatally affected by the existence of objective bias on the part of some of its members, i.e.,

circumstances which would give rise to a reasonable apprehension that the respondents would not have a fair hearing from an

impartial body. It is to be observed, in this context, that, however inappropriate the conduct of the members in question may

be judged to be, they did not go so far as to express concluded opinions on the issues of fact which the committee would be

considering. Moreover, while one could understand that the respondents would be concerned by the tone and thrust of some of

the interventions by members of the committee, particularly Deputies Howlin and Shatter, during the course of the hearings, it

has to be pointed out that litigants, and their legal representatives, may also infer, sometimes entirely erroneously, from

interventions made by persons who, unlike the committee, are engaged in quasi judicial hearings - and, one would also have to

add that such interventions are not unknown in the case of judges - that a particular conclusion had already been reached.

For those reasons, the respondents did not rely on the existence of objective bias as such: they did, however, undoubtedly

urge that, in considering whether fair procedures had been adopted by the committee, the divisional court, and this court,

should bear in mind the legitimate concerns of the respondents as to the manner in which at least some of the members of the

committee appeared to be approaching their task. It is to those procedures that I now turn.

Section 13 of the 1997 Act provided for the drawing up of rules and the issuing of guidelines relating to the conduct of

proceedings, and to the procedure generally, of committees of the Oireachtas and required such committees, so far as

reasonably practicable, to conduct their proceedings and perform their functions in accordance with any such rules and

guidelines. Such rules and guidelines were adopted by the appropriate sub-committees in 1999 in relation to the proceedings of

committees,

“whose consideration of a matter may give rise to findings of fact or to conclusions which could adversely affect or

impugn the good name of any person....”

That would clearly apply to the Committee in the present case. Rule 2 provided that

“Committees shall adopt fair and proper procedures and shall conduct their business in accordance with the principles of

natural justice.”

In the present case, the Committee issued an memorandum of the procedures it proposed to adopt. Paragraph 10(d) said

“All interested parties will be invited to indicate to the [Committee], upon receipt of the [list of witnesses], which, if any

of the witnesses it intends to seek to cross-examine, and the basis upon which it claims to be entitled to cross-examine

such witness. Any such witness will be entitled to be told of any persons who may be permitted to cross-examine them

and to be heard as to why such person ought not be so permitted.”

Paragraph 10(f) provided that:

“[The Committee] will indicate the parties who shall be entitled to cross-examine any witness. The [Committee] 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 [Committee].”

Sub-paragraphs (h) and (i) provided as follows:

“ (h) When a witness is called to give evidence before the [Committee], that witness shall first be sworn. With the leave

of the [Committee], the witness may make an initial statement either verbally or in confirmation of a written statement

which shall have been provided to the [Committee] in advance of the hearing.

“ (i) Thereafter the witness shall be subject to questioning by the [Committee], which shall take the form of questions

by the chairman of the [Committee] and such other members of the [Committee] nominated as the chairman may

direct in respect of that witness, then by other members of the [Committee]. Thereafter, and subject to (f) above, the

witness may be cross-examined by, or on behalf of , any of the interested parties in respect of whom leave to cross-

examine such witness has been granted. Thereafter, the chairman of the [Committee] may address further questions

for the purposes of clarification or elucidation of matters not previously fully dealt with. Finally, the person shall have the

right, to make a closing statement orally, and if desired, upon being questioned by that person’s representative.”

In the witness schedule furnished to the witnesses, however, the following appeared:

“Procedure:

Questioning by sub-committee.

Allow cross-examination by parties but subject to issues and timing determined by [Committee]. It is envisaged that this

will take place towards end of hearings by particular parties re specific witnesses. Parties will notify [Committee] of

desire to cross-examine named witnesses as to defined issues. Witnesses to be cross-examined by parties would be told

and given transcript and other documents to be referred to. “

It was also made clear in the schedule of witnesses that the cross-examination would not take place until the ninth day of the

hearings, which day would also have to accommodate the closing submissions of the parties. Day 10 was allocated for further

evidence and “conclusions”.

(a) The Findings of the Divisional Court.

The divisional court found that the deferment in general of all cross-examination to the end of the hearing, which was then to

be conducted only with leave of the committee, was an impermissible dilution and negation of the guarantees of fair procedures

in the conduct of such inquiries identified by this court in In re Haughey. They also said that, even if this inquiry was being

conducted by a tribunal presided over by a judge, the erosion of the re Haughey guarantees would not be tolerated and a

parliamentary committee could not be in any better position.

Submissions of the Parties.

On behalf of the Committee, Mr. Clarke said that the divisional court had paid insufficient regard to the fact that in a number of

cases the total spectrum of the rights identified in In re Haughey would not necessarily be available to a person simply because

he or she is required to give evidence, citing observations by Murphy J in this court in Lawlor -v- Flood [1999] 3 IR 107. Unlike

the situation that had arisen in In re Haughey, where a specific charge in relation to the application of public funds had been

made by a Garda officer against the plaintiff, no charge in this case was made against any member of the Gardaí. He further

submitted that the constitutional right of a person against whom a particular charge was being made to cross-examine the

witnesses whose evidence was said to support that charge did not extend to an immediate right to cross-examine the witness

after he/she had made his or her statement to the committee. The Committee was entitled to adopt a certain flexibility in its

procedures and indeed, if it thought it appropriate, to withhold the right to cross-examine in any case where it was not

necessary to protect the good name or reputation of any person.

On behalf of the respondents, Mr. O’Donnell submitted that the procedures adopted by the Committee in the present case were

entirely at variance with the approach adopted by this court in In re Haughey. It was a truism of advocacy that the deferment

of cross-examination while other witnesses gave evidence afforded significant advantages to the witness concerned. The

impact of the cross-examination was necessarily blunted by its being deferred in that manner and, in addition, the witness could

well derive an advantage from hearing the evidence of other witnesses before his/her turn for cross-examination arrived. Nor

was there any justification for the right which the Committee apparently reserved to itself of denying any cross-examination in

the case of particular witnesses.

Conclusion.

In In re Haughey O’Dalaigh CJ identified certain constitutional rights to fair procedures of persons accused of conduct which

reflected on their character or good name. These included the right to “cross-examine, by counsel, his accuser or accusers....”

In a frequently quoted passage, the learned Chief Justice said

“Article 40.8 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution

guarantees such fairness, and it is the duty of the court to underline that the words of Article 40.8 are not political

shibboleths but provide a positive protection of the citizen of his good name. [The Committee’s procedures] while valid in

respect of witnesses in general, in this instance, would, if applied in the circumstances of this case, violate the rights

guaranteed to Mr. Haughey by the provisions of Article 40.8 of the Constitution.”

In that case, as in this case, the violation had not occurred at the time of the proceedings and it may not occur in this case.

However, in my view, no citizen whose good name may be affected by the proceedings of a committee of this nature and who

is required by legal process to attend and give evidence before it can be constitutionally denied in advance the right to cross-

examine those whose evidence might so affect his rights. The Committee, in this case, have not expressly denied to the

respondents or their counsel the right to cross-examine witnesses, but they have undoubtedly reserved the right to subject it

to drastic constraints which, in my view, are seriously at variance with the nature of the right as identified in re Haughey.

I would accept that it is reasonable for a committee such as this to adopt a certain flexibility in this area and that it may be

reasonable not to afford a right of cross examination to a person whose good name or reputation would not appear to be

affected by any conclusion the committee might reach on a particular issue. It was, however, in my view, not permissible for

the committee to adopt a procedure which meant that cross-examination in respect of crucial matters would be deferred until

after other witnesses had given evidence, a practice which would serious erode the value of cross-examination as it has been

traditionally understood. Moreover, while the committee might have found themselves, in practice, unable to adhere to the

remarkably limited time they were affording counsel for both the next of kin and the respondent to cross-examine and make

submissions, the adoption by them of so apparently rigid a time schedule was, again, inconsistent with the constitutional

protection which should have been afforded in accordance with In Re Haughey.

I would, accordingly, uphold the finding of the divisional court insofar as it found that the right to fair procedures had not been

upheld by the committee.

Conclusion.

In the result, I would allow the appeal and substitute for the order of the High Court an order dismissing the respondents’ claims

for the various reliefs sought by them by way of judicial review, other than the declaration at paragraph 5 of the order. I would

also dismiss the application to vary brought by the respondents.