Supreme Court holds Oireachtas sub-committee inquiry into police shooting ultra vires and quashes evidence orders.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

No. 324, 326 & 333/01

BETWEEN/

MARTIN MAGUIRE, FRANK McHUGH, TOM DOOLEY, MARY MANGAN, DAN MONAGHAN, ANTHONY FOLEY, JAMES QUINN,

ALAN MURRAY, MAEVE GORMAN, JOHN GIBBONS, COLIN WHITE, JACK KILROY, GERRY BARNES, EUGENE DUNNE, JUSTIN

BROWNE, EUGENE BOLAND, JAMES CAMPBELL, MICHAEL JACKSON, GERRY RUSSELL, MICHAEL O’SULLIVAN, AIDAN

McCABE, WILLIAM SISK, RONAN CAREY, TONY RYAN, JOSEPH FINNEGAN, OLIVER FLAHERTY, DESMOND MALLEY, PETER

EARLEY, OLIVER CASSIDY, DAVID MARTIN, MARY ANN O’BOYLE TURLOUGH BUREN, JOHN BOYLE, BLAITHIN MORAN,

SINEAD CONNIFFE AND FRANK REYNOLDS

APPLICANTS/RESPONDENTS

AND

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

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

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

(MEMBERS OF THE JOINT COMMITTEE ON JUSTICE, EQUALITY DEFENCE & WOMEN’S RIGHTS) BEING THE MEMBERS FOR THE

TIME BEING OF THE OIREACHTAS COMMITTEE ON JUSTICE, EQUALITY DEFENCE & WOMEN’S RIGHTS, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

Judgment delivered on the 11th day of April, 2002, by Denham J.

1. Appeal

This is an appeal by the respondents/appellants, hereinafter referred to as the Committee, Alan Shatter, T.D. Ireland and the

Attorney General, against a decision and order of a Divisional Court of the High Court (Morris P., and Carroll and Kelly JJ.)

delivered on the 23rd November, 2001. The applicants/respondents, hereinafter referred to as the Gardaí, served a notice to

vary the said decision of the High Court.

2. Facts

The facts of this case have been set out very fully in the judgment of the Chief Justice. Such short references to facts as

there are in this judgment are included as a necessary part of the analysis and decision.

3. Issues

On this appeal a number of specific issues arose for decision. However, the primary issue in the appeal is as to the power of the

members of the Dáil and Seanad to conduct a public inquiry of the type in issue. On that issue being decided against the appeal

no other issues arise for decision. However, I have added an opinion on s. 3 Committees of the Houses of the Oireachtas

(Compellability, Privileges and Immunities of Witnesses) Act, 1997 ‘consent’; and on the issue of bias. The core issue on this

appeal is the query as to whether the Houses of the Oireachtas, members of the Dáil and/or Seanad, acting through a

committee, have the power to conduct a public inquiry of the type in issue.

4. The power of the members of the Dáil and Seanad to conduct a public inquiry of the type in issue

The High Court declared that:

“. . .the conduct of a public enquiry with the aid of the power of the State and conducted by members of the Oireachtas

under the aegis of the Houses of the Oireachtas with the authority thereof liable to result in finding of facts or

expressions of opinion adverse to the good name, reputation and/or livelihoods of persons not members of such Houses is

ultra vires the powers of such Houses.”

Against that order Ireland, the Attorney General, the Committee and Alan Shatter T.D. have appealed on the ground, inter alia,

that the High Court erred in law in holding that it was ultra vires the powers of the Houses of the Oireachtas to conduct 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 findings of fact or expressions of opinion adverse to

the good name, reputation and/or livelihoods of persons not members of such Houses. Consequently, in issue is the source,

nature and scope of the power of the members of the Oireachtas to conduct such a public inquiry.

5. Nature of Inquiry

The nature of the inquiry in issue was described by the High Court. I summarise their findings. On the 19th/20th day of April,

2000, an incident occurred in Abbeylara, County Longford, during which Mr. John Carthy was shot dead by a garda or gardaí.

Chief Superintendent Culligan submitted a report to the Garda Commissioner on the 28th June, 2000. The Garda Commissioner

reported to the Minister for Justice, Equality and Law Reform. The Minister placed the report before Parliament which referred it

to a Joint Committee of both Houses. The Joint Committee considered it and submitted it to both Houses. The report was

published. Submissions were invited and received by the Joint Committee. On the 8th of March, 2001 the Joint Committee

purported to establish a sub-committee. It is that reference and the work of that sub-committee which is the subject of this

judicial review. The High Court held that it was quite clear that the sub-committee perceived its task as being one requiring it

to enquire into the Abbeylara incident and related matters and to address possible conflicts of fact as in the opinion of the sub-

committee arose directly or indirectly from oral or documentary evidence. Those findings, if considered appropriate, could

include a finding of the unlawful killing of Mr. Carthy by an identifiable garda or gardaí. The gardaí have been compelled to

attend and give evidence. A failure to attend and comply could have the consequences set out in the Committees of the

Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. In these circumstances the sub-

committee saw itself as having an adjudicative function, that it was entitled to make findings on the evidence tendered before

it. All of the applicants are members of the Garda Síochána who have been directed to attend before the sub-committee in

order to give evidence to it. Amongst the applicants are the officers who shot Mr. Carthy. The considerations of this committee

may give rise to findings of fact or to conclusions which could adversely affect or impugn the good name of any person,

including the gardaí. The Committee could conclude that an unlawful killing took place by an identifiable garda or gardaí.

6. Explicit power in the Constitution

The Constitution of Ireland, 1937 gives many explicit powers to the Dáil and Seanad. For example, Article 15.2.1o vests the sole

and exclusive power of making laws for the State in the Oireachtas, Article 15.6 vests the exclusive right to raise and maintain

military or armed forces in the Oireachtas. Article 15.10 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 15.13 provides that:

“The members of each House of the Oireachtas shall, except in case 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.”

Article 15.15 provides that:

“The Oireachtas may make provision by law for the payment of allowances to the members of each House thereof in

respect of their duties as public representatives and for the grant to them of free travelling and such other facilities (if

any) in connection with those duties as the Oireachtas may determine.”

Article 16.2.4o obliges the Oireachtas to revise the constituencies at least once in every 12 years. Article 17.1 provides that

Dáil Éireann shall consider the Estimates of receipts and the Estimates of expenditure of the State for any financial year. Article

29 provides that the Oireachtas shall determine whether an international agreement is part of the domestic law of the State. It

further provides that Dáil Éireann shall approve the terms of an international agreement which involves a charge on public funds.

Article 33 provides that Dáil Éireann shall nominate a Comptroller and Auditor General who will then be appointed by the

President. Article 33.5.1o provides that Dáil Éireann and Seanad Éireann can by resolution call for the removal from office of the

Comptroller and Auditor General for stated misbehaviour or incapacity. Article 35.4.1o provides that Dáil Éireann and Seanad

Éireann can by resolution call for the removal from office of a judge of the Supreme Court or the High Court for stated

misbehaviour or incapacity. Article 45 provides that the principles of social policy set forth in the Article are intended for the

general guidance of the Oireachtas, that the application of those principles in the making of laws shall be the care of the

Oireachtas exclusively and shall not be cognisable by any court under any of the provisions of the Constitution. Thus, the

Constitution gives many express powers to the Dáil and Seanad, to the Houses of the Oireachtas. However, nowhere is explicit

power given to members of the Dáil and/or Seanad or to the Houses of the Oireachtas to conduct a public inquiry of the type in

issue in this case.

7. Implicit Power under the Constitution

There being no explicit grant in the Constitution to members of the Oireachtas of such a power to conduct an inquiry such as is

in issue, the next issue to consider is whether there is an implied power to hold such an inquiry. It was not submitted that such

an implied power exists. No literal interpretation of the words of the Constitution can show power being granted for such a

committee. Nor can such power be inferred from a purposive interpretation of the words of the Constitution. I am satisfied that

the words of the Constitution of Ireland, 1937 do not give rise to an implied power to members of the Dáil and/or Seanad to

conduct a public inquiry of the type in issue in this case.

8. Inherent Power under the Constitution

The Attorney General, the Committee and Alan Shatter T.D. submitted that a committee of members of the Dáil and/or Seanad

have inherent power to conduct an inquiry such as is in issue. The kernel of this case is whether members of the Dáil and/or

Seanad in committee have inherent power to conduct an inquiry of the type in issue.

The word ‘inherent’ is defined in the New Shorter Oxford English Dictionary as:

1. Fixed, situated, or contained in or in something,

2. (a) Existing in something as an essential, permanent or characteristic attribute or quality; forming an element of

something; intrinsic, essential

(b) of a might, power, or function: vested in or attached to a person, office, etc.

I adopt this definition. The question then is whether the power to conduct a public inquiry such as is in issue in this case is

fixed, situated or contained in, or is existing in, members of the Houses as an essential or permanent characteristic, attribute or

quality, or as a right, power or function under the Constitution of Ireland, 1937. Therefore it is necessary to consider whether

the right to hold such an inquiry is an essential element of the Irish representative body, whether it is intrinsic, necessary or

vested as a right or privilege. The Constitution of Ireland, 1937 must be analysed to see whether this inherent power claimed

lies in the basic law.

Reference was made and reliance was placed by counsel on behalf of the Committee and by the Attorney General on the

constitutional law of England and Wales and of the United States of America. They drew analogies between those constitutions

and the Constitution of Ireland.

9. The Parliament of Westminster

The parliament of Westminster and its powers are the product of history. The Mother of Parliaments developed after a struggle

between the Monarchs of England and the Commons, which culminated in a transfer of power from the monarch to the

parliament. The sovereignty of parliament was established. The characteristics of this English parliament were described in Law

of the Constitution by A.V. Dicey, fifth edition, 1897, p. 83-86 as being:

(a) that there is no law that Parliament cannot change; (b) that under the English constitution no marked or clear

distinction exists between laws which are fundamental and constitutional and laws which are not fundamental or

constitutional, and (c) that there does not exist in any part of the British Empire any person or body of persons,

executive, legislative or judicial, which can pronounce void any enactment of Parliament, on any ground, except by being

repealed by Parliament itself. Dicey stated, at p. 86:

“These then are the three traits of parliamentary sovereignty as it exists in England: first, the power of the

legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly,

the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any

judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional.”

A consequence of British history, which gave rise to the sovereignty of parliament, was to invest Parliament with considerable

inherent powers. This has been described in case law, for example, in Gosset v Howard [1847] 116 ER 158. Parke B. delivered

the judgment of the court. The House of Commons having ordered that the plaintiff attend the House he refused to obey. To

compel his attendance at the Bar of the House to be questioned it was ordered and resolved by the House that the plaintiff

should be sent for and brought before the House in the custody of the Serjeant at Arms and that the Speaker should issue his

warrant accordingly. The Speaker issued his warrant which recited, inter alia, that the House of Commons having that day

ordered that the plaintiff should be sent for in the custody of the Serjeant at Arms he required and authorised the Serjeant at

Arms, to take into custody the body of the plaintiff. Parke B. said, at p. 172:

“. . . it cannot be disputed that the House of Commons has by law the particular powers to take into custody which in

the three first pleas it is expressly averred to have exercised; and we have nothing to do with any other. First, that

House, which forms the Great Inquest of the Nation (4 Inst. p.11), has a power to institute inquiries and to order the

attendance of witnesses, and, in case of disobedience (whether it has not even without disobedience, we need not

inquire), bring them in custody to the Bar for the purpose of examination. And, secondly, if there be a charge of contempt

and breach of privilege, and an order for the person charged to attend and answer it, and a wilful disobedience of that

order, the House has undoubtedly the power to cause the person charged to be taken into custody and to be brought to

the Bar to answer the charge: and, further, the House, and that alone, is the proper judge when these powers or either

of them are to be exercised. These are the only questions of privilege involved in this inquiry independently of the form of

the warrant.”

Parke B. went on to draw an analogy between the House of Commons and the Superior Courts in Westminster Hall. He stated,

at p. 174:

“The House of Commons is part of the High Court of Parliament, which is without question not merely a Superior but the

Supreme Court in this country, and higher than the ordinary Courts of Law; Lord Camden in Entick v. Carrington (19 How.

St. Tr. 1047). And, if we give credit to the Courts of Common Law that they will not issue writs of attachment except in

due course and in accordance with the powers which the law gives them, and that notwithstanding the possible abuse of

the liberty of the subject to which this principle may give rise by enabling a Court to imprison for any cause, why should

we not equally give credit to both branches [457] of the High Court of Parliament that they also will duly execute their

powers in obedience to the law from which they derive them, and to which, in common with all other Courts, they are

subject, though this course may also possibly lead to the same consequence, the abuse of the liberty of the subject by

their imprisoning any one at their mere will and pleasure! The possibility of abuse, which is urged as an objection to the

power of either House to issue its mandate in such a form, is no valid argument against its existence. If it were, it would

apply equally to all the Superior Courts, which without doubt have such power; and it would apply also to the other

admitted legal powers of these Courts, which may be abused without adequate remedy. In case of an improper exercise

of the power of attachment by a Court of Law or Equity, or by either branch of the High Court of Parliament, there can be

no appeal: the only remedy is by application to the sense of justice of each Court: and it would be improper to suppose

that any one of them would be more likely to abuse the power, or less likely to grant redress, than another.

That the rule which we have stated does prevail with respect to the proceedings of the High Court of Parliament is proved by

numerous authorities. Mr. Justice Powys, in Regina v. Paty (2 Ld. Ray. 1108), says that ‘the House of Commons is a great Court,

and all things done by them are intended to have been ritè acta, and the matter need not be so specially recited in their

warrants. . . .”

Further, he stated, on p. 175:

“The House had an undoubted right to order the plaintiff into custody, and to have him brought to the Bar, and had also

as much right over its own forms as any other Court has. It must be presumed that this is the right form, being that

which it has chosen to adopt: and, if we inform ourselves by consulting precedents, we know that it is in a form not

improper; for there are many in a form as general with respect to the recital, and some equally so as to the mandatory

part; printed Report of the Committee of Privilege in Howard v. Gosset, 99, 101, 103, 104, 105, 115(a).

For these reasons we think that the warrant was valid. And the difference between the opinion of this Court and that of

the majority of the Queen’s Bench is only this: that they construe the warrant as they would that of a magistrate, we

construe it as a writ from a Superior Court. The authorities relied upon by them relate to the warrants and commitments

of magistrates; they do not apply to the writs and mandates of Superior [460] Courts, still less to those of either branch

of the High Court of Parliament.”

I have quoted this case at some length because the judgment describes the nature and powers of Parliament at Westminster.

The Mother of Parliaments was the Great Inquisitor of the Nation, had inherent powers of compellability of witnesses to the Bar

of the Parliament, and the means of enforcing that power. It is clear from Gossett that the English Exchequer Chamber treated

the House of Commons as a court of the realm, a Superior Court, and applied the law accordingly.

The above description of the British Constitution illustrates the significant difference between the British Constitution and the

Irish Constitution. Consider first Dicey’s analysis. None of the three characteristics Dicey described of the British Constitution

apply to the Irish Constitution. Thus, in contrast to the British Constitution, (a) there are laws that the Oireachtas cannot

change - the Constitution of Ireland; (b) there is a marked and clear distinction between laws which are constitutional (the

Constitution) and laws which are not, and (c) the Supreme Court may pronounce void an enactment of the Oireachtas.

The Dáil is not a court of the Nation. There is no concept of it being the Great Inquisitor of the Nation. Indeed it was not

submitted that the Dáil has the inherent power to take persons into custody and bring them to the Dáil Chamber.

The historical root of the House of Commons is as a Superior Court of the Nation. That root goes back hundreds of years - to

the mists of antiquity. The Dáil is not a Superior Court of Ireland. The Irish Constitution is a modern constitution which includes

principles such as the separation of powers. Consequently, the analogy of the Mother of Parliaments is not apt in analysing the

parliament in Dublin.

10. The Parliament in Washington

The legislative committee system such as is in issue in this case was not expressly established in the Constitution of the United

States of America. It was construed as being an inherent part of the Constitution of the United States by the courts of the

United States of America. In so construing their Constitution it is clear that it was done with a vision that the American

Constitution continued and incorporated concepts from the Mother of Parliaments in Westminster.

The Constitution of the United States of America was written in a different historical context and at a different time to that of

the Irish Free State. Also, there was a desire, as in Canada, to proceed with a constitution with many similarities to that of

Westminster. The Canadian situation was noted by Kingsmill Moore J. in In Re Irish Employers Mutual Insurance Association

Limited [1955] I.R. 176. At pp. 223-224, Kingsmill Moore J. contrasted the Canadian situation in the nineteenth century, where

there was desire evidenced to proceed with a constitution similar in principle to that of the United Kingdom, in contrast to that

of the Irish Free State. He stated:

Very different was the historical background of the Saorstát Éireann Constitution. It arose out of an armed revolt against

British rule and the terms of a Treaty to put 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.”

That the Irish and British constitutions had significant differences was also referred to by Ó’Dálaigh C.J. in Melling v. O

Mathghamhna and the Attorney General [1962] I.R. 1. Further, he referred to the difference also between Ireland and the

United States of America stating, at p. 46:

“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 was different. The framers of the Constitution of Saorstát Éireann

had no particular reason to look with reverence or respect to the British statute role in Ireland as affording them an

example of standards which they would wish to enshrine in their new Constitution. . .”

Not only was the historical context different, and the time different (by centuries), but also the concept of ‘legislative power’

was different. The words ‘legislative power’ is not a precise term. As was stated by Landis: Constitutional Limitations on the

Congressional Power of Investigation (1926) Harv. Law Review Vol. XL 153 at p. 156:

“Legislative power unhappily fails to be either a word of art or a self-defining concept. Like judicial power, it summarizes

the history of an institution of government for any particular period of time. It did so in 1789. When the political thinkers

of that period elected a government and set forth its outlines in a constitution, they were not dealing with new concepts

with which judges of a later date were to pour a meaning dissociated from past history and experience.

Bred to the bone, as they were, with English conceptions and traditions, a phrase such as legislative power, precipitated

centuries of Parliamentary history and decades of colonial practice. The definition also embodied within itself the

evolutionary process inherent in its origin.”

Landis then went on to analyse powers of a legislative committee of inquiry. It is clear that he based his analysis on

Westminster. He stated:

“Its roots lie deep in the British Parliament and only in the light of a knowledge of these origins and subsequent

developments does it become possible to comprehend its limits.”

He considered the powers of the Parliament in Westminster in early times - that is sixteenth, seventeenth and eighteenth

century. He noted, at p. 162:

“The year 1688, however, marking the culmination of the long struggle for the supremacy of Parliament, begins the real

use of Parliamentary committees as necessary parts of the legislative processes. In 1689 a host of committees are to be

found in existence, authorised to investigate in broad reaches the operations of government.”

Having analysed the British roots Landis states at p. 165:

“The privileges and powers of the Commons were naturally assumed to be an incident of the representative assemblies of

the Thirteen Colonies.”

...

At p. 166:

“That this heritage of British Parliamentary traditions and this persistence of institutions developed in aid of the legislative

process were neither alien to the newer soil of America nor inimical to the revolutionary ideals of independence, is further

illustrated by the adoption of committees of inquiry by state legislatures in the early days of their existence.”

The use of legislative committees was described by Clark J. in (his dissenting opinion in) Watkins v. United States (1957) 354

U.S. 178 at p. 219:

“The use of legislative committees to secure information follows the example of the people from whom our legislative

system is derived. The British method has variations from that of the United States but fundamentally serves the same

purpose - the enlightenment of Parliament for the better performance of its duties. There are standing committees to

carry on the routine work, royal commissions to grapple with important social or economic problems, and special tribunals

of inquiry for some alleged offense in government.1 Our Congress has since its beginning used the committee system to

inform itself. It has been estimated that over 600 investigations have been conducted since the First Congress. They are

‘a necessary and appropriate attribute of the power to legislate . . .’ McGrain v. Daugherty, 273 U.S. 135, 175 (1927).”

In this historical context the courts of the United States have given a very broad definition of the concept of legislative power.

But this interpretation is built upon another constitution which had inherent powers of inquiry in the legislature and inherent

powers of compellability of witnesses to the legislature. Thus, the legislative committee of inquiry approach of the U.S.A. is

grounded in its constitution, which has roots in the Westminster model. As already noted the Westminster Constitution is not

similar to the Irish Constitution.

The congressional and Senate committee system as established in Washington has no resonance in the establishment of the

Irish Dáil and Seanad. The historical context was different, the times were different, the political basis for the State was

different. Consequently, the model of the parliament in Washington and its legislative committee system is not persuasive in

interpreting the Irish Constitution.

The Attorney General, the Committee and Alan Shatter T.D., placed emphasis on the concept of legislative power and cited

cases, largely from the United States, to ground the submission that legislative power included the establishment of a

committee such as is in issue.

However, legislative power is not a technical term. It is a term to be interpreted in the context of the Constitution of Ireland.

Whereas all the parliaments considered have power to establish committees relevant to their work the adjudicative nature of

the committee in issue, in relation to a specific incident, with serious consequences to individuals, places it apart from the

mainstream.

It is noteworthy that such a committee was not explicitly or implicitly written into the Irish Constitution. Also, that it was not a

system utilised by the legislature previously. Also, that previously other tools were used, e.g. tribunals of inquiry under the

Tribunals of Inquiry Act, 1921 as amended. Also, that it was only in recent times, 1997, that the Committees of the Houses of

the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 was passed into law. These latter matters

contrast to the situation in Westminster and Washington.

11. The Parliament in Dublin

The Irish Constitution, both in 1922 and 1937, had the benefit of modern constitutional concepts and people with a vision of a

new Irish State. There is no reason to assume that the privileges and powers of the House of Commons would naturally be an

incident of the representative assembly in Ireland. Indeed there is evidence to the contrary.

The issue of parliamentary committees arose during the creation of the State of Ireland. Efforts to establish a parliamentary

committee system of government in Ireland between 1919-1922 were unsuccessful. Counsel referred the court to A Note on the

Dáil Constitution, 1919, Brian Farrell, Irish Jurist [1969] 127. At p. 134 he stated:

“A year later on 17 September, 1920 the demand for an effective committee system was again raised in a motion by J.J.

Walsh designed to bring this Constitution to harmony with the American idea of Committees elected by the whole House

and clothed with similar powers.

The course of the debate was instructive. J.J. Walsh and Seán MacEntee (who seconded the motion) arguing that the

advisory committees had no standing ‘as it rested with the responsible Minister to accept or reject their findings’ and that

‘under present circumstances there could be no real opposition to the Ministry.’

For the Government, the acting President, Arthur Griffith pointed out that the motion meant a complete revolution of the

Constitution of Dáil Éireann. It meant taking away the responsibility of the Ministers and placing it in the hands of

Committees and the sentiments were echoed by Eoin MacNeill who said it was a very revolutionary proposal and he did

not believe that the country would approve of it.

Whatever about the country, certainly the Dáil was not ready for any experiments in the field of parliamentary

institutions. MacNeill’s amendment that the motion be postponed for twelve months was carried on a division by 33 votes

to 1.”

Counsel also referred the court to B. Farrell, The Drafting of the Irish Constitution (1970) I.R. JUR 115-140: 344-356, (1971)

I.R. JUR 112-135: 345-359.

It is incontrovertible that the committee established to draw up an Irish constitution looked far wider than the British model.

Hugh Kennedy, a member of the committee and later the first Chief Justice of the Irish Free State (1924-1932), made this clear.

In his foreword to Leo Kohn, The Constitution of the Irish Free State, Kennedy C.J. stated, of Leo Kohn:

“. . . He was already familiar with the English Constitution and with the framework of the British Commonwealth of Nations,

and he understood the origin and common source of the constitutions of the Dominions which had been built on British

colonial foundations. The Irish constitutional instrument was something different. He saw that it derived from another line

of thought. . . .”

Here is the key to the issue. The fact that the Irish Constitution was something different from that of England and the

Dominions. The fact that it derived from “another line of thought”.

In the Articles of the Constitution of the Irish Free State which established and described the parliament no reference was

made to parliamentary committees of inquiry. Nor is there any reference to parliamentary committees of inquiry by the Dáil

and/or Seanad established under the Constitution of Ireland, 1937. Therefore it is a matter of construing and interpreting the

Constitution of Ireland, 1937 to determine whether such committees are an inherent part of the Irish constitutional system of

government.

The Constitution of Ireland, 1937 did not establish a structure of government, or a system of parliament, modelled on

Westminster. Indeed differences which existed under the Constitution of the Irish Free State, 1922 were expanded in the

Constitution of Ireland, 1937. For example, the concept of parliamentary sovereignty was not established. The Superior Courts

were given the power of judicial review. The power of the people was given to three great organs of State (the legislature, the

executive and the judiciary) and divided between them with checks and balances established on the powers so distributed.

Construing the Constitution to determine whether such an inherent power exists necessarily involves analysis to see if such a

power would be consistent with the Constitution as a whole.

Emphasis was placed by counsel for the Committee and by the Attorney General on cases of the United States. For, as has

been referred to previously in this judgment, the Supreme Court of the United States of America was requested to determine

whether there was an inherent power under the Constitution of the United States of America for their members of parliament,

Congress and the Senate, to hold Committees of Inquiry and the extent of their powers. However, there are significant

differences between Irish constitutional law and that of the United States of America. In Ireland there are no inherent

compellability powers in the Houses of the Oireachtas under the Constitution. The powers that exist were established by

statute. There has not been a history of such inquiries by the members of the Houses of Parliament. These factors reflect the

true nature of the Houses of Parliament in Ireland and are in contrast to parliaments in Westminster and Washington.

Committees are a part of legislative government. However, they have not until now included the type of inquiry in issue, the

adjudicative inquiry of fact, of a specific incident, involving individual culpability, of named or identifiable individuals, in relation

to an unlawful killing, such as is issue in this case. Since 1921 the type of inquiry in issue has been undertaken usually by a

tribunal established under the Tribunals of Inquiry Act, 1921, as amended. This reflects the nature of the legislature established

in Ireland and the prior history of committees of inquiry over the previous few hundred years. It leaves to the parliament the

power to initiate inquiries but the machinery which has been established envisages the inquiry being held outside parliament. In

Goodman International v. Hamilton [1992] I.R. 542 at pp. 597-598 Hederman J. described the situation:

“Before dealing with the arguments adduced under this heading, it is necessary to say something about the nature of

tribunals that are established under the Tribunals of Inquiry (Evidence) Acts 1921 and 1979.

While Article 15, s. 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. Many inquiries have in the past emanated from something said in Parliament.

By Article 15, s. 12 of the Constitution absolute privilege attaches to whatever is said in the Houses of the Oireachtas.

In the course of his submissions, counsel for the applicants put forward the possibility that there could be established a tribunal

comprised exclusively of Dáil deputies. It was the failure of such a select committee of Parliament in regard to the Marconi

Scandal contrasted with the success of the Parnell Commission which had been established by the Special Commission Act,

1888, that led to the passing of the Act of 1921. The Royal Commission on Tribunals of Inquiry, 1966 (under the chairmanship of

Lord Justice Salmon, Cmnd. 3121) sets out the historical background to the legislation and advocates the continuation of such

tribunals as being an essential concomitant to the efficient working of Parliament in contrast to inquiries or tribunals that do not

have the necessary powers to compel witnesses and so forth.

That report, also, however, referred to the exceptional inquisitorial powers conferred upon such a tribunal and that it

necessarily exposes the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain

private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For

these reasons the Salmon Commission (at para. 27) was strongly of the opinion that the inquisitorial machinery set up under the

Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital

public importance concerning which there was something in the nature of a nationwide crisis of confidence.

In the United States of America the Supreme Court has held that the power of the Congress to conduct investigations ‘is

inherent in the legislative process’: Watkins v. United States (1956) 354 U.S. 178 at 187.

Professor Sir William Wade in his book Administrative Law (6th ed.) (1988) at p. 1001, categorises tribunals under the 1921

legislation as having no particular connection with administrative powers or with administrative misdeeds by ministers, civil

servants, local authorities or the police, they are not confined to such matters. ‘An inquiry of this kind is a procedure of last

resort, to be used when nothing else will serve to allay pubic disquiet, usually based on sensational allegations, rumours, or

disasters.’ I consider that the Irish experience has been similar.

Finally, in this regard, it is pertinent to note that this Court has pointed out that a tribunal established under the Act of 1921 is

not vested with a power of trial ‘although a provision to such effect under the British Constitution (the cardinal principle of

which is the supremacy of Parliament) would be wholly unexceptionable, however unusual’: see In re Haughey [1971] I.R. 217

at 251. In summary, therefore, there is a strong historical basis for saying that a tribunal, such as the one in question here, is

appropriate and, indeed thoroughly necessary for the proper functioning of the legislative and executive organs of the State.”

It has not been argued that the inherent power of the Dáil and Seanad enable them to compel non-members, witnesses, to

attend and to take steps accordingly. The powers of compelling the attendance of witnesses described in Gossett have not

been assumed in Ireland. Such powers exist by Statute law. This is of fundamental importance in analysing the powers of the

Dáil and Seanad. It highlights the difference between the parliament at Westminster and that in Dublin. The parliament in

Westminster has these powers inherently - from its roots as a court of that nation. The root of the Dáil and Seanad is entirely

different.

There are a number of factors of importance in this analysis. They include the following:

(a) There is no explicit power given to the Houses of Parliament in the Constitution of Ireland, 1937 to hold an inquiry of the

type sought; (b) There is no such implicit power so given; (c) There is no historical context in which parliament in Ireland is a

copycat parliament of Westminster; (d) There are no inherent powers such as exist in the Mother of Parliaments and the

parliament in Washington; (e) There are very significant rights under the Constitution of Ireland which are protected by the

Constitution and the courts, including the right to fair procedures and the right to state protection and vindication of a person’s

good name.

12. Protect and Vindicate a Good Name

The Constitution of Ireland gives explicit protection to a person’s good name. Article 40.3.2o states:

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the . . . good name . . . of every citizen.”

This right of a citizen and duty of the State was not a feature of the Constitution in England and Wales in early times nor is it

an Article of the Constitution of the United States of America. It is an illustration of “another line of thought”, of “something

different”.

Taken with other fundamental rights protected under the Constitution it illustrates the human rights foundation in this basic law.

The rights protected include not only good name but also rights of due process, fair procedures. The Constitution of Ireland,

1937 is a modern constitution. In 1937 it had a prescient vision of many matters which would be relevant in constitutional law in

the latter part of the 20th century. While it was enacted prior to the International Declaration of Human Rights and the

European Convention of Human Rights it had already placed human rights as a cornerstone of the Irish State.

As already indicated the Constitution specifically incorporates the right to good name. In neither the United States of America

nor the United Kingdom was such a right expressly guaranteed. While this is not the pivotal point of my judgment it is a factor

of importance in considering the constitutional machinery for an adjudicative inquiry of the type in issue.

13. Implications from Statutes

It was submitted that a number of statutory provisions necessarily implied the existence of an inherent power to conduct the

type of inquiry proposed. I have had the opportunity of reading the judgments about to be delivered by Hardiman J. and

Geoghegan J. and I am in agreement with their analysis of this submission. I am satisfied that no inherent power exists, by

reason of necessary implication from statutes, to conduct the type of inquiry in issue.

14. Judicial Activism

Judges have a duty to uphold the Constitution: Article 34.5.1o. In addition the Superior Courts may judicially review legislation

to determine its constitutionality. These are grave duties and responsibilities of judges.

In exercising these duties and responsibilities it is often necessary to balance and harmonise conflicting constitutional rights.

This requires careful judicial judgment. It may require the exercise of judicial discretion to achieve a just and proportionate

determination. When a court is protecting constitutional rights it has specific duties and responsibilities under the Constitution.

These duties and responsibilities are exercised by a court using power which has come from the people and which has been

designated by the Constitution to be exercised by the courts. This duty and responsibility are to be carefully guarded by a

court for the protection of the Constitution and constitutional rights.

In construing the Constitution and protecting rights the courts do not have a role in legislating or writing a constitution. In this

case the Attorney General, Counsel for the committee, and Mr. Shatter T.D. are asking this court to make a decision which

would involve considerable judicial activism. They request that the court construe the Constitution so as to find an inherent

power for the Houses of the Oireachtas to establish a committee system of legislative government to empower an inquiry of the

type in issue. The court is requested to describe and proscribe the boundaries of this alleged inherent power. This is a request

to make law. Without shirking the duty and responsibility of upholding the Constitution and the laws it is necessary to ensure

that such a decision does not exceed the jurisdiction of the court. It is my view that it would not be constitutional to make

such a judgment. Such a decision should be made elsewhere, either by the legislature or by the people. In my opinion to decide

that a power as submitted for the Committee is inherent in the Constitution would be either to draft a constitutional amendment

or to legislate. To establish such a legislative committee of inquiry is a matter for the people in a referendum or the legislature in

legislation, and is not a matter for the court. It is a matter neither explicitly nor implicitly in the Constitution. It is a power

contrary to the roots laid down in 1922 and grown in 1937. It is not an inherent power in the Constitution of Ireland, 1937.

Whether such a power in the Houses of the Oireachtas is a good thing or a bad thing is a policy issue to be determined by the

legislature or by the people. Whether the people’s representatives in the national legislature should undertake inquiries such as

in issue is a policy matter to be determined in another forum. It is a policy matter to be decided by the representatives of the

people in a legal frame. It is a policy matter which has to be decided in light of the Constitution of Ireland.

15. Rule of Law

A cornerstone of the Irish legal system is the Rule of Law. This legal principle has three components, being: (a) everyone is

subject to the law, (b) the law must be public and precise, and, (c) the law must be enforced by some independent body,

principally the court system: D.G. Morgan, Constitutional Law of Ireland (Round Hall Press, 1990). All three components are

important, the second is of particular relevance to the issues in this case. Thus, the law must be public and precise. A reason

for this component of the Rule of Law is that the law should be ascertainable and predictable. That is clearly not the situation

in this case.

The submissions in this case relate to this core principle. Counsel on behalf of the Gardaí argued that the Divisional Court

accepted:

1. That some legal authority was required before the Houses could establish an inquiry. They noted that this was accepted by

all parties to the proceedings.

2. That there was no legislation which conferred this power. This was also accepted by all parties.

3. That there was no express constitutional provision conferring such power. This is clearly the case.

4. That there was no power to establish such inquiries in the Houses.

Counsel pointed out that it was only in relation to the last issue that the parties disagreed. As counsel for the gardaí submitted:

“This aspect of the proceedings therefore stands or falls on the issue of whether without the requirement for clear

legislative authority, both Houses may establish inquiries of the nature in issue here, or whether an Act of the Oireachtas

is needed before this can be done. The issue here was, therefore, beguilingly simple.”

Whilst the issue is simple it is fundamental and goes to the root of the nature of our constitutional government. The Rule of Law

applies in Ireland as a principle fundamental to constitutional justice. It requires public and precise law. There is no public law -

either in the Constitution or legislation - enabling such an inquiry as is in issue in this case. Consequently, the issue as to

whether such law is precise does not even arise for consideration. It would be in breach of the Rule of Law to allow the appeal.

To allow the appeal would be to legislate, to have the courts write the law on such committees and their boundaries. That role

is for the Oireachtas - to legislate in accordance with the Constitution.

16. Statutory Inquiry

There is not an explicit, implicit or inherent power for the members of the Oireachtas to establish committees of inquiry of the

type in issue. However, the legislature has authority in conjunction with the Minister, pursuant to the Tribunals of Inquiries Act,

1921, as amended, to initiate a tribunal of inquiry. The choice is a matter for the legislature. This type of inquiry was commonly

used in the 1920s when the Constitution was emerging. It was the vehicle of choice for such inquiries. It remains available and

in use.

17. European Union

The powers of the Oireachtas in the State are evolving. In 1937 the Oireachtas had the sole and exclusive power of making

laws for the State. No other legislative authority had powers to make laws for the State: Article 15.2 Constitution of Ireland.

However, that is no longer the situation. The decision that Ireland join the European Union has had a profound effect, not least

on the legislature. Many laws for Ireland today come from the European Union through Regulations and Directives. The changing

nature of legislation has given rise to issues of a democratic deficit: Meagher v. Minister for Agriculture [1994] I.R. 329, at pp.

366-368 and Maher v. Minister for Agriculture [2001] 2 I.L.R.M. 481. This query of a democratic deficit in relation to legislative

principles and policies is a kernel issue in legislative governance of Ireland. It is an issue relating to the making of laws for the

State and consequently at the core of the legislature’s branch of power. It may require development of committees within the

Houses of the Oireachtas. However, that issue contrasts sharply with the type of adjudicative inquiry at issue in this case.

18. Decision - “. . . something different . . . another line of thought . . . ”

There is no express power in the Constitution of Ireland enabling a Committee of members of the Dáil and/or Seanad as members

of the Houses of the Oireachtas hold an inquiry such as is in issue. There is no implied power in the Constitution of Ireland

permitting such an inquiry on such issues. The Attorney General, the Committee and Alan Shatter T.D. have submitted that the

members of the Dáil and/or Seanad, that the Houses of the Oireachtas, have inherent power to hold such an inquiry. Analogies

were drawn with the parliament at Westminster. However, that analogy must fail as the concept relied upon - Westminster

Parliament with its root as the Grand Inquisitor of the Nation - a court - is contrary to the Constitution established in Ireland.

Reliance was placed also on the analogy of the representative body in the United States of America, and that system of

legislative committees. However, it is clear from precedent and academic analysis that the committee system in Washington

was influenced by a vision of continuing in America a Westminster style of parliament. Consequently, just as the parliament at

Westminster is not a model for the Irish parliament, so too does the Washington model fail to be persuasive.

In the final analysis it is a matter of construing the Constitution of Ireland: the document by which the people gave powers to a

variety of institutions. The court is asked to find inherent power in the Constitution for the members of the Dáil and/or Seanad,

the Houses of the Oireachtas, to hold inquiries of the type in issue. This is a request for a considerable degree of judicial

activism. I am satisfied that such an approach and interpretation is contrary to the fundamental concepts of the Irish

Constitution, there being no evidence or context for such a power, indeed the words of the Constitution, and its background,

are quite to the contrary.

As the first Chief Justice of Ireland, Kennedy C.J. wrote in the foreword to Leo Kohn, The Constitution of the Irish Free State:

“. . . The Irish constitutional instrument was something different . . . it derived from another line of thought . . .”

The Constitution of the Irish Free State, 1922 was a step on a different road, which journey was continued by the Constitution

of Ireland, 1937. These Irish constitutional instruments were, in many respects, different from those of England and other

colonies and dominions. Another line of thought developed in Ireland. While retaining the Common Law System, Ireland wished to

establish an Irish legal order. There was no reality in returning to the ancient Irish Brehon Law. A modern constitution was

required. Thus in 1937 principles and theories such as the principle of the separation of powers, fundamental rights, including

the right to a good name and fair procedures, were continued, and expanded, powers were given to the executive and the

legislature and the courts, which were given the duty of guarding the Constitution. A new constitutional basis for the State was

laid. The constitutional government established was not a mirror image of that in London or Washington.

These steps of 1922 and 1937 were taken on a journey on a road then less travelled by other countries with a common law

legal system. Ireland took the road

“less travelled by,

And that has made all the difference.”

(Robert Frost)

Ireland took the road less travelled in 1937. It was a decision in advance of its time. It presaged a move toward modern

constitutions. The Constitution of Ireland, 1937 was prescient of European Constitutions and international instruments to follow.

In 1937 the Constitution of Ireland protected fundamental rights, fair procedures and gave to the Supreme Court a role as

guardian of the Constitution. A decade later, after World War II, the United Nations Charter and the Universal Declaration of

Human Rights were brought into being and in Europe the European Convention on Human Rights followed. Over the succeeding

decades of the twentieth century, courts, through judicial review, have sought to protect human rights. Developments in

Europe have heralded changes in England and Wales also. In the home of the Mother of Parliaments the Human Rights Act, 1998

has been passed. And, while the courts of England and Wales were not given the full judicial review role as recognised in the

United States of America and established in Ireland in 1937, the courts of England and Wales have been given power to declare

Acts of Parliament incompatible with the convention: s. 4(1)(2) of the Human Rights Act, 1998. While the Constitution of

England and Wales is changing, powers still reflect the historical roots - for example, the House of Lords retains legislative and

judicial power. However, the protection of human rights and the role of the courts have become more similar to that in Ireland

under the Constitution of Ireland. The fundamental principles of the Constitution outlined by Dicey in the nineteenth century are

changing in the twenty first century, in the England and Wales of the European Union and the Human Rights Act, 1998.

Under the Constitution of Ireland, 1937 power was given to the three great organs of State. Legislative power was given to the

Oireachtas. It has neither explicit, implicit nor inherent powers to conduct the type of inquiry in issue. However, it could initiate

a tribunal of inquiry under the Tribunals of Inquiry Act, 1921 as amended. The issue of specific future legislation establishing a

statutory inquiry or a committee of inquiry is not before this court. As the law stands the Houses of the Oireachtas do not have

inherent power to hold the type of adjudicative inquiry in issue.

Members of the Oireachtas may function by way of committees. Such committees may differ in nature. The work of a

committee may go to the essence of the role of the legislature in relation to legislation. In such work there may be references

to individuals. Such references may be a necessary part of the work of the committee. A constitutional balance has to be

obtained and fair procedures applied. However, if it is wished to hold an adjudicative inquiry of the type in issue in this case,

there should be a legal basis for such an inquiry. None exists under the Constitution or the law.

19. Consent Under s. 3 Committees of the Houses of the Oireachtas

(Compellability, Privileges and Immunities of Witnesses) Act, 1997.

While this issue does not now require to be decided, there was considerable legal argument as to the consent necessary for the

purpose of issuing directions under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of

Witnesses) Act, 1997 and it might be useful to give an opinion. The said Act made provision regarding compellability, privileges

and immunities of witnesses before committees of the Houses of the Oireactas. Section 3 of the Act provided power to

committees to obtain evidence. The consent required is described in s. 3(9). Section 3(9) states:

“(9) (a) A consent of the appropriate subcommittee under subsection (1)

(‘a consent’) shall be in writing and the document containing it shall be signed by the chairman of the subcommittee

or by another member of the subcommittee duly authorised in that behalf by such chairman.

(b) A consent shall relate to a specified committee and specified functions of that committee and may relate, as may be

specified in the consent, to one or more specified directions or classes of directions, or all directions, in relation to a

specified person or matter or persons or matters generally and shall be subject to such restrictions, limitations or other

conditions (if any) as may be specified in the consent.

(c) A document -

(i) produced at a meeting of a committee by the chairman of the committee or another member of the committee

who is acting as chairman thereof, or

(ii) produced in a court by the chairman of a committee or another member of the committee duly authorised in that

behalf by such chairman,

and purporting to comply with paragraph (a) and to contain a consent relating to that committee shall, unless the

contrary is shown be evidence -

(I) of the consent and that it relates to that committee, to the functions of that committee specified in the

consent and to the directions or classes of directions so specified and that those directions or classes of

directions relate to the persons or matters so specified, and

(II) of any restrictions, limitations or other conditions S.3 so specified to which the consent is subject.”

The words are plain. They require that a consent of the appropriate subcommittee shall be in writing. The words are clear. It is

a mandatory requirement. The consent is required to be in writing. There is no provision for an oral consent. Further, s. 3(9) is

precise in requiring that the document containing the consent shall be signed by the chairman of the subcommittee or by

another member of the subcommittee duly authorised in that behalf by such chairman. Thus, not only is the consent to be in

writing but it is required to be in a document signed by a specified person.

S.9(c) provides for a presumption that a document produced, inter alia in a court, purporting to comply with paragraph 3(9)(a)

and to contain a consent shall, unless the contrary is shown, be evidence of the consent. Once again the section is affirming

that the consent is in writing in a specific document and as such is entitled to the presumption of authenticity.

I am satisfied that a valid consent under this section must be in writing in a document as specified. An oral consent, or a

consent not yet in document form as specified, is not a consent for the purposes of s.3(9) of the Act.

20. Bias

While this issue also does not require to be decided, there was considerable legal argument on the matter of bias in relation to

such a committee and it might be useful to express an opinion. The issue of subjective and objective bias has been the subject

of previous decisions: O’Neill v Beaumont Hospital Board [1990] I.L.R.M. 419; Dublin Wellwoman Centre Ltd. v Ireland [1995] 1

I.L.R.M. 408; Bula Limited and Ors. v Tara Mines Ltd. Unreported, Supreme Court, 3rd July, 2000; Webb v The Queen (1994)

181 C.L.R. 41.

In this case the inquiry was not the administration of justice but an inquiry of the nature described. However, fair procedures

are required. While there was some discussion of ‘structural’ bias I am satisfied that the issue of bias relates to two aspects -

subjective and objective. Subjective bias means actual bias and clearly no committee member who has subjective bias may

participate in such an inquiry. Objective bias is a matter which also is a component of fair procedures. Thus a committee

member in such an inquiry as is in issue may not sit if in all the circumstances a reasonable person would have a reasonable

apprehension of bias, an apprehension that the committee member might not bring an impartial and unprejudiced mind to the

hearing. This would refer to considerations relating to matters prior to the establishment of the committee and during the

hearings of the committee. Thus, indications of a view being held by a committee member whilst the hearing is proceeding would

be contrary to the concept of fairness.

21. Conclusion

The Constitution gives no explicit power to the members of the Houses of the Oireachtas to hold an inquiry such as is in issue in

this case. Nor does the Constitution imply such a power. Further, the members of the Houses of the Oireachtas do not have

inherent power to hold such an inquiry. I would not allow the appeal. However, I consider that the form of declaration granted

by the Divisional Court is too wide. The relief should relate only to the inquiry in issue. I would propose the following two orders.

I would grant a declaration that the conducting by the Joint Oireachtas Sub-Committee of an inquiry into the fatal shooting at

Abbeylara on the 20th day of April, 2000 capable of leading to adverse findings of fact and conclusions (including a finding of

unlawful killing) as to the personal culpability of an individual not a member of the Oireachtas so as to impugn his or her good

name is ultra vires in that the holding of such an inquiry is not within the inherent powers of the Houses of the Oireachtas.

Also, I would grant an Order of Certiorari quashing the directions to the applicants requiring them to attend before the

Abbeylara sub-committee there to give evidence and to produce documents in their possession. In view of these proposed

orders it is unnecessary to make any further order including any order in relation to the notice to vary.