Supreme Court allows appeal on Oireachtas subcommittee inquiry powers and consent validity under 1997 Act.

THE SUPREME COURT

JUDICIAL REVIEW

Keane CJ

Denham J

Murphy J

Murray J

McGuinness J

Hardiman J

Geoghegan J

324, 326, 333, 334/01

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 O'MALLEY,

PETER EARLEY, OLIVER CASSIDY, DAVID MARTIN, MARY ANN O'BOYLE, TURLOUGH BUREN, JOHN BOYLE, BLAITHIN

MORAN, SÍNEAD CONNIFFE AND FRANK REYNOLDS

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 AND WOMEN'S RIGHTS BEING THE MEMBERS FOR THE TIME BEING OF THE OIREACHTAS

JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS, IRELAND AND THE ATTORNEY GENERAL

Appellants

Judgment of Mr Justice Francis D Murphy delivered the 11th day of April, 2002

As the complex history of this matter has been clearly set out in the judgment of the Chief Justice no purpose would be served

by my engaging in the same task. Nor will it be necessary for me to analyse the numerous decisions to which the Chief Justice

and my other colleagues have referred in the course of their judgments. As far as possible I will confine my judgment to an

identification of what appear to be the essential issues raised in this appeal and to express my conclusions thereon.

In my opinion the declaration sought by the respondents and granted by the divisional court was ambiguous. The ambiguity

arises, in part at any rate, from the varying nature of different types of inquiry and the characteristics or powers which they

possess. However, inquiries, whether conducted by a committee of the Oireachtas or by a tribunal appointed by it, have or may

have three features, namely, first, the gathering of information from individuals, secondly, the power to compel persons to

attend at and give evidence to the inquiry and, thirdly, the right or duty to “make findings”.

The respondents argued, and the divisional court accepted, that subcommittees of the Oireachtas did not have an inherent or

implicit power to conduct inquiries exercising those three powers.

In my view that issue should be approached by reference to duties and powers expressly or impliedly conferred upon the

Oireachtas by the Constitution or positive law. An historical approach to the problem provides only very limited assistance.

Whatever the historical background to the Constitution, or the terms of any international agreement which preceded it,

Bunreacht na hÉireann explicitly recognises that the Constitution was adopted, enacted and given to the people of Ireland by

the people of Ireland. There is no question of the Oireachtas or any other organ of State acquiring rights, powers or duties by

assignment or devolution from the parliament in Westminster. All sovereign powers vested in the people of Ireland and the

extent to which they conferred those powers or any part of them on any organ of State can be determined only by identifying

the powers so expressly or impliedly conferred.

In pursuance of the power most obviously granted to it (by Article 15(2) of the Constitution) the Oireachtas enacted the

Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997. It is beyond

debate that a committee appointed by either house of the Oireachtas, or jointly by both houses of the Oireachtas, or a

subcommittee of such a committee, may compel the attendance before it of any person required by the committee to give

evidence and to produce any document in his or her possession subject to certain consents being obtained. The

constitutionality of the Act of 1997 has not been challenged and, indeed, Counsel on behalf of the respondent gardaí accepted

that there was no basis on which such a challenge might be made.

It is of course agreed that elected representatives should take every opportunity to inform and advise themselves on all

matters relevant to their wide-ranging duties as law makers in addition to informing themselves as to the needs, interests and

concerns of their constituents. The information required by TD’s will range from the international, technical and detailed to the

parochial, popular (or unpopular) and general. The great Library of Congress in Washington is a monument to the information

required by diligent legislators.

Thus the right of members of the Oireachtas, whether individually or collectively, to obtain information is implicit in the

Constitution and the right, in certain circumstances, to compel members of the public to provide such information under oath is

expressly conferred by statute. The real concern, as I see it, relates to the power or duty of a subcommittee of the Oireachtas

“to make a finding of fact”.

In the oft quoted words of O’Dálaigh CJ (taken from the State (Quinn) .v. Ryan [1965] IR 70 at 122):-

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights

should be set at nought or circumvented. The intention was that rights of substance were being assured to the

individual and the courts were the custodians of these rights. As an necessary corollary it follows that no one can with

impunity set these rights at nought or circumvent them, and that the courts’ powers in this regard are as ample as the

defence of the constitution requires.”

The Oireachtas must have as ample powers to perform its functions as the courts have to fulfil theirs. However extensive the

powers of either organ may be they are necessarily subject to this qualification: they cannot trespass on the monopoly

constitutionally given to the other. The Oireachtas cannot usurp the functions of the Courts (see Buckley & Ors (Sinn Féin) .v.

Attorney General & Anor [1950] IR 67). Nor can any other person or body exercise the judicial function which the Constitution

exclusively vested in the Judiciary (see In re O’Farrell & Anor [1960] IR 239). Similarly the courts have no jurisdiction to

substitute for impugned legislation a form of enactment which it considers desirable or to indicate to the Oireachtas the

appropriate form of enactment which should be substituted for the condemned legislation (see Somjee .v. The Minister for

Justice & the Attorney General [1981] ILRM 324 and MacMathúna .v. Ireland & Anor [1995] 1 IR 484. The legislature cannot

confer on itself or any other person or body a power or duty, in whatever terms expressed, which would amount to the exercise

of the judicial function. On the other hand confusion may arise from the fact that the legislature can confer a power, and

multiplicity of persons and bodies may assume, functions which are required to be exercised in a judicial manner. What

constitutes the administration of justice so as to preclude its exercise by anyone other than the courts established under the

Constitution does not admit of a test which can be easily and confidently applied (see Kennedy .v. Hearne [1988] IR 481).

However, an essential feature of a judicial adjudication is that the decision, view or opinion of the adjudicator is determinative

of an issue arising in the matter. The opinions and views of other persons and bodies may indeed have, whether directly or

indirectly, far-reaching effects because of the standing of the person or body by whom they are given or made but they are

merely opinions or views: not determinations. The reports issued or to be issued by the numerous tribunals set up under the

1921 Act though generally, if not invariably, presided over by a judge of the Superior Courts do not decide the issues submitted

to them for consideration and the ultimate report, however distinguished its author, and however comprehensive the research

undertaken by him, necessarily leaves it open to the parties, or any person who may be involved, to have their rights in respect

of that issue determined by the Courts established under the Constitution. To that extent it is properly said that the reports

and decisions of the most august, but non judicial bodies, are “legally sterile”. If, for example, the Committee of Public Accounts

continued with the inquiry which, on the 1st of December 1970, Dáil Éireann had directed it to undertake, and upheld the

contention of Chief Superintendent John P Fleming to the effect that Mr Padraig Haughey was guilty of a criminal offence, that

conclusion would not have enable the committee, or indeed any court of law, to impose any penalty by reference to that finding

or conclusion. On the other hand, as the case of In re Haughey [1971] IR 217 so clearly demonstrates, an investigation by a

non judicial body through incapable of imposing any penalty or sanction, can inflict very serious damage to the character and

reputation of witnesses called before it. To avoid that injustice, and vindicate the constitutional right of the citizen to his good

name, the Haughey case and numerous cases decided thereafter, have set out the procedures to which “an accused” witness

is entitled to vindicate his constitutional rights.

There is then a level of decision making or fact-finding which, though non determinative, has the capacity to be very damaging

indeed. It is that factor which requires in this (and other) jurisdictions that such conclusions be based upon material in respect

of which the person exposed to injury has an opportunity to comment. This was recognised clearly in the UK in In re Pergamon

Press Ltd [1971] Ch 388 and, indeed, in In re Haughey (above) itself. A relatively common example of the problem, and the

steps required to overcome it, is to be found in the State (Shannon Atlantic Fisheries Ltd) .v. McPolin & Ors [1976] IR 93. In

that case the defendant had been appointed under the Merchant Shipping Act, 1894, to conduct an inquiry into the

circumstances in which a fishing vessel had been wrecked off the Galway coast and report his findings to the minister

concerned. In his report the inspector stated that the vessel concerned was sent to sea in an unsafe condition by reason of

under-manning. The owners of the vessel protested against the conclusions contained in the preliminary inquiry on the grounds

that they had not been heard in relation thereto. The report was set aside on the grounds that the inquiry was not conducted

in accordance with the principles of natural justice notwithstanding the fact that the report itself had no adverse consequences

for the owners of the vessel.

There is an intermediate situation in which the report of an inquiry may have an operative effect over and above the aspersions

cast upon the character of any person identified in the course of the inquiry and yet fall short of a judicial determination.

Inquiries by employers as to the conduct of their employees are an example of where this problem arises and how it may be

resolved. In Glover .v. BLN Ltd [1973] IR 388 the board of directors of the defendant company were required to conduct an

inquiry to ascertain whether the plaintiff/employee was in breach of his contract with them. An adverse finding arrived at in

accordance with the requirements of natural justice would result in the dismissal of a plaintiff. Again, and more dramatically, in

O’Neill .v. Beaumont Hospital Board [1990] ILRM 419 the board of Beaumont hospital, which was composed of fifteen part-time

members appointed by the Minister for Health, had to inquire into the performance of his professional duties by a consultant

paediatric neurosurgeon during the course of his probationary employment so as to enable the Board to certify whether his

services had, or had not been, satisfactory. Only a favourable decision would have resulted in the permanent employment of

the plaintiff by the defendants. It was the nature of the contract between the plaintiff and the defendants which permitted and

required the Board to carry out that inquiry and reach its decision - in accordance with the requirements of natural justice - on

the matter in issue. As the committee was composed of a very representative group of business and professional people, as well

as housewives, and indeed politicians, it was obvious that they would have very serious problems in conducting the highly

technical inquiry which was involved and reaching an opinion which could have very far-reaching effects for a young

professional man.

In my view the making of decisions, the reaching of conclusions or the finding of facts, however designated, is a common and

unavoidable function of everyday life. If it involves a determination of the rights of parties it may well be a matter which the

courts alone can decide. In every other walk of life the only other requirement is that the adjudication, if impinging upon the

reputation or character of any party, must involve the application of the principles of natural justice. I would readily infer that

the Oireachtas had power to confer on a subcommittee a power to make findings of fact in the sense that those findings

represented the views of the committee or a majority of them on any matter which might be in controversy. The fact that the

findings might of themselves have serious repercussions, or that the publication thereof might cause damage to the reputation

of witnesses or other members of the public, is regrettable but unavoidable. This contingency is adequately provided for by the

well established requirement that any such witness must be afforded such protection as the circumstances require extending if

necessary to what is described as “the full panoply of the Haughey rights”. I accept therefore that a subcommittee of the

Oireachtas may be empowered to gather information, compel witnesses to attend before it and to make findings of fact on any

issue properly raised before it. More particularly I am satisfied that such power can be exercised without the enactment of

further legislation. It is not challenged by the gardaí - respondents that a right to conduct an inquiry challenged in these

proceedings could be validly taken or conferred by legislation enacted in that behalf.

There are, however, limits beyond which such inquiries may not extend. There may be difficulties in defining those limitations.

However, even greater will be the practical difficulties for a committee composed of democratically elected politicians in

conducting any inquiry in accordance with the fair procedures which may be required to protect the constitutional rights of

persons giving evidence to the inquiry or who may be referred to in any report issued by it. As the essential function of

members of the Oireachtas is to enact new legislation, or review existing laws, the investigation of matters which may impinge

on those tasks is potentially within their remit. It may be less difficult and more helpful to identify the scope of the inquiries

which a subcommittee may not conduct. It is inconceivable that a committee of the Oireachtas could interest itself in the

exercise by individual citizens of their private rights. What would be even more disturbing would be an inquiry - whether

conducted by a committee of the Oireachtas or a tribunal set up under the 1921 Act - to carry out a criminal investigation.

Whilst a proper investigation or inquiry into a matter of public concern might, incidentally, impinge upon conduct of a criminal

nature, it is clear it would be difficult, if not impossible, to reconcile proceedings in the nature of a public hearing by a grand

jury with the right to a trial of criminal charges in due course of law guaranteed by the Constitution. Certainly evidence

obtained from a witness under compulsion of law could not be used against him in any subsequent criminal charge. The

Abbeylara Inquiry is no such investigation. The issues identified by the subcommittee in the “Statement of Issues and List of

Witnesses” would appear be entirely appropriate for investigation by a subcommittee of the Oireachtas. Of the thirty issues

identified I would classify twenty-four as concerning matters relating generally to the conduct and activities of the gardaí, the

Department of Justice, coroners inquests, licensing of firearms, training and similar matters. Issues which were specific to the

Abbeylara affair include four concerning the medical health and treatment of the late John Carthy and two concerning the

conduct of the gardaí in the course of the incident. Some of the submissions to the subcommittee would suggest that questions

could be raised as to the tactics of the gardaí in relation to disconnecting television or supplying or failing to supply cigarettes

but the most fundamental of the specific issues will be obviously the shooting dead of the late John Carthy. Clearly a question

would arise as to the correctness of the finding or opinion of Chief Superintendent Culligan that the shooting was necessary to

protect the lives of gardaí. From the submissions it would appear that this view would be challenged, first, on the basis that it

was unnecessary to fire any shot, or alternatively, that the fourth shot was unnecessary and unjustified as John Carthy had

been disabled by the third or earlier shots and no longer posed a threat to the nearby gardaí. The death of John Carthy is the

matter of deepest concern to his distressed friends and relatives. It is a matter of universal concern that any human being -

particularly a young man who was mentally unstable - should meet his death in this tragic fashion. However it does seem that

the general thrust of this inquiry concerns a broader picture in relation to structures or procedures which could and might be

regulated by legislation to ensure that any incident comparable to the Abbeylara affair should be dealt with in the most

efficient, competent and humane manner consistent with the protection of the lives and liberty of all citizens.

In recent years there have been numerous and repeated applications to the Courts for the judicial review of the decisions of

tribunals set up under the 1921 Act - what are usually called the “Judicial Inquiries”. It is constantly alleged that these inquiries

do not afford to witnesses the requisite degree of fair procedures to protect their constitutional rights. Indeed very real

problems do exist in extending fair procedures, which were developed under the adversarial judicial system, to an inquisitorial

system. Evolving jurisprudence may have assisted in resolving some of these problems but the difficulties faced by a judge,

whose profession and career gives him both security of tenure and a particular expertise, would be multiplied several fold for a

committee consisting of elected politicians who do not have that security and may not have that expertise. The tradition of the

judiciary is properly one of reticence: the business of the politician is one of communication. The very nature of the duties

performed by a politician involve discussion on matters which are of interest to them and their constituents. Such discussion

must give rise - as it has already done in the present case - to difficult questions of perceived bias. It would seem to me that

fair procedures would virtually preclude a politician from discussing any aspect of an inquiry in which it was involved until the

matter had been concluded. Whether the television interviews granted by some members of the subcommittee in the present

case would disqualify them from further participation is a matter on which the divisional court has not expressed any view and

accordingly is not before this court for determination. It is, however, obviously one of many matters which is likely to give rise

to problems in the conduct of an inquiry by a committee consisting of elected politicians.

Consent

Of the procedural or technical difficulties which arose in the setting up of the committee the most significant related to the

issue as to whether the requisite statutory consent had been obtained.

This much is agreed. At the date on which the subcommittee first gave or purported to give directions pursuant to s.3 of the

1997 Act the subcommittee did have the approval of the Compellability Committee to give those directions. It is equally clear

that such consent was not in writing, less still a writing signed by the chairman of the subcommittee or any other member of

the subcommittee authorised by such chairman as required by s.3 subsection 9(a) of the Act of 1997.

The question is whether the consent of the Compellability Committee to the purported directions must exist in the written form

prescribed by subsection 9 before the subcommittee can validly exercise any such direction.

The word “consent” is not included in the interpretation section of the 1997 Act. It is first encountered in subsection 1 of

Section 3. That subsection merely requires “the consent of the appropriate subcommittee”. It is subsection 9 of s.3 which

expressly requires that the consent of the appropriate subcommittee “shall be in writing”.

In addition to the form of the document, paragraph (b) of subsection 9 prescribes that the consent shall relate to specified

functions of the subcommittee concerned and goes on to provide that the consent may relate to a variety of directions or

persons “as may be specified in the consent”. That potential for complexity may be an additional reason for the legislature

expressly requiring the consent to be in writing.

However the primary purpose - or so it would appear to me - of requiring the document to be in writing, is the statutory

evidential value conferred on it by paragraph (c) of subsection 9. That paragraph provides that a document purporting to

comply with Section 3 subsection 9 shall “unless the contrary is shown, be evidence of the consent .....”.

It was argued on behalf of the subcommittee that the consent of the Compellability Committee became operative - at least for

some purposes - as soon as it was given. It was pointed out that the Oireachtas could have provided - if they had intended

otherwise - in s.3 (1) that the subcommittee could give directions provided that they had the prior consent in writing of the

appropriate subcommittee. To this the Respondents reply that the consent referred to in s.3(1) is by virtue of subsection (9)(a)

required to be in writing so that the inclusion of the words “in writing” in s.3(1) would be tautologous.

The 1997 Act has not given the word “consent” an artificial meaning. It must therefore be understood in its ordinary sense as

permission or approval. There is no doubt - and the Respondents would not dispute - that if and when the Compellability

Committee unanimously approved the application of the subcommittee that they thereby gave their “consent” to that

application.

When the Oireachtas required that the consent should be reduced to writing it did not change the nature of the consent but

did make a statutory requirement as to the form in which it should be recorded.

Counsel on behalf of the Appellants drew attention to the distinction between a spoken order of the Court and the document in

which it is recorded. That such a distinction exists is elementary. One can have an order or a consent and it can be recorded

and may be required to be recorded in a particular form or with particular solemnity. On the other hand one cannot gainsay the

fact that the order in the case of the Court, or the consent in the case of the Compellability Committee, was made or given

before it was reduced to writing.

One could draw a very clear distinction between form and substance by referring to the Bills of Exchange Act which in s.3

defines a bill of exchange as:-

“An unconditional order in writing, addressed by one person to another, signed by the person giving, requiring the person

to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the

order of a specified person or to bearer.”

The same definition extends to a cheque save that the order is drawn on a bank. Undoubtedly one could give directions to a

bank orally to make payments out of an account to a specified person and, if the bank was satisfied to act on oral instructions

this might well be an effective direction, but that direction would not be a bill of exchange or a cheque as it was not in writing.

There is nothing in the 1997 Act which changes the inherent nature of the consent actually given by the Compellability

Committee. Indeed in the very nature of a committee the decision must be made in the first place orally then subsequently

reduced to writing. There is necessarily a two stage process - a consent and a reduction to writing. However, it seems to me

that subsection 9 of s.3 gives even stronger support to the Appellants. It certainly establishes that the purpose of reducing the

consent to writing is to create a document which will be prima facie authority for the committee to which it is given. What is

specific in the subsection is that the writing is prima facie evidence of the consent. If it is prima facie evidence of the consent

then the writing itself is not the consent but merely confirmation that the consent was indeed given. That seems to me

recognition of the fact that the material consideration is the availability of consent and the purpose of the document in writing

is to prove - where it may be necessary to do so - that the consent does exist. But that is only a matter of proof. Consent

either does or does not exist. In my view the consent did in fact exist at the time in which the subcommittee purported to give

directions in reliance upon it.

I believe, therefore, the Oireachtas does have the requisite power to set up the subcommittee to conduct the proposed inquiry.

I do anticipate immense practical difficulties in conducting such an inquiry in accordance with the requirements of natural

justice and fair procedures. However, that defect is not inherent in the nature of the inquiry itself and it would be premature to

express any opinion at this stage as to whether the difficulties which I foresee will be overcome. I would allow the appeal in its

entirety.