Court holds Oireachtas lacks inherent power to establish inquiry committees impugning citizen good names without constitutional basis.

THE SUPREME COURT

Keane C.J.

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

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 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

Respondents/Appellants

JUDGMENT delivered on the 11th day of April 2002 by MURRAY J.

Introduction

This is an appeal from the judgment and order of a divisional court of the High Court in proceedings in which the

Applicants/Respondents (hereafter Respondents) successfully challenged the establishment and conduct of a parliamentary

inquiry by a joint sub-committee of the Oireachtas known as the "sub-committee on the Abbeylara incident" hereafter 'the sub-

committee'. At the time of the commencement of these proceedings the inquiry being conducted by the sub-committee

concerned the circumstances and events which occurred at Abbeylara, Co. Longford on 19th and 20th April, 2000 which

culminated in Mr. John Carthy, who was armed with a shotgun, being shot dead by the Garda Síochána. All of the Respondents

are members of the Garda Síochána who had been required to attend before the sub-committee for the purpose of giving

evidence concerning these matters, some of whom were directly involved in the events including the member who shot Mr.

Carthy.

The sub-committee was formed by a joint committee of the Oireachtas known as the "Oireachtas Joint Committee on Justice,

Equality, Defence and Women's Rights" hereafter 'The Joint Committee'. All of the Appellants, with the exception of the last

two, are members of the Joint Committee, the first seven of whom are also members of the sub-committee.

The issues in the appeal are concerned with each of the declarations or orders made by the Divisional Court. These were as

follows:-

"(1) A declaration that the conduct of a public enquiry with the aid of the power of the State and conducted by

members of the Oireachtas under the aegis of the Houses of the Oireachtas and with the authority thereof liable to

result in findings of fact or expressions of opinion adverse to the good name, reputation and/or livelihood of persons not

members of such Houses is ultra vires the powers of such Houses.

(2) A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality, Defence and Women's

Rights purportedly convened by resolution of the said Joint Committee in purporting to report on and investigate the

Abbeylara incident has acted ultra vires the powers conferred by the Committees of the Houses of the Oireachtas

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

(3) A declaration that the sub-committee of the Joint Oireachtas Committee on Justice, Equality Defence and Women's

Rights purportedly convened by resolution of the said Joint Committee in purporting to report on and investigate the

Abbeylara incident has acted ultra vires the powers conferred by the resolution of Dáil and Seanad Éireann of the 25th

October 2000.

(4) An Order of Certiorari quashing the resolution of the Joint Oireachtas Committee on Justice, Equality, Defence and

Women's Rights of the 10th April 2001 whereby the said Committee purported to extend the terms of reference of the

sub-committee purportedly established on the 8th March 2001 by the said Joint Committee and whereby the said sub-

committee was purportedly empowered, if it considered it necessary to do so, to hear evidence in accordance with the

provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses)

Act 1997 and to report to the Joint Committee thereon and to include its findings and conclusions and recommendations,

if any.

(5) A declaration that the submission of the sub-committee on the Abbeylara incident to the Joint Committee on

Compellability of Committees of Procedure and Privilege of Dáil and Seanad Éireann made about the 11th April 2001 was

made in breach of the terms of reference as comprised in the Order establishing the said sub-committee and without

jurisdiction.

(6) An Order of Certiorari quashing the directions to the applicants requiring them to attend before the Abbeylard sub-

committee, there to give evidence and to produce documents in their possession.

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

natural and constitutional justice."

The sequences of events and facts concerning the establishment of the sub-committee, the procedures which it adopted and

followed in proceeding with its inquiry as well as the submissions and arguments of the parties have been helpfully set out in

detail in the judgment of the Chief Justice.

As is reflected in the various orders made by the Divisional Court the Respondents relied to a significant extent on the

contention that there were procedural defects and a want of fair procedures in the establishment and conduct of the inquiry by

the sub-committee which were fatal to its legal status and its power to proceed further with the inquiry. However, there is a

much more fundamental issue raised in these proceedings which concerns the contention of the Respondents that the

Oireachtas had no power, deriving from the Constitution or statute, to establish a committee to conduct an inquiry of the

nature which the sub-committee was conducting in this case. The Respondents succeeded on this point also in the High Court

which is reflected in paragraph 1 above of the order of the Divisional Court. The Appellants for their part, in appealing against

the findings and order of the High Court, contend that the power of the Oireachtas to establish a committee to conduct such

an inquiry is an inherent power deriving from the constitutional role and functions of the Oireachtas as the National Parliament

established by the Constitution.

It is not in issue that the Houses of the Oireachtas have the right to inform themselves on matters relevant to their

parliamentary functions and to conduct, or authorise committees of the Oireachtas to conduct, inquiries for that purpose. What

the Respondents have objected to is the extent or ambit of the powers of the sub-committee in this case. It is submitted that

in so far as the sub-committee has considered itself entitled to make findings of fact or express opinions adverse to the good

name, reputation and/or livelihood of persons not members of either House of the Oireachtas the establishment of the

committee is ultra vires the power of the Oireachtas to do so.

Before considering whether the powers being exercised by the sub-committee are powers which are inherent to the Oireachtas I

think it is important first of all to examine the nature of the inquiry being conducted by the sub-committee in this case, having

regard to the powers which it is seeking to exercise.

Nature of the Inquiry

Leaving aside for the present any issue as to whether the powers conferred on the sub-committee were properly so conferred

the actual powers conferred or which the committee purported to exercise are not really an issue. On the question of inherent

jurisdiction the issue between the parties focuses on the consequences which flow from the conferring of such powers on the

sub-committee. Thus the powers which were conferred or which it was purported to confer, on the sub-committee included the

following:-

(a) Power to take oral and written evidence and to publish the evidence taken in public;

(b) power to invite and accept written submissions from interested persons or bodies;

(c) power to direct the attendance of witnesses and to direct such witnesses to produce documents in their possession

or power;

(d) Power to examine or cross-examine witnesses and put to them allegations made against them by other witnesses.

(e) power to address possible conflicts of fact arising directly or indirectly from oral or documentary evidence;

(f) power to make such findings of fact as are necessary to enable the sub-committee to reach conclusions and make

recommendations;

(g) power to make findings of fact or conclusions which could adversely affect or impugn the good name of any person.

I do not think it is necessary for present purposes to describe in detail the source of these powers since these are set out

comprehensively in the judgment of the Divisional Court. In summary the powers were conferred on the committee by virtue of

the Order of the Joint Committee establishing it and in particular sub-paragraph (e) of that Order, the resolution of both Houses

of the Oireachtas of 4th April, 2001 granting it power to sent for persons, papers and records and the amendment to its terms

of reference made by the Joint Committee on 12th April, 2001. The sub-committee applied to the Compellability Committee

pursuant to section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privilege and Immunities of Witnesses)

Act, 1997 for the grant of a consent to the sub-committee to give directions and exercise compellability powers. In doing so it

applied expressly pursuant to Rule 14 of the Rules and Guidelines for Committees in relation to the conduct of proceedings

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

In that application the sub-committee expressly referred to its work as one which would "include making such findings of fact

as are necessary to enable the sub-committee to reach conclusions and make recommendations." The consent which was

ultimately granted by the Compellability Committee stated, inter alia, that such consent was granted "for the express purpose

of permitting the sub-committee on the Abbeylara incident to inquire into the said incident and related matters and to address

such possible conflicts of fact as, in the opinion of the sub-committee on the Abbeylara incident, arise directly or indirectly

from oral or documentary evidence;".

Although I have not set out in complete detail all the powers of the sub- committee the foregoing are the core powers which

the committee exercises for the purpose of conducting its inquiry and drawing up its final report. I think it is also relevant to

note that according to the Order establishing the sub-committee it reports to the Joint Committee which established it.

Pursuant to section 13(2) of the 1997 Act the Joint Committee would be under a duty to, "in so far as is reasonably

practicable, conduct its proceedings and perform its functions in accordance with any rules and guidelines ..." made under

subsection 1 of section 13. In July 1999 rules and guidelines were adopted pursuant to subsection 1. Rule 13 of those guidelines

provides that where a committee receives a report from a sub-committee which it appointed it may accept, reject or refer back

the report. In case the committee accepts the report the rule acknowledges the power of the committee to add

recommendations and in this regard expressly provides "provided that, in accepting a report, the committee may add to it in so

far as the additions constitute recommendations arising from facts found or opinions expressed in the report". It would

appear, therefore, that the Joint Committee would be bound by any facts found or opinions expressed in the report of the sub-

committee for the purposes of making any further recommendations of its own.

I would recall at this point some of the issues which the committee itself states that it intends to address in the inquiry. These

are set out in the Statement of Issues submitted by the sub-committee to the Compellability Committee in its application for a

consent pursuant to section 3 of the 1997 Act. It is described as a preliminary list of issues and not intended to be exhaustive.

The Chief Justice has referred to the statement of issues in some detail and they include such issues as "the

effectiveness/appropriateness/reasonableness of the Garda operation"; the amount of force used, the possible use of "less

than lethal weapon" and the statement makes specific reference to general findings of fact and conclusions as well as

recommendations for the future.

What emerges from the foregoing is that a sub-committee of the Oireachtas has great and comprehensive powers to require

citizens, who are not members of the Oireachtas, but whose actions or knowledge of facts are deemed by the committee to be

relevant to the subject matter of their inquiry, to appear before it in public session, to answer to the sub-committee and to

answer any allegations, however grave, made against them concerning their personal conduct. Persons called to attend are free

to make such allegations of a grave nature against any other person with complete immunity, subject only to control by the

sub-committee.

Moreover, the scope for an Oireachtas committee to make findings of fact or reached conclusions on any issue of fact or matter

involving the culpability or reputation and good name of a citizen affected by the inquiry appears to be unlimited, and certainly

appears to have been treated as so by the sub-committee in this case, once those matters fall within the ambit of the inquiry

being conducted.

This is exemplified by the assertion of counsel for the sub-committee before the High Court and repeated before this Court that

it would be entitled to make a finding of "unlawful killing" on the part of an individual member of the Garda Síochána.

As Mr. Justice Hardiman points out in his judgment this would in effect mean that the sub-committee could arrive at a

conclusion that the individual garda member who fired the fatal shot which killed the late Mr. John Carthy had committed an

unlawful homicide. If such a conclusion were reached it would, to put it no higher, be the formal opinion or conclusion of the

committee albeit without any effect in law as to his legal culpability for any offence. I will give further consideration to the

implications of this kind of finding later.

For the moment it is sufficient to note that a common thread in the case made on behalf of the Appellants is that once a

committee of the Oireachtas has been duly established to inquire into any matter of public importance (and is, in the submission

of the Attorney General, doing so for a purpose connected with the constitutional role of the Oireachtas) it may reach any

finding or conclusion, to be published formally as part of its report, that a citizen has committed the gravest of wrongdoings.

Of course the Appellants have contended in these proceedings that all these powers, including those entitling an Oireachtas

committee to make findings of fact or at least reach conclusions, are necessary and inherent in the Oireachtas if it is to

properly fulfil its constitutionally conferred functions. The Respondents for their part state that they have no objections to an

inquiry having powers of this nature provided it was an inquiry which was independent of the political process such as a Tribunal

of Inquiry established under the Tribunals of Inquiry Act, 1921 as amended. The objections of the Respondents to an Oireachtas

committee having such wide ranging powers focuses, in this context, on the fact that members of the Oireachtas have a day to

day political role and the absence of any express power in the Constitution conferring on them powers to make individual

citizens answerable to them to that extent and in that manner. One of the central contentions on the part of the Respondents

is that the exercise of such powers may affect the constitutional rights of individual citizens, in particular their right to a good

name, and that the Oireachtas, through such committees, has no power to compromise or injure such rights in the absence of

any express power in the Constitution. The Appellants on the other hand, and in particular the Attorney General, as part of their

submissions have submitted that the findings or conclusions of a committee of inquiry of the Oireachtas are no more than

expressions of opinion and do not determine legal rights or obligations.

Are rights affected?

Counsel for the Attorney General emphasised that the views of any parliamentary committee have no legal effect and constitute

no more than the opinions of the committee members about the facts examined by them. The other Appellants concurred in this

approach. It was submitted that the opinions or conclusions of a parliamentary committee are sterile of legal effect and do not

involve the determination of any rights or liabilities of individuals.

It is common case that the conduct of a parliamentary inquiry of the nature in issue here does not constitute an 'administration

of justice' within the meaning of Article 34 of the Constitution no more than does a Tribunal of Inquiry established under the

1921 Act. The Attorney General took issue with the conclusions of the High Court in its judgment that the potential factfinding

aspect of a parliamentary committee's powers constituted an 'adjudication'. Counsel for the Attorney General drew attention to

the distinction drawn by Hamilton C.J. in Haughey v. Moriarty [1999] 3 I.R. 1 between 'trial and adjudication' on the one hand

and 'inquiry' on the other. Counsel also relied on dicta of Hederman J. and McCarthy J. in their respective judgments in Goodman

(No. 2) v. Hamilton [1992] 2 I.R. 542 when they distinguished 'trial and adjudication' and inquiry. It was submitted that the

learned High Court judges erred in law to the extent that they relied on the concept of "adjudication" as characterising the

process of inquiry and the reaching of conclusions which is carried out by a parliamentary committee of inquiry. In support of its

submission along the same lines counsel for the committee relied on the statement of Murphy J. in Lawlor v. Flood [1999] 3 I.R.

107 concerning the nature of the findings of a statutory Tribunal, "it must be remembered that the report of the Tribunal while

it may be critical and highly critical of the conduct of a person or persons who give evidence before it is not determinative of

their rights. The report is not even a stage in a process by which such rights are determined. The conclusions of the Tribunal

will not be evidence either conclusive or prima facie of the facts found by the Tribunal."

In one sense I agree with the submissions made on behalf of the Appellants in this regard. If "adjudication" is used in the sense

that it means a judicial act which can only be validly performed by judges it is not a correct term to characterise the functions

exercised by a parliamentary committee of inquiry or indeed the powers exercised by a Tribunal of Inquiry as the authorities

cited demonstrate. Nor would it be a correct characterisation if it were intended to mean that legal rights of parties or as

between parties were determined with legal effect.

I am not satisfied however that the Divisional Court of the High Court used the term adjudication in either of the foregoing

senses when it referred to the adjudicative functions of the sub-committee. I am unable to interpret the High Court judgment

as meaning that the findings of fact or conclusions or opinions of the sub-committee were to be treated as if they had a binding

effect similar to a judicial act. In that judgment it used phrases such as "this power of adjudication", "issues of fact requiring

adjudication", "adjudicative jurisdiction of the type which is sought to be exercised here", "inherent power of the type

contended for". In using the terms adjudication or adjudicative I think the High Court was doing no more than referring to the

substance of the powers which the sub-committee actually seeks to assert and use and was not treating or characterising

them as having legal effect or capable of determining their legal rights as such. If the term adjudication has in its primary sense

judicial connotations it seems to me that it was used in the High Court in a secondary sense as referring to the power of the

sub-committee, when faced with a conflict of fact, to adopt or accept certain facts as being correct and making findings

accordingly.

In any case whatever the merits of the argument concerning the use of the term adjudication the fact remains that the case

made by the Respondents in the High Court and in this Court is based on the de facto powers which the sub-committee asserts

it is entitled to exercise and the extent to which their exercise, particularly as regards findings and conclusions, may in reality

affect their rights. The case is not based on the premise that any findings, conclusions or opinions reached by the sub-

committee have binding legal effect.

Of course the Attorney General and the other Appellants go further than saying that the use of the term adjudication was

inappropriate and a misconception as to the role and functions of the sub-committee. On the substantive point it was submitted

that because the conclusions or findings of a parliamentary committee represent no more than the opinion of that committee,

its power to make findings of fact should not be considered as an infringement of rights even where they are adverse to the

good name or reputation of an individual. This submission was allied to other submissions to the effect that the powers were not

unlimited since they had to be exercised for legitimate purposes and proportionately. It was also submitted that the exercise of

such powers of inquiry by a parliamentary committee with full respect for the principles of natural justice and fair procedures

constituted a fair and proper balance between the right of the Oireachtas to conduct inquiries and the protection of a citizen's

good name. However, I will come to these latter points later. What I wish to consider here is the manner or extent to which

such an inquiry and its findings may affect rights.

Potential effect of 'findings' or 'opinion' of the sub-committee

In the light of the powers of the committee I do not think it can be gainsaid that its findings, however they are characterised,

can affect rights. Indeed the whole raison d'etre for specific measures designed to ensure fair procedures, such as the right to

be represented and to cross-examine witnesses, is to enable persons, whose conduct or actions are the subject of such an

inquiry, to defend themselves where their rights, such as a right to a good name, may be affected. It was accepted by Mr.

McGuinness, S.C. counsel for the Attorney General, that a witness before the parliamentary inquiry could have his good name

and reputation affected by its findings. Ó Dálaigh C.J. in In re Haughey (at 264) stated:-

"... in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person

or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which

may affect his rights, and in compliance with the Constitution of the State, either by its enactments or through the

Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights".

In that judgment the former Chief Justice also expressed the view that where the conduct of a witness before such a tribunal is

a subject matter of the committee's examination such a person cannot be regarded as a mere witness but should be more

properly considered as a party. Moreover, in Redmond v. Flood [1999] 3 I.R. 79 Hamilton C.J. observed:

"There is no doubt but that an inquiry by the Tribunal into the allegations made by Mr. Gogarty ... allied with the

exceptional inquisitorial powers conferred upon such tribunals under the Act of 1921, as amended, necessarily exposes

the applicant and other citizens to the risk of having aspects of their lives uncovered which would otherwise remain

private and to the risk of having baseless allegations made against them. This may cause distress and injury to their

reputations and may interfere with the applicant's constitutional right to privacy."

Those judicial observations concerning the manner in which rights may be affected apply with equal force to a public inquisitorial

inquiry such as that being conducted by the sub-committee. They reflect the realities of any public inquisitorial process which

may lead to findings or conclusions of personal culpability adverse to their good name on the part of citizens particularly for

matters, which in a court of law, would be considered civil or criminal wrongs. These realities of what a witness in a public

inquisition may face are also reflected in the observations of Chief Justice Warren in Watkins v. United States (354 US 178 at

197):

"The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or

associations is a measure of governmental interference. And when those forced revelations concern matters that are

unorthodox, unpopular, or even hateful to the general public, the reaction in the life of the witness may be disastrous.

This effect is even more harsh when it is past beliefs, expressions or associations that are disclosed and judged by

current standards rather than those contemporary with the matters exposed."

I find reliance on the distinction that the findings of the sub-committee would only be of "sterile legal effect" or constitute

"opinions" irrelevant. They would be relevant if the issue was whether the sub-committee was engaging in a process which

constituted the administration of justice within the meaning of Article 34 of the Constitution. That is not the case.

As Max Weber has observed every institution deploys its mana and charisma. The Houses of the Oireachtas derive their

authority and standing from the Constitution as the core elements of the Oireachtas as an institution. An inquiry conducted by

members of the Oireachtas on its behalf deploys a concentrated authority that derives from its role as one of the great organs

of government established by the Constitution. A committee of the Oireachtas acting under the aegis of that authority and

exercising extensive and magisterial, in a non-judicial sense, powers can make an enormous impact on the name and reputation

of citizens against whom it makes findings of wrongdoing which, in a court of law, would constitute civil or criminal wrongs.

Should the sub-committee in this case proceed to find that an individual garda or gardaí had participated in an unlawful killing it

could only have devastating impact on the professional and personal reputation of those concerned even in the absence of legal

effect.

It is manifest that a power of an organ of State to take away the good name of any citizen is one of a very grave import and

directly affects rights. The right to a good name is expressly acknowledged in Article 40.3.2 of the Constitution which requires

the State, by its laws, to protect and vindicate the good name of every citizen. This is also a fundamental right long recognised

by the common law. Blackstone in his commentaries, 1765 states:

"The security of his reputation or good name from the arts of detraction and slander are rights to which every man is

entitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other

advantage or right". (Book 1, p. 134, 8th edition).

The conduct of an inquiry under the aegis and authority of the Oireachtas which may affect the constitutional right of an

individual citizen to his or her good name can only be considered as the purported exercise of a governmental power, within the

meaning of Article 6 of the Constitution, conferred on the legislature.

It is in the light of the extent and import of the powers being exercised by the sub-committee that the question as to whether

the Oireachtas enjoys such inherent powers under the Constitution to make citizens answerable to it in this manner and to this

extent.

Inherent power

It is common case that there is no provision in the Constitution which expressly authorises the Oireachtas to conduct inquiries

of the nature being undertaken by the sub-committee. The appellants argue the power must be implied. It is submitted that it

ought to be implied because the exercise of such a power is inherent to the proper functioning of a representative parliament.

I think it might be as well to emphasise that it is not relevant to the issues which the Court has to try whether it is desirable

that the Oireachtas should have such powers. The question is rather whether the people, in enacting the Constitution of 1937

conferred powers on the Oireachtas inherent in which is the power to conduct an inquiry of the nature in issue in this case.

Accordingly, the submissions of the Attorney General, to which the other Appellants subscribed, focus inevitably on the

provisions of the 1937 Constitution. Either the power to conduct inquiries of this nature by a committee of the Oireachtas is

inherent in those provisions or it does not exist at all. The Attorney General submitted that the role of the Oireachtas goes far

beyond that of a mere legislative organ. In addition to legislating, the duties of the Oireachtas include such matters as the

control and scrutiny of national expenditure and taxation, criticism of national policy, scrutiny of central administration and to a

limited extent at least, procuring the redress of individual grievances, for example, through the use of parliamentary questions.

A core function of the Dáil is to hold the Government answerable to its members and it has the power to dismiss the

Government. The Attorney General made particular reference to Article 6 by which powers of government, including legislative,

are exercisable by the organs of State established by the Constitution, Article 15 which governs the constitution and powers of

the National Parliament, Article 16.2.1 which provides for the representative nature of Dáil Éireann and Article 17.7.1 which

provides for the presentation to Dáil Éireann of the annual Estimates of receipts and expenditure of the State in any financial

year. Reference was also made to Article 28.4.1 according to which the Government shall be responsible to Dáil Éireann. In

summary the Attorney General submitted that the Dáil had three essential functions which were (a) legislative; (b)

accountability of the Executive and (c) control of public expenditure. The Senate shared with Dáil Éireann the legislative role. It

was submitted that constitutional functions, in particular the legislative function, necessarily included and required a power to

investigate matters relevant to the exercise of those functions. Indeed the Attorney General submitted that the power of the

Oireachtas to conduct inquiries was limited to inquiries conducted for the purposes of those functions. Mr. Shatter in his

submissions goes further and says that the inherent power to inquire is not so limited but relates to any matter of urgent public

importance. Article 15, in particular Article 15.10 recognises that freedom of debate is an essential element in the exercise of

parliamentary functions and that Articles 15.12 and 15.13 in conferring a number of privileges on the individual members of the

Houses strengthen and protect that freedom of debate. In substance the Attorney General submitted that the members of the

Oireachtas have a right and a duty to inform themselves on all matters relevant to the exercise of their function. A

parliamentary inquiry is not an end in itself but rather is a process designed to feedback into the general parliamentary

processes. The issue, it was submitted, was not whether there was any power of inquiry inherent in the Oireachtas but the

extent of such a power of inquiry. The High Court held the inquiry be conducted in this case to be invalid by reference to the

sole criteria that it was liable to adversely affect the good name of third parties.

There is a good deal of substance in the approach adopted by the Attorney General and the other Appellants in this regard not

all of which is disputed by the Respondents. It does seem trite to say that members of the Houses have a right and indeed a

duty to inform themselves of any matter which is relevant to their functions. Individual members may inform themselves by

recourse to the views of constituents, expert reports, matters published in the media and the like. Collectively the Houses may

keep themselves informed by recourse to similar sources of information and it is not uncommon for Ministers to place in the

library of the Houses of the Oireachtas the reports of experts or inquiries relevant to legislation being introduced. It almost goes

without saying that the Constitution should not be interpreted in a manner which is unduly restrictive of the functioning of

either House of the Oireachtas. The Constitution is not only about rights but about liberties. There is nothing in the Constitution

which would prohibit a local committee or indeed a committee of virtually any kind from conducting an inquiry into a matter

which it considered worth inquiring into. The capacity of such committee to conduct an inquiry does not have to be derived

from any express or inherent power conferred by the Constitution. It is simply something which they are not prohibited from

doing. Of course, apart from any internal rules, such a committee would have to act within the law and would be liable for any

defamatory statements which it made not enjoying the immunity which members of the Oireachtas enjoy under the Constitution.

I think the Attorney General is correct when he submits that there is nothing in the Constitution to inhibit or prohibit the

Oireachtas from conducting or initiating inquiries as such. The fact that the Houses of the Oireachtas may conduct or initiate

inquiries to obtain information or ascertain facts does not derive from an inherent power peculiar to its role and function as a

representative democratic parliament although its desire to do so in any particular case would indeed be related to such

functions. But once an inquiry is conducted within the law and the Constitution it seems to me it is axiomatic that the National

Parliament, like many other even private bodies, may conduct an inquiry for their own purposes. It is not restricted from doing

so.

The freedom to inquire and be informed on matters relevant to the exercise of their functions by members of the Oireachtas is

in a sense neutral, once it does not impinge on the rights of third parties or the functions of other constitutional organs such as

the courts.

But the Houses of the Oireachtas are creatures of the Constitution. That is their sole source of governmental authority which,

according to Article 6 of the Constitution, is derived from the people. If it acts so as to affect the rights of citizens this cannot

be compared to a simple search for knowledge. If an organ of State acts so as to affect the rights of citizens it can only be

justified in doing so pursuant to a governmental power conferred on it by the Constitution. When the Oireachtas exercises its

authority in a manner which may affect the rights of others it acts with the aura and authority of a constitutional organ of

State. To adjudicate, in the sense that the term is used here, on the culpability of citizens in their conduct cannot in my view

be equated with the everyday search for knowledge of facts or expert opinions. That is a governmental power which it seems

to me can only be exercised by virtue of power conferred by the Constitution.

Accordingly, different considerations must arise when the Houses of the Oireachtas assert a constitutional power to embark

upon an adjudicative process, in the secondary sense, which has as one of its objects or functions to make findings of fact or

reach conclusions which may impugn the good name of a citizen. As I have already pointed out earlier in this judgment this is a

very great power capable of affecting the rights of citizens with potentially disastrous consequences. I would note in passing

that the courts themselves do not have such an extensive power there being no investigatory role attributed to them.

While the Constitution is completely silent on this matter it was stated by this Court in Haughey v. Moriarty (at p. 32):

"The powers of the Houses of the Oireachtas are not limited to those specifically set forth in Article 15 of the

Constitution but must include such powers as are normally and necessarily exercised by a legislature in a democratic

State. These powers in the exercise thereof may, of course, be limited by the powers of the Constitution."

The task of the court is a cognitive one. It is to ascertain whether there has resided in the Constitution an inherent power of

the Oireachtas to conduct inquiries which may lead to adverse findings impugning the good name of a citizen. It is an

interpretation which must be mandated by the Constitution. The question must also be approached in the light of other rights,

in particular Personal Rights, guaranteed and protected by the Constitution as well as concurrent powers of the Oireachtas.

I wish to refer at this point to certain express powers conferred by the Constitution on the Oireachtas. Article 15.10 provides:

"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."

This is a specific and express power conferred on each House to govern the conduct of its own members, to determine when

those members have been in breach of its rules and standing orders for the purpose of imposing penalties for their infringement.

The standing orders of each House make provision for the suspension of a member of the House for a specified period by reason

of a breach of rules or standing orders. It too is a potent power and may affect the rights of members to participate and vote in

proceedings in each House. It may also confer upon each House the right to make adverse findings against any person or

persons interfering with, molesting or attempting to corrupt its members although the ambit of this power was not really

debated in the course of these proceedings. The Article nonetheless is one by which express powers are conferred.

Pursuant to Article 12.10 the President may be impeached for stated misbehaviour. A charge of stated misbehaviour may be

preferred by either House of the Oireachtas and the other House is under a duty "to investigate the charge, or cause the

charge to be investigated". Article 13.8.2 provides:

"The behaviour of the President may, however, be brought under review in either of the Houses of the Oireachtas for

the purposes of section 10 of Article 12 of this Constitution, or by any court, tribunal or body appointed or designated by

either of the Houses of the Oireachtas for the investigation of a charge under section 10 of the said Article."

Article 33.5. provides for the removal of the Comptroller and Auditor General for stated misbehaviour upon resolutions passed by

Dáil Éireann and Seanad Éireann. Similarly, Article 35 provides for the removal from office of a judge of the Superior Courts for

stated misbehaviour upon resolutions being passed by both Dáil Éireann and Seanad Éireann calling for his or her removal.

All of these provisions confer express powers on the Houses of the Oireachtas to make findings of culpability on the part of

persons who occupy the offices concerned.

These provisions were relied upon to a greater or lesser extent by the Appellants to demonstrate that the role and functions of

the Oireachtas extend beyond a mere legislative function. This they undoubtedly do. However, they also throw in relief the

stark silence of the Constitution on the attribution to either House of the Oireachtas a power to investigate and making findings

of culpability for wrongdoing on the part of citizens, who fall outside the ambit of those provisions, and thereby impugn their

good name or reputation.

In this regard one cannot but attach fundamental importance to Article 40.3 of the Constitution which provides:

"1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the

personal rights of the citizen.

2. 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 life, person, good name and property rights of every citizen."

The fundamental and intrinsic value of the right to one's good name and reputation, long recognised by the common law, is

expressly raised to constitutional status by Article 40. As I have already pointed out the Constitution was drafted and adopted

so as to give express powers in specific circumstances to the Houses of the Oireachtas to make findings of culpability of certain

persons or officeholders for wrongdoing which would inevitably have the gravest consequences for their good name and

reputation. The contrasting silence of the Constitution on the question of a power vested in the Houses of the Oireachtas to

exercise its authority so as to make findings of fact involving personal culpability for wrongdoing, in this case one of unlawful

killing, on the part of individuals so as to impugn their good name and reputation, is one reason why I cannot conclude that the

existence of an inherent power is mandated by the terms of the Constitution itself.

Certainly, the Appellants have argued that the right to a good name is not absolute and that the procedures according to which

the sub-committee is conducting its inquiry provide ample means to any person concerned in the inquiry to defend and vindicate

his or her good name. Accordingly, it was submitted, an appropriate balance had been struck between the right of the

Oireachtas to conduct inquiries and the right of an individual to protect his or her good name.

While it may indeed be that the right to a good name is not an absolute right in all circumstances a fundamental flaw in this

argument is that it necessarily assumes the existence in the first place of a right to conduct such an inquiry and making findings

impugning the good name of an individual, such as by a finding of unlawful killing. Fair procedures are self-evidently a procedural

matter. There must first of all be an inherent power to conduct an inquiry of such a nature. It is only when there exists a power

to conduct an inquiry or a hearing as to the culpability of an individual that procedural questions concerning the fairness of the

proceedings and the rights of the parties which may be affected by such a hearing arise. Similarly, the principle of

proportionality, referred to by the Attorney General in his submissions, arises when there are competing rights, in this context, a

competing right of the Oireachtas to conduct an inquiry of this nature and the right to a good name. Merely establishing fair

procedures to be followed in the exercise of a particular power does not create that power itself. Fair procedures apply to the

exercise of an existing power. In short, just as the passing of an Act for the purpose of regulating the exercise of an alleged

power cannot be used as evidence of the existence of such a power, as Geoghegan J. observes in his judgment, neither can

the provision of fair procedures be evidence of it’s existence.

It was argued by the Appellants that the judgments in In re Haughey [1971] I.R. 217, which was concerned with the inquiry

being then conducted by the Public Accounts Committee laid down principles according to which fair procedures should be

observed in the conduct of that inquiry. The Appellants relied on this judgment as authority for the proposition that the

Oireachtas does have power to establish committees to conduct inquiries of the nature in question here. This argument was

addressed by the Divisional Court in the following manner:

"The Respondents contend that the argument made concerning the lack of an inherent jurisdiction to conduct an inquiry

of the type in suit runs counter to the decision of In re Haughey. Despite the extensive nature of the argument made in

that case it does appear that this point was never argued. A point not argued is a point not decided. It may not have

been raised for any number of reasons... For whatever reason that point was not argued or decided and therefore we

do not think that the decision in 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 entirely agree with this conclusion. In that case the issue or implications of an express or inherent power of this nature

residing in the Oireachtas was neither raised nor addressed.

There are further considerations which lead me to conclude that the Constitution of Ireland does not permit let alone mandate

that there is to be found in its provisions an unexpressed inherent power of the Oireachtas to conduct inquiries of this nature

concerning the personal culpability of individuals leading to findings which may impugn their good name.

Committees of inquiry are, by virtue of their role and function, part of the political process. Evidently, they are composed of

public representatives answerable to their constituents, public opinion and with a day to day interest in the cut and trust of

everyday politics. I do not say that a public representative by virtue of his or her political role is incapable of acting fairly and

objectively. Nonetheless there is the underlying fact that they each have an ever present interest, from one perspective or

another, in the political issues of the day including the ever present one of the standing or otherwise of the Government in

office and its Ministers. Constitutionally the Government is answerable to members of the Dáil and in a different, but substantive

way, may be the subject of support or opposition by members of the Senate. Unlike other forms of enquiry Oireachtas

Committees are not independent of the political process. The question arises whether the Constitution, although silent on the

matter , intended that personal culpability of citizens for serious wrongdoing with consequential implications for their good name

should be decided in the course of an enquiry which was part of the political process. The risks inherent in such a process were

adverted to in the document prepared by the Office of the Attorney General (which was submitted to the Court) and contained

in the Comparative study into Tribunals of Enquiry and Parliamentary Inquiries published by the Committee of Public Accounts of

Dáil Éireann. In that document it was stated:

"However, by definition, Parliamentary Inquiries are constituted by persons who have strong views as to the matters

into which they enquire, and indeed they will frequently have publicly expressed those views.

It is difficult to predict how the Courts will reconcile the right of persons called before such committees to have an

impartial hearing with the political reality that the persons comprising same will not be unbiased in the sense in which

the term would generally be legally understood. The probability is that a distinction will be drawn between a

parliamentary inquiry in which an allegation of wrongdoing against a person is being investigated, and those in which

issues of a broader nature are considered. In relation to the former, an interest in, or expressed opinion on, the subject

of the inquiry might preclude participation; with regard to the latter it is difficult to see how this could be so. Even then,

some latitude could be expected, to reflect the nature of the institution itself.

However, this is probably the critical points in so far as the decision might be made in certain circumstances to convene

a Tribunal of Inquiry, rather than investigation by a select committee. There are some situations in which members of

the Oireachtas cannot provide an impartial and unbiased hearing, and which therefore as a matter of law, it is difficult to

see how a parliamentary inquiry can take place. This difficulty is not as present in relation to tribunals established under

the 1921 Act”.

Somewhat similar concerns, although from a different perspective, were echoed in the affidavit of Mr Sean Cromien filed in

these proceedings. Mr Cromien is a person of great experience in the functioning of Government and the Oireachtas and has a

distinguished reputation as a former Secretary of the Department of Finance. At paragraph 14 of his affidavit he makes the

following comments on the functioning of parliamentary committees:

“14. During my long working association with Ministers I developed the greatest respect for them in the discharge of

their political duties. This respect extends to the members of the various Oireachtas Committees which I have been

privileged to attend. As both a civil servant and a private citizen I have appreciated the importance of strong

Parliamentary Committees as a restraint on the powers of the Executive.

As illustrated in this case I have, however concerns abut the way in which the developing activities of these committees

may lead to the good name, reputation, privacy and livelihood of citizens being damaged. The very political effectiveness

of politicians, which is based on their closeness to public opinion as expressed both directly and through the media, and

the ability to respond quickly and effectively to it, is likely to be a drawback where politicians are expected to operate in

a quasi-judicial manner, as in this inquiry by the sub-committee.

My experience reinforces these concerns. It is difficult for politicians to cease, even temporarily, to be politicians. For

example, the Public Accounts Committee, in questioning accounting officers, generally acts in an all party manner and

members avoid making party political points. However, it is the experience of accounting officers that occasionally on an

issue of major political controversy, they are asked questions by opposition deputies on the committee which are meant

to elicit an answer which can be used to criticise the Government of the day. The Government Deputies then ask other

questions which are meant to support government policy. I can recall actual incidents of this type relating, for example,

to the allocation of the surplus on the National Lottery and the sale of Carysfort College. Another example arises in the

report of the Public Accounts Committee Inquiry into DIRT. This was widely acclaimed in the media. However, it was also

criticised for not dealing effectively with the role of politicians in the 1980s in allowing tax evasion to thrive. For example,

the Irish Times editorial of 16th December, 1999, while praising the report added:-

'The weakness of the report lay in its bland exoneration of a succession of Ministers for Finance who failed to

recognise or deal with a major financial scandal that reached into all corners of society. Effectively the report

blamed officials for the mess and insisted there was no failure of political will. It was a self-serving conclusion.'

I accept the inference of this in that I believe the DIRT Report was not a totally independent examination of all the

issues, as an independent tribunal would be".

Mr Cromien’s observations seem to me to underline the necessity of taking into account potential and inherent frailties in such a

parliamentary system of inquiries when considering whether it is likely that the Constitution contemplated such a system.

Perhaps I should emphasise that I am not concerned here with any question of objective or structural bias which would exclude

the possibility of such powers of inquiry being attributed to members of the Oireachtas but rather whether, in the absence of an

express provision, such a far reaching interpretation can be implied as being inherent in the Constitution.

However the foregoing extracts demonstrate that there is at least a real risk that the integrity or objectivity of parliamentary

inquiries could be compromised by purely political considerations. It was the reality of such frailties that brought the

parliamentary committee system in Britain into disrepute. It is difficult to imagine that the framers of the 1922 Constitution

would not have been aware of this factor. Nor could one suppose that it was not considered by the drafters of the 1937

Constitution. The views expressed in the document of the Office of the Attorney General appears to envisage that in certain

circumstances, particularly where there is the risk of bias or of a parliamentary committee being perceived as being open to

political bias, that the Oireachtas, in the exercise of its own discretion, would resort to the option of an independent statutory

tribunal in lieu of an inquiry conducted by a committee of the Oireachtas. I find it highly improbable that the Constitution was

intended to confer an inherent power of this nature on the Oireachtas without expressly doing so or that, in the face of

potential frailties to which the two texts which I have just cited refer, it would have been impliedly left to the Oireachtas to

exercise its own exclusive discretion as to whether an inquiry which may result in findings of fact impugning the good name of a

citizen should be conducted by an Oireachtas Committee or an Independent Statutory Tribunal.

Neither can one ignore the fact that as and from the enactment of the 1922 Constitution and before the adoption of the 1937

Constitution the Oireachtas did have at its disposal means by which inquiries of this nature could take place, on its initiative,

which were independent of, as one American Judge put it, “the turbulent world of politics”. In Haughey v. Moriarty Hamilton,

C.J. observed “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” later in the same judgement Hamilton, C.J. went on to say “ 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”.

Hamilton, C.J. preceded the foregoing statements by citing from a report of a Royal Commission of Tribunals of Inquiry, 1966, in

the United Kingdom, known as the Salmon Report. The passage which he cited from that report was as follows:

“The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily exposed the

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

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

reasons, we are 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 is something in the nature of a nation-wide crisis of confidence. In such cases we consider that

no other method of investigation would be adequate”.

“The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are,

however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life

without which a successful democracy is impossible. It is essential that on the very rare occasions when crisis of public

confidence occur the evil, if it exists shall be exposed so that it may be rooted out; or if it does not exist, the public shall

be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they had been

disturbed. We are not satisfied that this would difficult if not impossible without pubic investigation by an Inquisitorial

Tribunal possessing the powers concurred by the Act of 1921”.

Hamilton, C.J. went on the observe that these considerations are also applicable in this jurisdiction.

The High Court in its judgement cited other extracts from the Salmon Report and they are also cited in the judgements of my

colleagues Geoghegan, J. and Hardiman, J. For the sake of brevity I will not repeat them here but any historical review of the

role of parliamentary committees of inquiry in the United Kingdom, as those judgments demonstrate, leads to the conclusion

that they had notoriously fallen into disrepute by 1921. It is difficult to envisage then that the Constitution of 1922 or that of

1937 would, silently, ordain that the Oireachtas should have power to establish and conduct inquiries and make findings as to

the personal culpability of individual citizens for serious wrongdoing.

As I have pointed out earlier when the Constitution gave specific and special powers to the Oireachtas to adjudicate on the

conduct of its own members and on other persons and office holders who were not members it did so explicitly. I think it can be

fairly said that if the Constitution intended to confer far reaching powers on the Oireachtas to inquire and make findings of fact

or express opinions as to the personal culpability of individual citizens for serious wrongdoing it would have also done so in an

explicit manner.

Furthermore, not to confer such powers is entirely consistent, to my mind, with the existence of a power on the part of the

Oireachtas to initiate a tribunal of inquiry pursuant to the 1921 Act. The Oireachtas was not left without the means of taking

steps to ensure that any matter of public importance be the subject of a comprehensive and far reaching enquiry, albeit

independent of the political process.

Article 15.12 of the Constitution accords privilege to all utterances of members of the Oireachtas made in either house relying

on this article it was argued on behalf of the Appellants that is was open to any member of the House to make statements,

even of the most grave kind, impugning the good name and reputation of any citizen. This could be done under the protection

of privilege and immunity accorded to Members by the Constitution. It was submitted by the Appellants that to call in question

the powers of the subcommittee to conduct the inquiry on the grounds that the good name of the Respondents could be

impugned served little purpose if their good name could be equally impugned as individuals in a public debate under the privilege

of the Dáil or Senate chamber. I do not consider this argument to be well founded. First of all, we have here again an express

immunity conferred on the Members of the Oireachtas in specified circumstances, that is to say, utterances made in either

chamber. This contrasts with the inherent but silent power argued for by the Appellants. In any case the obligation to protect

and vindicate the good name of every citizen is imposed on the State which includes all organs of State. Although Members of

the Oireachtas are expressly privileged from being answerable for what they state in the Dáil or Seanad they are not relieved

from their positive obligations to respect the rights of citizens. No doubt it is for this reason that Dáil Éireann in its own standing

orders regulates the manner in which deputies may use the privilege of the House. Order 58 exposes a deputy, who makes an

utterance of a defamatory nature concerning any individual in the House to the risk of being disciplined for an abuse of privilege.

In certain circumstances the deputy may be required to withdraw the allegation made or the matter may be referred to the

committee on procedures and privileges. I do not consider it necessary to refer to Order 58 in detail. Suffice it to say that I do

not consider that the privilege enjoyed by Members of the Oireachtas in respect of their utterances can be considered as a

source of implied powers for committees of inquiries established by the Oireachtas.

Conclusion

The exercise of all governmental powers in the name of the State, by which ever organ of government is called upon to exercise

them, can only be exercised by virtue of the Constitution of Ireland. In Buckley and Others (Sinn Féin) v. Attorney General and

Another [1950] I.R. 67 at 81 the former Supreme Court held:

"Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people,

and it further provides that these powers of government are exercisable only by or on the authority of the organs of the

State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in the State,

all powers of government should be exercised in accordance with the well-recognised principle of the distribution of

powers between the legislative, executive, and judicial organs of state and to require that these powers should not be

exercised otherwise."

The Appellants sought to establish that in distributing powers of government among the various organs of state the Constitution

conferred an implied or inherent power on the Oireachtas to conduct inquiries which may make findings or reach conclusions

impugning the good name of the citizens. For the reasons stated above, in particular having regard to the express powers

actually conferred on the Oireachtas and the specific protection afforded to the good name of the citizen by Article 40, I

conclude that had it been intended that the Oireachtas, as part of the political process, should exercise such far-reaching

powers of inquiry the Constitution would have explicitly said so. I do not find in the provisions of the Constitution itself any

basis for concluding that the existence of an inherent power to conduct such inquiries is either an appropriate or mandated

interpretation.

By way of addendum I would recall that the document prepared by the Office of the Attorney General referred to above drew a

particular distinction between a Parliamentary Inquiry in which an allegation of wrongdoing against a person is being investigated

and those in which issues of a broader nature are considered. In the circumstances of this case we are only concerned with an

inquiry which may make findings of personal culpability impugning the good name of an individual citizen. I do not see any reason

why the Oireachtas cannot conduct inquiries of the nature which they have, for practical purposes, traditionally done, including

inquiries into matters concerning the competency and efficiency in departmental or public administration as well as such matters

as those concerning the proper or effective implementation of policy, and to make findings accordingly. Also, in the case of a

particular office holder, such as the chief executive of a semi-state body, who is by virtue of his appointment, whether by

statute or contract, answerable to the Houses of the Oireachtas different considerations arise and I do not consider that the

order proposed to be made by this Court affects such a situation.

Furthermore, as Mr. Justice Hardiman illustrates in his judgment in considering the New Zealand experience it is possible for a

parliamentary committee to conduct an indepth investigation of a large police operation and make extensive findings and

recommendations of great public and legislative import without the necessity of making findings of personal culpability of

individual police officers.

Statutory provisions and analogy with tribunals.

As an aid to the construction of the provisions of the Constitution the Appellants relied on a range of statutory provisions

facilitating the conduct of inquiries which, although they did not confer or purport to confer a power on Oireachtas committees

to conduct the kind of inquiry in question, were nonetheless said to be evidence of the existence of such an inherent power in

the Constitution. It was also argued that in so far as the Oireachtas had the power to initiate or establish tribunals of inquiry

pursuant to the 1921 Act it must also have power to constitute committees of inquiries composed of its own members with the

same or similar powers. I have had the opportunity of reading the judgments of Hardiman J. and Geoghegan J. on both of these

submissions and the related case law. I agree with their reasoning and analysis of the law on these submissions and that they

do not demonstrate the existence of an inherent power.

Other Parliaments

As a further aid to the construction of the Constitution, and they cannot be described as more than that, the Appellants relied

on constitutional arrangements and powers in other countries. They confined themselves essentially to countries whose

domestic legal system has its origins in the common law, although their constitutional structures may differ greatly, such as the

United States, the United Kingdom, Canada, Australia and New Zealand. The principal ground upon which reference was made to

the constitutional arrangements in these countries was with a view to establishing that the extensive inherent power of

parliament to enquire was a necessary adjunct to a representative parliament. The popular representative parliamentary

tradition is not solely the creature or tradition of countries whose internal legal system derives from the common law. No

attempt was made to demonstrate that countries other than the few mentioned enjoyed such inherent powers as a necessary

adjunct to the functioning of their parliaments. Constitutional structures are the product of history and tradition of each

individual country often influenced by the era and climate in which those constitutional structures are established or evolve. As

I have already indicated at best, as a matter of comparative law, they can only be aids in the construction of the Constitution.

No doubt for this reason it was not contended by the Appellants that characteristics and powers of the Parliament of the United

Kingdom were carried over into the 1922 Constitution to be subsequently reflected in the 1937 Constitution.

I will make one brief reference to the position in the United States in McGrain v. Doughtery (273 U.S. 135) Van de Vanter J.,

giving the opinion of the Court, had this to say:

"We are of the opinion that the power of inquiry - with the process to enforce it - is an essential and appropriate

auxiliary to the legislative function. It was so regarded and implied 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". (emphasis added)

This extract highlights a fundamental aspect of the United States experience and the constitutional interpretation given to the

powers of Congress in this context. It is firmly anchored in historical experience, including those of state legislatures, before the

Constitution of the Union was adopted as well as the position adopted by the framers of the American Constitution

subsequently. These experiences are unique to the United States and it seems to me that judicial pronouncements have to be

interpreted in the light of that experience. However, Hardiman J. Geoghegan J. have extensively and comprehensively analysed

the parliamentary powers relevant to the countries concerned. Entirely agreeing with their analysis upon these matters, as I do

with their judgments on the question of inherent power, it makes it unnecessary for me to travel over the same ground and

repeat the same conclusions which they have so clearly exposed in their judgments. Suffice it to say that for the reasons

referred to above and set out in their judgments I do not find in the constitutional arrangements of the countries concerned a

basis for concluding that the inherent power argued for is one necessarily exercised by a legislature in a democratic state. Nor

does an examination of their constitutional arrangements affect my view as to the proper interpretation of the Constitution of

Ireland.

Decision

The Constitution delineates the democratic framework of the State. It specifies the powers which are conferred on the organs

of Government referred to in Article 6, the Executive, the Legislature and the Judiciary. It protects and guarantees the

fundamental rights of the citizen and in particular requires the State to vindicate the good name of the citizen.

For all the reasons stated earlier in my judgement, if the Oireachtas is to exercise the power to establish committees of inquiry

so as to make findings of fact and reach conclusions involving personal culpability of individual citizens for alleged wrongdoing of

the gravest kind and thereby impugning the good name of a citizen, that power must be found in the Constitution. In the

absence of any express provision the Appellants have argued for an inherent power. For the reasons which I have given in my

judgement and given the silence of the Constitution on the matter it would appear to me, to borrow the words of Finlay, C.J. In

Web -v- Ireland (1998 IR 353 at p383) “inconsistent with the framework of the society sought to be created and sought to be

protected by the Constitution” that such a far reaching inherent power be implied in the Constitution.

Because I have reached the conclusion that no such inherent power exists the Appeal of the Appellants should be disallowed

and I agree with the proposed declaration and order set out in the judgement of Denham, J. In the circumstances I do not

consider it necessary to deal with the other issues which were raised on the appeal no order being required in respect of them.