Parliamentary inquiry tainted by objective bias due to members' prior media statements on the subject matter.

THE SUPREME COURT

JUDICIAL REVIEW

2001 Record No. 329 JR

Appeal Record No. 324, 326, 333, 334/01

Keane C.J.

Denham J.

Murphy J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

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, SINÉAD CONNIFFE AND FRANK REYNOLDS

APPLICANTS AND 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. ENRIGHT, EDDIE BOHAN, HELEN KEOGH, TONY KETT AND

KATHLEEN O’MEARA, MEMBERS OF THE JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE & WOMEN’S RIGHTS BEING

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

WOMEN’S RIGHTS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS AND APPELLANTS

Judgment of Mrs Justice McGuinness delivered on the 11th day of April 2002

Introduction

This is an appeal against the judgment and order of the Divisional Court of the High Court of 23rd November 2001 concerning a

Sub-committee of the Joint Committee of the

Oireachtas on Justice, Equality, Defence and Women’s Rights. This Sub-committee (“the Abbeylara Sub-committee”) had

embarked on an inquiry into the incidents which occurred at Abbeylara, Co. Longford, on the 19th/20th April 2000 and which

culminated in the death of Mr John Carthy at the hands of the Gárda Siochana.

The procedures and powers of the Abbeylara Sub-committee were challenged in the High Court by a number of members of the

Gárda Siochana who had been directed by the Sub-committee (pursuant to its powers under the Committees of the Houses of

the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 - “the 1997 Act”) to appear as witnesses at

the proposed inquiry.

At the conclusion of a lengthy and careful judgment the Divisional Court made Orders of Certiorari firstly quashing the resolution

of the Joint Oireachtas Committee on Justice, Equality, Defence and Women’s Rights made on 10th April 2001 extending the

terms of reference of the Abbeylara Sub-committee and secondly quashing the directions to the members of the Gárda

Siochana (the Gárda Applicants) requiring them to attend before the Abbeylara sub-committe and to give evidence and produce

documents. The Divisional Court also made a number of Declarations. The most far-reaching of these Declarations was the

first:-

“The conduct of a Public Inquiry with the aid of the power of the State and conducted by members of the Oireachtas

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

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

the powers of such Houses.”

Against this judgment and these orders and declarations the Appellants/Respondents have appealed. There were three separate

but related Appellants before this Court who made both written and oral submissions - the Attorney General, the members of

the Abbeylara Sub-committee other than Deputy Alan Shatter, and Deputy Alan Shatter.

The Chief Justice in his judgment has helpfully set out in some detail the factual and procedural history of the Oireachtas Sub-

committee inquiry into the events at Abbeylara. The Inquiry was initiated by a resolution of the Dail of 25th October 2000:-

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

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

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

Committee.”

On the same day the Seanad resolved:-

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

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

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

Committee.”

During March and April 2001 a number of amendments and extensions to these resolutions were made. These are set out in

detail in the judgment of the Chief Justice. The actual Inquiry before the Sub-committee began on 24th April 2001. From the

beginning queries in regard to its powers and challenges to its procedures were raised, in particular by Counsel for the Gárda

Applicants, Mr John Rogers. On 26th April 2001 the Inquiry was adjourned until the following Monday, 30th April. On that day it

was announced that further hearings would be adjourned for thirty days. On 21st May 2001 the Gárda Applicants initiated the

present proceedings by application for leave to apply for relief by way of judicial review.

In the course both of the hearing before the Divisional Court and of the appeal to this Court a number of important issues

concerning aspects of the powers and procedures of the Abbeylara Sub-committee were raised and argued. The main issue,

however, was that covered in the first Declaration made by the Divisional Court. Indeed, this was the only aspect of the Order

of the Divisional Court which was challenged by the Attorney General in his appeal. I propose to deal first with this main issue

and subsequently to consider a number of the other issues which, although in one sense subsidiary, are also of considerable

importance to the future of inquiries initiated or carried out by the Oireachtas.

The Respondents to this appeal (the Gárda Applicants) have issued a Notice to Vary which in essence deals with the question

of bias. I will consider this issue towards the conclusion of this judgment.

The Power of Inquiry

Before embarking of any consideration of this issue I should acknowledge that I have had the benefit of reading in draft form

the judgments of Hardiman J. and Geoghegan J. which I have found extremely helpful both in their analysis and in their

conclusions. To a large extent I find myself in agreement with them. Where, therefore, my learned colleagues have discussed in

detail a particular aspect of this question and have reached conclusions with which I agree I will not endeavour to repeat the

argument on this particular aspect.

Given the declaration made at No. 1 of the Order of the Divisional Court, the issue then is whether under the Constitution the

Houses of the Oireachtas jointly have the power to conduct an Inquiry, to be carried out by members of the Oireachtas itself,

which is “liable to result in finding of facts or expression of opinion adverse to the good name, reputation and/or livelihoods of

persons not members of such Houses.” The declaration made by the Divisional Court is in wide and general terms and for the

purposes of the instant appeal it may only be necessary to decide whether the power exists for this particular Sub-committee

to conduct this particular inquiry. In order, however, to reach such a limited conclusion it is, in my view, necessary to look at

the question of a general power of inquiry on the part of the Houses of the Oireachtas. This must be looked at in the context of

the powers of the Oireachtas under the Constitution, whether express or implied.

It is accepted by all parties that there is no explicit power given in the Constitution to the members of the Oireachtas to carry

out inquires. Any such power must be inherent or implied. There is nothing wrong in principle in accepting that such powers

exist. They may be compared with the implied or inherent rights which accrue to the individual citizen under the Constitution.

However, such implied or inherent rights must be shown to arise necessarily either from the nature of the Oireachtas itself or

from some role or task given to the Oireachtas through the Constitution.

In both the written and oral submissions made to this Court by the Appellants and the Respondents there were detailed

discussions concerning the history of powers of inquiry of the Parliaments of other jurisdictions, in particular those of the

Westminster Parliament and of the United States Congress. This historical and comparative aspect of the issue has been

comprehensively considered by Geoghegan J. in his judgment and I am in agreement with his analysis and his conclusions.

Considerable reliance was placed in argument by the Appellants on the judgments of this Court in Goodman International v Mr

Justice Hamilton [1992] 2 IR 542 and Haughey v Moriarty [1999] 3 IR 1. Both these judgments have been fully discussed by

Hardiman J. and Geoghegan J. in their judgments. I am in agreement with their conclusions and have nothing to add to their

analyses of these judgments.

Both Hardiman J. and Geoghegan J. have also analysed the meaning and effect of the judgments of the United States Supreme

Court, in particular Kilbourn v Thompson 102 U.S. 168 (1880), McGrain v Daugherty 273 U.S. 153 (1927) and Watkins v United

States 354 U.S. 178 (1957), which deal with the powers of enquiry possessed by the United States Congress. Again I am in

agreement with both learned judges and have nothing to add on this aspect of the issue.

It seems to me, accepting this analysis, that if an inherent or implied power of inquiry exists it must be found within the four

walls of Bunreacht na hEireann, as enacted by the people of Ireland in 1937 and as amended by them since that date. The

powers of the Oireachtas stem, through the Constitution, from the people. The role of the Oireachtas is explicitly set out in the

Constitution and any implied powers should be derived from this explicit role or, at the least, clearly and directly necessary to it.

This approach is largely accepted by the Attorney General in his submissions on the appeal (it will be recalled that his appeal is

limited to the first declaration made by the Divisional Court). The Attorney General drew particular attention to a passage in the

Opinion of Chief Justice Warren in Watkins v United States (at page 187):-

“We start with several basic premises on which there is general agreement. The power of the Congress to conduct

investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the

administration of existing laws as well as proposed or possibly needed Statutes. It includes surveys of defects in our

social, economic, or political system for the purpose of enabling the Congress to remedy them. It comprehends probes

into Departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as this power of

inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in

terms of the functions of Congress. This was freely conceded by the Solicitor General in his argument of the case. Nor is

the Congress a law enforcement or trial agency. These are functions of the Executive and Judicial Departments of

Government. No inquiry is an end in itself: it must be related to, and in furtherance of, a legitimate task of the

Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those

investigated are indefensible.”

The Attorney General submitted that this passage reflected his general approach to the question. The Attorney General,

however, would not limit the power of inquiry as being confined to aiding the legislative power of the Oireachtas as set out in

U.S. Supreme Court decisions. In our system of Government, he suggested, the Dail and Senate have a legislative function,

while the Dail alone has the additional function of scrutinising the Government and holding it to account and also has a number

of functions in relation to financial matters - the passing of estimates, the budget etc. The Attorney General argued that a

power of inquiry should be implied in aid of any or all of these functions, but accepted that such a power would have to be

proportionate both to the actual requirements of the Oireachtas and to the rights of those who are not members of the

Oireachtas. As far as the Abbeylara Sub-committee was concerned, he submitted that its proposed inquiry was in aid of the

Oireachtas role of holding the Government to account - the Gárda Siochana being ultimately responsible to the Minister for

Justice, Equality and Law Reform, and through him to the Dail. This argument, of course, suffers from the weakness that only

the Dail has the function of holding the Government to account, while the Abbeylara Sub-committee is a joint Sub-committee of

both Houses. When pressed in argument, the Attorney General was reluctantly prepared to concede that the task of holding the

Government to account was not proper for a joint Sub-committee and that therefore the Senate membership of the Abbeylara

Sub-committee was at the least doubtful.

During the course of argument before this Court the Court was provided with an analysed list of the specific references to the

role and powers of the Oireachtas as set out in the Constitution. It is useful to reproduce this list here.

“CONSTITUTIONAL POWERS AND FUNCTIONS OF THE HOUSES OF THE OIREACHTAS

(A) LEGISLATIVE FUNCTIONS OF THE OIREACHTAS - DÁIL AND SEANAD

- Article 15.2: “The sole and exclusive power of lawmaking is hereby invested in the Oireachtas: no other legislative

authority can make laws for the State”.

w Limited by Article 15.4: “The Oireachtas shall not enact any law which is, in any respect, repugnant to the

Constitution....”and

- Article 15.5: “The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of

their commission”.

w See also Article 29.6: “No international agreement shall be part of the domestic law of the State save as may be

determined by the Oireachtas”.

w See also Articles 20-24 - Procedures for Legislation.

(B) FUNCTION OF HOLDING GOVERNMENT TO ACCOUNT - DÁIL ALONE

- Article 28.4.1: “The Government shall be responsible to Dáil Éireann”.

- Article 13.1.1: “The President shall, on the nomination of Dáil Éireann, appoint a Taoiseach”.

- Article 13.1.2: “The President shall...with the previous approval of Dáil Éireann appoint the other members of the

Government”.

- Article 28.3.1: “War shall not be declared and the State shall not participate in any war without the assent of Dáil

Éireann”.

- Article 28.7.1: “The Taoiseach, Tanaiste and the member of Government who is in charge of the Department of

Finance must be members of Dáil Éireann”.

- Article 29.5.1: “Every international agreement to which the State becomes a party shall be laid before Dáil Eireann”.

(C) FUNCTION IN RELATION TO FINANCIAL MATTERS - DÁIL ALONE

- Article 29.5.2: “The State shall not be bound by any international agreement involving a charge on public funds

unless...approved by Dáil Éireann”.

- Article 28.4.4: “The Government shall prepare estimates and present them to the Dáil for consideration”.

- Article 17.1.1: “As soon as possible after presentation to Dáil Éireann under Article 28 of the estimate, Dáil Éireann

shall consider such estimates”.

- Article 17.2: “Dáil Éireann shall not pass any vote or resolution...for the appropriation of revenue unless recommended

to Dáil Éireann by message from the Government signed by the Taoiseach”.

- Article 21: “Money bills shall be initiated in Dáil Éireann only”.

- Article 21.1.2: “Money bills...shall be sent to the Seanad for its recommendations”.

- Article 33.2: “The Comptroller and Auditor General shall be appointed by the President on the nomination of Dáil

Éireann”.

(D) REPRESENTATIVE FUNCTION OF THE OIREACHTAS

(a) Dáil - Direct

- Article 16.1.2: “All citizens and such other persons shall have the right to vote in an election for members of Dáil

Éireann”.

- Article 16.2.1: “Dáil Éireann shall be composed of members who represent constituencies”.

- Article 16.2.2: “not less than one member for each 30,000 of the population”.

- Article 16.2.3: “The ratio...shall, so far as is practicable, be the same throughout the country”.

(b) Seanad - indirect

- Article 18.1: ’60 members, 11 nominated, 49 elected”.

- Article 18.4.1: “Elected - 6 university and 43 from panels”.

(E) OBLIGATION OF BOTH HOUSES TO CONDUCT BUSINESS IN PUBLIC

w Article 15.8.1: “Sittings of each House shall be in public. The Houses can enter private session in cases of emergency

with two-thirds resolution.

(F) PRIVILEGES OF OIREACHTAS

Right to make own rules and standing orders from molestation and privilege for utterances.

Article 15.10: “Each House shall make its own rules and standing orders, with power to attach penalties for their

infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private

papers of its members, and to protect itself and its members against any person or persons interfering with, molesting

or attempting to corrupt its members in the exercise of their duties”.

Article 15.12: “All official reports and publications of the Oireachtas or of either House thereof and utterances made in

either House wherever published shall be privileged.

Article 15.13: “The members of each House of the Oireachtas shall, except in case of treason as defined in this

Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within

the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or

any authority other than the House itself.

(G) MISCELLANEOUS FUNCTIONS OF THE OIREACHTAS

Exclusive right to raise and maintain armed force (Article 15.6).

Impeachment to a Judge to the Supreme Court or High Court for stated misbehaviour and capacity - (Article 35.4).

Impeachment of the President - (Article 12.10)

Article 13.8.2: “The behaviour of the President may...be brought under review or either in the Houses of the Oireachtas

for the purposes of Section 10 of Article 12 of the 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.”

In my view there is much to be said for the argument put forward by the Attorney General although, as I will point out later, I

would further limit the type of inquiry to be carried out in aid of the functions of the Dail and Seanad. It is clear that general

inquiries have in fact been carried out over the years both by Committees of the individual Houses and by Joint Committees of

the Oireachtas. These inquires have in general been directed towards future legislation or possible future amendment of the

Constitution. A few examples demonstrate: the Committee on the Constitution 1967, the Joint Oireachtas Committee on

Marriage Breakdown 1987, the Sub-committee on Health and Smoking and the All-Party Oireachtas Committee on the

Constitution. These Committees have relied on voluntary submissions and willing witnesses but there is in fact no reason why

such enquiries should not use the powers of the 1997 Compellability Act to obtain necessary evidence and information. As far as

the Dail’s functions in relation to financial matters are concerned the Public Accounts Committee maintains this function and

was, of course, the Committee who carried out the Inquiry into Deposit Interest Detention Tax (DIRT). It would, however, be a

mistake to make too direct a comparison between the DIRT Inquiry and the Inquiry under consideration in the instant case.

Firstly the Public Accounts Committee is a Standing Committee of Dáil Eireann with a long established and continuing role. Under

its terms of reference it is appointed to examine a report to the Dáil on “the accounts showing the appropriation of the sums

granted by the Dáil to meet the public expenditure and such other accounts as they see fit...which are audited by the

Comptroller and Auditor General and presented to the Dáil, together with any reports by the Comptroller and Auditor General

thereon; the Comptroller and Auditor General’s reports on his or her examinations of economy, efficiency, effectiveness

evaluation systems, procedures and practices; and other reports carried out by the Comptroller and Auditor General” under

the Comptroller and Auditor General (Amendment) Act 1993.

Secondly, in the case of the DIRT Inquiry the Public Accounts Committee was reliant on specially enacted legislation and on the

specific and detailed investigative work of the Comptroller and Auditor General which was carried out under that legislation

before the Committee itself began its inquiry. (Comptroller and Auditor General and Committees of the Houses of the Oireachtas

(Special Provisions) Act 1998). I will refer to this aspect of the power of inquiry later when I examine some of the documentary

material in this connection which was provided to the Court by the Attorney General.

The Respondents argue that there is a limit to this power of inquiry. They submit that there is no inherent power to be found in

the Constitution which would permit a body composed of members of the Oireachtas themselves to carry out an inquiry which

purports to make “findings of fact” which would, or could, damage the good name of individuals who are not members of the

Oireachtas. The Divisional Court accepted this argument and granted its declaration accordingly. The Declaration made by the

Divisional Court is broad in nature and a number of Committees or Sub-committees of the Oireachtas might fall within its ambit.

The issue before this Court, it seems to me, is whether this particular Sub-committee - the Abbeylara Sub-committee - carrying

out the inquiry which the Sub-committee itself proposes by the means it proposes and with the end it proposes - falls within

the ambit of the inherent power of the Oireachtas to acquire information in aid of its constitutional functions.

Firstly, the Abbeylara Sub-committee is a joint Committee, not a Sub-committee of the Dail. Its proposed inquiry must therefore

be in support of a function which is carried out by both Dail and Seanad. This, as is conceded, albeit reluctantly, by the

Attorney General, can only be the legislative function. I would reject the submission of Deputy Shatter and the other members

of the Sub-committee that the Sub-committee’s powers of inquiry are virtually without limit. I would also reject his submission

that the inquiry was in fact in aid of possible legislation concerning the organisation and management of the Gárda Siochana. In

my view, if an inquiry is to be in support of the legislative functions of both Dáil and Seanad, its investigative and legislative

aims must be clearly set out in its terms of reference.

The terms of reference of the Abbeylara Sub-committee on the other hand at no stage contained any reference to either the

amendment of existing legislation or the promotion of new legislation. It might conceivably be argued that the original

resolutions of the Houses, which directed the main Committee and its Sub-committee to consider the report of Superintendent

Culligan and the submissions received concerning it, could be directed towards possible proposals for legislative change

concerning the structure, management and control of the Gárda Siochana. It is, however, a strained interpretation and as

matters developed the Sub-committee moved further away from this legislative purpose. It is abundantly clear from the

statements made by the members of the Sub-committee, the powers with which they had provided themselves, and the

programme which they had laid out for their inquiry, that they did not see themselves as having a legislative purpose. By no

stretch of the imagination could the type of inquiry which the Abbeylara Sub-committee actually intended to carry out be

described as primarily, or indeed even peripherally, directed towards producing proposals for legislation. The type of inquiry

which the Sub-committee envisaged is clearly shown not only in the amended Terms of Reference and the extended powers

which it acquired but also in the public statements made by its members to the media and in the very transcripts of its

proceedings. The Sub-committee could not and did not, of course, administer justice, but it clearly saw itself as having an

inquisitorial and adjudicative role in relation to the culpability of individuals, in particular individual Gárdai. Its self-appointed task

was to find the facts and to attribute blame by way of a public and deliberately publicised procedure.

In this context I have had the advantage of reading Hardiman J’s careful analysis of the significance of the term“findings of

fact” and the adjudicative nature of the Sub-committee’s role, and I agree with his reasoning and conclusions.

In argument before this Court it was submitted on behalf of the members of the Sub-committee that the term “findings of fact”

used by the Sub-committee in reality meant merely “opinions”. Their findings, they argue, can be no more than “opinions”

because they have no legal effect and no legal penalty follows from them. This is true, but it does not, as is pointed out by

Hardiman J., mean that their findings are without effect. Their findings would be the result of an inquisitorial process, held in

public, and in reality would be accepted by the public at large as being “the true facts”. This would have the power to inflict

enormous damage on the individual Gárdai involved. The power of a Committee of Inquiry to damage an individual without

inflicting any legal penalty was well described in the Supreme Court of the United States by Mr Justice Black in his dissenting

Opinion in the case of Barenblatt v United States (360 US 109: 1958). The Appellant in that case, Mr Barenblatt, had been

summoned to testify before a Sub-committee of the House of Representatives Committee on Un-American activities, which was

investigating alleged communist infiltration into the field of education. Mr Barenblatt who was formerly a graduate student and

teaching fellow at the University of Michigan refused to answer questions as to whether he was then or had ever been a

member of the communist party. For such refusal he was convicted of a violation of 2 U.S.C. paragraph 192, which makes it a

misdemeanour for any person summoned as a witness by either House of Congress or a committee thereof to refuse to answer

any question pertinent to the question under enquiry. He was fined and sentenced to imprisonment for six months. This

conviction was upheld by a majority of the Court, but in a powerful dissenting judgment, in which he was joined by Chief Justice

Warren and Mr Justice Douglas, Mr Justice Black drew attention to the fact that the Sub-committee in question was in fact

punishing witnesses who appeared before it even though in theory their activities were without legal effect. Black J. stated (at

page 153):-

“Finally, I think Barenblatt’s conviction violates the Constitution because the chief aim, purpose and practice of the

House Un-American Activities Committee, as disclosed by its many reports, is to try witnesses and punish them because

they are or have been communist or because they refused to admit or deny communist affiliations. The punishment

imposed is generally punishment by humiliation and public shame. There is nothing strange or novel about this kind of

punishment. It is in fact one of the oldest forms of governmental punishment known to mankind; branding, the pillory,

ostracism and subjection to public hatred being but a few examples of it.”

The learned judge went on to survey the history of the Un-American Activities Committee. At page 159 he concluded:-

“I do not question the Committee’s patriotism and sincerity in doing all this. I merely feel that it cannot be done by

Congress under our Constitution. For, even assuming that the Federal Government can compel witnesses to testify as to

communist affiliation in order to subject them to ridicule and social and economic retaliation, I cannot agree that this is

a legislative function. Such publicity is clearly punishment, and the Constitution allows only one way in which people can

be convicted and punished. As we said in Lovett, ‘those who wrote our Constitution well knew the danger inherent in

special legislative Acts which take away the life, liberty or property of particular named persons because the Legislature

thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from

punishment without trial by duly constituted Courts.’ 328 U. S. at 317...”

Black J. was, of course, referring to a form of punishment which affected the constitutional rights of life, liberty or property. In

Bunreacht na hÉireann the citizen is also recognised to have a right to the protection of his good name.

In his judgment Black J. also went on to hold that the problem of this type of punishment could not be resolved by offering fair

procedures to the witnesses that were brought before the Sub-committee (at page 160):-

“It is no answer to all this to suggest that legislative committees should be allowed to punish if they grant the accused

some rules of courtesy or allow him Counsel. For the Constitution proscribes all Bills of Attainder by State or Nation, not

merely those which lack Counsel or courtesy.”

The Supreme Court Justices in the United States were referring to the notorious practices of the House Un-American Activities

Committee led by Senator Joseph McCarthy and it is not suggested that the Abbeylara Sub-committee would behave with

malevolence or that their inquiry is a witch hunt comparable to that carried out by the House Un-American Activities Committee.

Nevertheless, their proposed “findings of fact” have immense potential to damage the good names, careers, and livelihoods of

the Gárda Applicants. I accept that the Oireachtas must clearly have such powers as are relevant to and necessary for the

carrying out of its constitutional functions. But these powers must be proportionate to the need for them and must be balanced

against the rights of individual citizens who are not members of the Oireachtas.

The right to protection of one’s good name is one of the fundamental personal rights expressly set out in Article 40 of the

Constitution. Article 40.3.1 and Article 40.3.2 provide:

“40.3.1 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.

40.3.2 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.”

This constitutional right to protection of one’s good name is not one which is found in by any means all statements of basic

human rights. The rights to protection of one’s life, person and property are much more universal in constitutional statements of

rights or Bills of Rights throughout the world. The right to protection of one’s good name is not specifically found, for instance,

in the European Convention on Human Rights. It is not included as a right in the United States Constitution; nor is it included in

the Canadian Charter of Rights and Freedoms contained in the Constitution Act 1982, nor in the Commonwealth of Australia

Constitution Act 1900. The inclusion of this specific right in the Irish Constitution marks a recognition by the framers of the

Constitution of the damage that can be done to a citizen even in a situation where he or she is not subjected to legal penalties,

to loss of liberty or property, or to physical injury. In considering the balance which must be held between the rights of the

Oireachtas as such and those of the individual citizen, and the priorities which must be given to each, the right to protection of

the individual’s good name has to be given due weight.

Mr Shatter and the other Appellants argue that to protect the good name of the Gárda Applicants in the context of the Sub-

committee’s inquiry is of little meaning, given that they could be equally subjected to attack as individuals in a public debate

under privilege in the Dail Chamber. I cannot accept this argument in the light of Dail Standing Order No. 58 which specifically

and in detail sets out rules to protect members of the public outside the Dail from defamatory statements made under privilege

in the Dail Chamber. Mr Shatter and the other Appellants surely cannot be suggesting that members of the Dail would

deliberately break the rules of their own Standing Orders in the course of a debate on the Abbeylara incident. During the course

of argument in this Court I myself raised a question concerning the effect of this standing order but received a somewhat

minimal response from the Appellants. It is, however, discussed in greater detail in the judgments of both Hardiman J. and

Geoghegan J. and I concur with their analysis of it. I also agree with them in that I find it astounding that the Appellants should

endeavour to rely by way of legal argument on a proposed breach of the standing orders of the Houses of the Oireachtas. I

might also add that a claim made in the heat of a Dail Debate that a particular Gárda, or particular Gárdai, were individually

culpable in regard to Mr Carthy’s death would not carry anything like the weight of the published conclusions of a Committee of

Inquiry.

In the course of the submissions made by the Appellants various references were made to the effectiveness of the Inquiry by

the Public Accounts Committee concerning Deposit Interest Retention Tax. The implication appears to be that that Inquiry was

extremely successful and therefore it is likely that the Abbeylara Inquiry would be equally successful. In that context it is

relevant to consider the comparative study into Tribunals of Inquiry and Parliamentary Inquiries (including Costs Comparison

Report) which was carried out following the DIRT Inquiry. This study was carried out by the Attorney General’s Office and the

Department of Finance; it seems clear that the general part was provided by the Attorney General’s Office while the Costs

Comparison Section was provided by the Department of Finance. The report of the Comparative Study was included with the

Attorney General’s submissions to this Court. It is a most useful and informative document. It first surveys the legal framework

and practice and procedure of tribunals of inquiry and refers both to the Salmon Report and to the Scott Inquiry in the United

Kingdom.

The second part of the survey is devoted to Parliamentary Inquiries. In the introduction to this section attention is drawn to

the distinctive features of the DIRT Inquiry (features which are absent from the Abbeylara Inquiry):-

“It should be noted that the Dirt Inquiry took place under both the Committees of the Houses of the Oireachtas

(Compellability, Privileges and Immunities of Witnesses) Act 1997 and also the Comptroller and Auditor General and

Committees of Houses of the Oireachtas (Special Provisions) Act 1998. The Inquiry as it was conducted could not have

been carried out under the 1997 legislation alone. An integral part of the perceived success of the DIRT Inquiry was the

report furnished to the Committee of Public Accounts by the Comptroller and Auditor General. Without the seven months

of preliminary investigatory work of the Comptroller and Auditor General with the aid of auditors appointed under the

1998 Act, and the consequent report to the Public Accounts Committee, it is certain that the Sub-committee’s inquiry

would have taken a much longer period of time. The expertise available in the Comptroller and Auditor General’s Office

together with the specialist knowledge of the Auditors appointed under the 1998 Act did not reside within the Sub-

committee itself. Accordingly, the process by which evidence, documentation and records were garnered prior to the

public sittings of the Sub-committee was crucial to the success of the DIRT Inquiry. Without the ‘raw material’ from

which to start public sittings, it is difficult to see how the Sub-committee would have succeeded as it undoubtedly did.”

The survey accepts that Parliament’s power of inquiry is not statutory but inherent, and also that it may be subject to some

limitation - in effect the limitation put forward by the Attorney General in his submission to this Court (see above). It quotes

from the case of Watkins v United States:-

“It is manifest that despite the adverse effects which follow upon compelled disclosures of private matters, not all such

inquiries are barred. Kilbourn v Thompson teaches us that such an investigation into individual affairs is invalid if

unrelated to any legislative purpose. That is beyond the powers conferred upon the Congress in the

Constitution.....the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of

Rights”

At page 37 of the survey the authors comment:

“Accordingly, it can be strongly argued that the power of the Houses of the Oireachtas to undertake inquiries is limited

to its legislative, and in the case of Dail Eireann inquiries, constitutional functions. By contrast a Tribunal of Inquiry exists

to inquire and report and for that reason alone. The distinction is well illustrated in Haughey v Moriarty where the

plaintiff contended that the 1921 Act procedure was limited to inquiries to aid the legislative process. That argument

was rejected; the terms in which it was rejected (at page 55) are not inconsistent with such a limitation being imposed

on Parliamentary Inquiry.”

At page 39 of the survey, under the heading “other miscellaneous distinctions between Parliamentary Inquiries and Tribunals of

Inquiry” it is stated:-

“Although the choice as between a Tribunal of Inquiry and a Parliamentary Inquiry is primarily a matter of political,

rather than legal judgment, there may be circumstances in which a Parliamentary Inquiry would be quite inappropriate

as a matter of law, because of the difficulty of establishing a legislative or constitutional purpose (stated above as to

limitations to Parliamentary Inquiries), and it must be recognised that the Courts may look behind claims that a

Committee was undertaking certain inquiries for legislative or, in the case of the Dail, constitutional purposes and

conclude that the reality was that inquiries were being undertaken for the purposes of determining who did what why, or

for the purposes of political aggrandisement, or indeed that the subject matter of the inquiry was one in respect of

which an unbiased hearing was not possible before a Parliamentary Committee.”

In my view the above comments could most appositely be applied to the Abbeylara Sub-committee.

The survey is accompanied in the Attorney General’s submissions by the text of the Attorney General’s own Opening Statement

made to the Public Accounts Committee (Sub-committee on DIRT) on Tuesday, 28th November 2000. This statement shortly

preceded the publication of the survey referred to above. The Attorney General referred to the forthcoming survey, and

continued:

“It seems to me that it may be worthwhile, in the interim, to offer some tentative reflections to the Committee on the

general circumstances in which the Oireachtas and either House of it, may establish Committees or Sub-committees

with the purpose of legally requiring persons who are not members of either House of the Oireachtas to come before

them to testify and to produce documentary and other evidence.

A distinction must be drawn between the executive, legislative and judicial powers of the State which under Article 6 and

other articles of the Constitution are distributed between the Government, the Oireachtas and the Courts respectively.

These powers are distinct powers and are carefully ascribed by the 1937 Constitution to each of the three pillars of the

State in circumstances in which no single pillar of the State is entitled to invade the domain of the other.

I think that it may be that an arguable case can be made that the power of either House of the Oireachtas to exercise,

through a Committee, compulsory powers of attendance and testimony over ordinary citizens must be viewed as

ancillary to the functions of that House of the Oireachtas and not as a power without limit.”

Having referred to the possibility of choosing between a Parliamentary Committee and a Tribunal of Inquiry under the 1921 Act,

the Attorney General goes on to say:-

“In short, I do not believe and in the absence of a binding Supreme Court decision on the issue that it is possible to state

with total confidence as a matter of law that the establishment of a Tribunal is always merely a policy choice open as an

alternative to conducting an inquiry by a Parliamentary Committee. Nor is a Parliamentary Committee necessarily always

available as an alternative to the establishment of a Tribunal of Inquiry. The legal ambit of inquiry by a Tribunal may be

larger than that available to a Parliamentary Committee and the subject matter of a Tribunal of Inquiry with compulsory

powers may well, as a matter of law, turn out to be potentially wider than that which may be enquired into by a

Committee of either or both Houses of the Oireachtas.

Where there have been some Supreme Court decisions in this area, it would be a brave person who would advance the

proposition that any Oireachtas Committee as a matter of law can carry out any function which might properly be

vested in a duly constituted Tribunal of Inquiry.

If, as is at least arguable, the scope of Oireachtas Committees with powers of compellability is narrower than the

potential scope of inquiry of a Tribunal, the question then arises as to how the choice is made whether a particular

matter should be enquired into by one rather than the other. Can I advance, again tentatively, the possibility that since

compellability powers involve, at least potentially, the right to seriously infringe the freedom of the individual citizen, a

decision as to who should exercise such powers - Parliamentary Committee or a Tribunal - may have to be decided by

reference to the capacity of each of them to conduct the Inquiry in a manner which is proportionate to the subject

matter of the inquiry and, perhaps, the legal necessity for a genuine and demonstrable impartiality both in the conduct

of the inquiry and in the making of any report or the drawing of any conclusions based on it.”

Again, these remarks are highly relevant to a number of the issues which have arisen in this appeal. In this context I would, in

common with Hardiman J., express my agreement with the comments of Geoghegan J. on the affidavit of Séan Cromien in this

case. Mr Cromien, from the vantage point of his long experience as a senior civil servant, highlights the weaknesses of a

political system of inquiry.

It appears to me that both in his statement and in the survey the Attorney General offered wise and well considered advice

both legal and practical to the members of the Oireachtas. Unfortunately in its progress towards the “fact finding” inquiry as it

now stands the Abbeylara Sub-committee chose to ignore a great deal of this advice. A study of the transcripts of the

Committee’s proceedings would bear out this impression.

The text of the survey and of the statement also, in my view, underlines the fact that, as correctly if reluctantly conceded by

the Attorney General in argument, both the present remit of the Abbeylara Inquiry and the course of action taken by it go well

beyond any constitutionally-related and proportionate inherent power of a committee of both Houses of the Oireachtas.

By way of comment I would also ask, with due deference to the Sub-committee, why the present style of fact finding inquiry is

thought to be necessary for any purpose of the Houses of the Oireachtas? The members of the Sub-committee and Mr Shatter

argue that they must know the facts of what happened before they can comment or make recommendations. But in outline,

insofar as is necessary for their purposes, they know what happened - Mr Carthy was tragically shot dead by a member of the

Gárda Siochana. This was an undesired and more than undesirable outcome - an event which should not be permitted to occur

again. The Sub-committee already has before it the report of Superintendent Culligan which deals with many of the relevant

factual matters including the identity of the Gárdai involved.

In the circumstances it would be relevant for the Sub-committee to have regard to such matters as the policy of the Gárda on

the use of firearms, the licensing of firearms held by members of the public, the care of persons suffering from psychiatric

illness, and perhaps the need for an independent Ombudsman or other public official to deal with complaints concerning Gárda

matters. All of these matters would, in my view, come within the normal inherent power to enquire of at least a Committee of

the Dail, if not a Joint Committee. They would form part of the Dáil’s powers to hold the Government to account. In what way

would the making of recommendations for future policy or legislation in these matters be assisted by making findings of individual

culpability as to which shot actually killed Mr Carthy and as to which Gárda actually fired that shot? The Sub-committee claims,

inter alia, to include in its powers the power to make a finding of unlawful killing. Leaving aside the legal or other merits of such

a claim, in what possible way would such a finding assist in any of the constitutional functions of a Joint Committee of the

Oireachtas?

In this context it is instructive to consider the report of a Committee of the New Zealand Parliament into policing difficulties

which arose in that country at the time of a visit there by the President of China. Mr Shatter provided the Court with a copy of

this report, which he submitted, was an example of a parliamentary inquiry into policing matters which was of a similar nature to

the inquiry proposed to be carried out by the Abbeylara Sub-committee. In fact the nature of that inquiry was very different.

Crucially, it made no attempt to investigate the individual culpability of either police officers or members of the public. This did

not in any way prevent it from carrying out the task given it by the New Zealand Parliament and from making important and far

reaching general recommendations on the policing of such occasions in future (Inquiry into matters relating to the visit of the

President of China to New Zealand in 1999 - report of the Justice and Electoral Committee December 2000).

In conclusion, I would accept that the Dail and Senate, and the Houses of the Oireachtas jointly, have an important power to

enquire. This power is inherent in the Constitution but is a limited one. It may be implied solely and directly in aid of the

functions of each House of the Oireachtas as delineated in the Constitution itself. The power however does not extend to the

making of “findings of fact” concerning the individual culpability of non-members of the Oireachtas which involve damage to the

good name of such individuals. It does not, for the various reasons set out above, extend to the present inquiry as it is

proposed to be carried out by the Abbeylara Sub-committee. To that extent I would uphold the decision of the Divisional Court

at Declaration 1 of their Order.

It will be seen from the above that I would accept in general terms the additional grounds set out by the Respondents in their

Notice to Vary:

“1. That the Abbeylara Inquiry, not being in aid of the legislative function of the Houses of the Oireachtas, was ultra

vires such Houses.

2. That the Committee on Justice, Equality, Defence and Women’s Rights, being a Joint Oireachtas Committee, and

therefore including members of Seanad Eireann, could not lawfully conduct an inquiry for the purposes of discharging the

function of, or holding to account, the executive.”

Justiciability

The Divisional Court in its judgment dealt with the issue of the justiciability of various aspects of the general proceedings of the

Abbeylara Sub-committee. In argument before the Divisional Court the Appellants differed somewhat in their approach to this

issue. It was conceded by all the Appellants that certain aspects of the complaints made by the Gárda Applicants were capable

of being adjudicated upon by the Court. At page 34 of the judgment the Divisional Court stated in this context:

“They (the respondents in the High Court) concede that the Court is entitled to examine the procedures undertaken by

the Sub-committee in the conduct of its hearings so as to ensure that they comply with constitutional notions of

fairness. It is not surprising that such a concession was forthcoming since that is precisely what the Supreme Court did

in Re Haughey [1971] IR 217.

The respondents also accept that this Court has the power to entertain and adjudicate upon complaints concerning the

implementation of and compliance with the provisions of the 1997 Act. But they say that this is the limit of the Court’s

power. To give it a temporal limitation the reach of this judicial review cannot go back before the 11th April 2001 being

the day upon which consent was sought from the Compellability Committee. All other complaints are, they say,

incapable of being adjudicated upon by the Court because to do so would interfere with the separation of powers and

constitute an improper trespass by the Court into a realm which is exclusively a matter for Parliament.

The Attorney General takes a slightly different view. He contends that the Court can examine and construe the various

orders and resolutions which concern the Sub-committee insofar as they relate to the operation of the statutory powers

contained in the 1997 act. By references to the case of Cane v Dublin Corporation [1927] IR 582 he says that it may be

legitimate for the Court to construe the various resolutions and orders insofar as they impinge upon the exercise of the

statutory power. To give it a temporal limitation he accepts that it may be permissible for the Court to look to matters

prior to the 11th April 2001 and to construe the resolutions and orders.”

The Gárda Applicants, not unnaturally, claimed that all the matters before the Court were justiciable.

In a lengthy section of their judgment (pages 36 to 58) the learned judges of the Divisional Court surveyed the authorities both

in this and in other jurisdictions on the power of the Courts to intervene in the proceedings of parliamentary bodies. They

reached the following conclusions:-

“(1) The claim of non-justiciability is not supported by the express words of the Constitution itself. Notwithstanding the

detailed provisions of the articles of the Constitution dealing with the National Parliament, nowhere is there immunity

from review by this Court in the form in which it propounded by the respondents. That is in stark contrast to other

provisions of the Constitution which expressly so provide.

(2) Although the Constitution provides certain protections to, for example, members of Parliament concerning

utterances by them such provisions cannot be used to erect the edifice of non-justiciability which is contended for here.

(3) The plea of non-justiciability is inconsistent with the approach which has been taken by the Courts in this jurisdiction

in respect of the legislature when not exercising its law making power. In addition the claim is inconsistent with the

views of the two principal academic works on the topic.

(4) The claim is inconsistent with the approach taken by the United States Supreme Court in dealing with the rights of

persons who are forced to attend congressional hearings.

The Court holds that all of the complaints made by the applicants in these proceedings are justiciable and may be the

subject of examination by the Court.”

In the argument before this Court the positions taken by the Appellants had somewhat changed. The Gárda Applicants

maintained their stance that all matters were justiciable.

The Attorney General, who had made it clear that his appeal was solely concerned with Ground 1 of the Notice of Appeal, did

not deal in any detail with the issue of justiciability. It appeared that he accepted a wide area of justiciability but submitted

that the matter be approached with some degree of deference by the Court in the light of the separation of powers.

The members of the Sub-committee other than Deputy Shatter were prepared to accept a somewhat greater degree of

justiciability than that set forth in their argument in the High Court. In addition to the concessions already made, Senior Counsel

for these Appellants, Mr Clarke, accepted with some hesitation that the constitutionally permitted scope of an inquiry would be

justiciable; the court could consider the resolutions initiating a particular inquiry in order to ensure that the inquiry would fall

within proper constitutional boundaries. However, he submitted that the various motions and amendments made by the Dail and

Senate, by the main committee and by the Sub-committee were non-justiciable. This was so even if such motions or

amendments were passed in breach of or in disregard of the Oireachtas’ own standing orders and rules of procedure. In

argument Mr Clarke accepted that it appeared to be held In Re Haughey that such matters were justiciable but he submitted

that that matter had not been fully argued before the Court.

Mr Shatter in his written submissions relied on Article 15.10 of the Constitution. That article, he said, outlined non-justiciable

areas of parliamentary activity. It set out the constitutional boundaries and permitted no interference by the other two organs

of Government, the Executive and the Judiciary with the internal workings of the Houses of the Oireachtas. Thus, he submitted,

the Courts were prohibited from interfering in areas deemed by the Constitution, either expressly or by necessary implication, to

be within the exclusive competence of Parliament. He referred to the judgment of O’Dalaigh C.J. in Wireless Dealers Association

v Fair Trade Commission (unreported Supreme Court 14th March 1956) where he stated:

“This survey of the Constitution is adequate to demonstrate that the Constitution makes each of the two Houses of the

Oireachtas complete master of its own deliberations and that the High Court, while granted a general jurisdiction to

pronounce on the constitutional validity of laws i.e., measures which have been passed by both the Houses and duly

signed and promulgated by the President, exercises no functions with regard to the deliberations of the Oireachtas.”

He submitted that the Article should be given a wide interpretation. In his oral argument to this Court it was clear that he felt

very strongly about what he saw as the incursions of the Divisional Court into areas of parliamentary activity which were non-

justiciable. He described the judgment of the Divisional Court as “a full frontal attack on parliamentary democracy”, a “violation

of the separation of powers” and an “emasculation of Parliament”. He suggested that the Divisional Court had “stormed

through the gates of Leinster House”. These ringing phrases, are no doubt, a measure of Mr Shatter’s passionate rejection of

the decision of the Divisional Court.

Article 15 of Bunreacht na hEireann deals with the Constitution and powers of the National Parliament. 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.”

It is clear from this sub-article that, as submitted by Mr O’Donnell, Senior Counsel for the Respondents, the Oireachtas “makes

its own rules for its own members”. These rules are in the main set out in the Standing Orders of both Houses. Various

Committees of each House administer these rules, and may provide for penalties for their breach. Committees such as the

Committee on Procedure and Privilege and the Committee of Selection are long established and are known as Standing

Committees. In recent years another such Standing Committee has been established - the Committee on Members’ Interests of

Dail Eireann. All these Committees, all investigations carried out by them and all penalties imposed by them (or by the Dail or

Seanad at their instigation) concern solely the members of the Oireachtas themselves. There is no doubt but that all these

matters are non-justiciable in accordance with Article 15.10.

Can this non-justiciability extend to actions of the Oireachtas, its Committees and its members when those actions impinge on

the rights of persons who are not members of either House, as contended for by Mr Clarke and Mr Shatter? More particularly,

can non-justiciability extend to a situation where such persons are compelled to attend and give evidence before a Committee

of either House or a Joint Committee? Could such non-justiciability extend to a situation where, for instance, the members of a

Committee were in blatant breach of the Standing Orders of the House itself and that breach affected the rights of non-

members? It seems to me that it could not.

The members of the Sub-committee, including Mr Shatter, argued that such an affected person must seek his or her remedy not

through the Courts but “through the political process”. I am not entirely clear what this latter phrase would mean in practice. In

my view it is neither a practical nor an effective remedy.

1 In the context of the present case, however, it is not necessary to hold that all actions of the Oireachtas which impinge on

the rights of non-members are justiciable. The Gárda Applicants have been directed to attend, to give evidence and to produce

documents before the Abbeylara Sub-committee under the provisions of the Committees of the Houses of the Oireachtas

(Compellability, Privileges and Immunities of Witnesses) Act 1997. This Act specifically and openly involves the High Court (and

on appeal this Court) in the proceedings of Oireachtas Committees.

Section 3(7) of the 1997 Act provides:-

“Where a person disobeys a direction, the High Court may, on application to it in a summary manner in that behalf by

the chairman of the Committee concerned on behalf of the Committee order the person to comply with the direction

and make such other (if any) order as it considers necessary and just to enable the direction to have full effect.”

Section 3(8) establishes a series of offences resulting from disobedience to detailed directions of the Committee in question.

Under Section 4 where a witness claims that evidence or a document is not relevant to the work of the Committee a decision

on its relevance may be made by the chairmen of either House of the Oireachtas and an appeal from their decision lies to the

High Court. Section 6 deals with the exemption of certain evidence and again application is to be made to the High Court to

decide whether the evidence is in fact exempt. In a number of sections where a person disobeys any direction of the Committee

he is held to have committed “an offence.”

A person such as one of the Gárda Applicants, therefore, who appears before an Oireachtas Committee under a direction

pursuant to the 1997 Act is thus involved in a scenario where crucial decisions are to be made by the High Court, or by this

Court on appeal. He is at risk of being found to have committed an offence and of being fined or committed to prison. He is

brought into this scenario as a result of resolutions, motions, amendments and other actions of the Oireachtas. It seems to me

that actions of the Oireachtas which are the basis on which the ordinary citizen may be brought into such peril cannot be non-

justiciable.

The 1997 Act does not stand alone. In essence it merely provides the tools for the work of Committees of the Oireahctas. The

Appellants accept that matters arising under the Act are justiciable. So also must be the resolutions and terms of reference and

any amendments thereto which cause the Act to be brought into effect.

The terms of reference of the Sub-committee

The careful analysis by the Divisional Court of the train of events leading to the establishment of what the Sub-committee itself

described as the “Abbeylara Inquiry” reveals a litany of procedural changes of direction and indeed procedural errors. In this

Court, as in the Divisional Court, it was extraordinarily difficult to ascertain from the documentary evidence the exact order and

effect of the procedural steps which were taken. The documentary evidence exhibited in the pleadings was confusing; the

provenance of the exhibited documents, and of further documents which were handed into Court, was far from clear. A peculiar

feature of this documentary confusion was that, with the honourable exception of the compellability Sub-committee, none of

the bodies concerned seemed to be capable of producing a certified extract from their minutes setting out in exact terms the

decisions made at each meeting in chronological order.

While clerical errors and other minor flaws can occur from time to time in any procedure, it seems extraordinary that such a

series of errors and such a degree of avoidable confusion should have arisen in the course of establishing exact terms of

reference for a task which the Oireachtas apparently regarded as of great urgency and importance. We are not dealing here

with the records of a local voluntary committee; what is in question here is the procedure and records of the National

Parliament.

The factual analysis of the procedural events made by the Divisional Court was in no way challenged in the course of the

appeal. The Divisional Court treated the procedural history as crucial to the actual powers of the Sub-committee and concluded

that the Sub-committee acted ultra vires the authority given to it. They dealt with this aspect of their conclusions at pages 63

to 64 of their judgment as follows:-

“It is acknowledged by Counsel who appeared on behalf of the Sub-committee that errors did occur in relation to these

resolutions but he says we ought to overlook them and adopt the approach of Geoghegan J. in Haughey v Moriarty

where at page 16 he said:

‘I do not think that the resolutions should be interpreted as though they were statutes. The Court must make

allowances for the political climate and urgency under which resolutions of this kind would come to be drafted.’

Even if that approach were to be adopted however, does it admit of the Sub-committee transforming the remit given to

it as being one which entitles it to (to use its own words) 'enquire into the Abbeylara incident and related matters and

address possible conflicts of fact, as in the opinion of the Sub-committee, arise directly or indirectly from oral or

documentary evidence.’? We do not think so.

In the first instance the report was merely referred to the joint-committee. It in turn required the Sub-committee to

consider the report and submissions received thereon and to report back. That was subject to the limitations which we

have already pointed out. True it is that on the 4th April power was given to send for persons, papers and records and

on the 10th April power was given to hear evidence. But it was the act of the Sub-committee itself that transmuted the

instructions given to it into one which required it to ‘enquire into the Abbeylara incident’. That was not its task. Its task

was to consider and report on the Commissioner’s report on the matter.

It is quite clear from a perusal of the transcripts and the video tapes of the hearings that what was being engaged upon

was much more extensive than that. It was as the Sub-committee itself said an inquiry into the Abbeylara incident. That

was the self written brief which went beyond what was asked of the Sub-committee. To adopt the words of Warren C.J.

to the instant case -

‘an essential premise in this situation is that the House or Senate shall have instructed the committee members of

what they are to do with the power delegated to them. That requires that the instructions to an investigating

committee spell out about the group’s jurisdiction and purpose with sufficient particularity. Those instructions are

embodied in the authorising resolution. That documents is the committee’s charter.’

The Sub-committee cannot go beyond the functions and powers conferred upon it. To transform a requirement that it

consider a report upon a report into an investigation of the underlying events which gave rise to the report was to go

too far. No such authority was given and the Sub-committee from the 11th April 2001 acted ultra vires the authority

given to it.”

In this Court Mr John Rogers S.C., in his detailed submission on behalf of the Gárda Applicants on this aspect of the case,

entirely supported the approach taken by the Divisional Court. He also argued that the Gárda Applicants who were directed to

appear before the Sub-committee were unaware of the true nature of the inquiry they faced. Through their Counsel they

repeatedly asked for documentary evidence of the exact terms of reference and powers of the Sub-committee. This information

was either not provided or only provided after a delay. Even when it was provided it subsequently, in the case of the consent

of the compellability Sub-committee, proved to be inaccurate. Mr Rogers submitted that an inquiry of the kind envisaged by the

Sub-committee was not mandated by the original resolutions of the Dail and Seanad and that the subsequent amendments did

not render the holding of such an inquiry intra vires.

From the point of view of the Gárda Applicants, they faced the ordeal of giving evidence in a totally unfamiliar setting, where

any failure or refusal to answer a relevant question or produce a relevant document constituted an offence punishable by a fine

of up to £20,000 or imprisonment for a term up to two years. Without exact information as to what appeared to be the

constantly changing terms of reference of the Sub-committee how were they to know what questions and what documents

were, in fact, relevant? On this aspect of the case Mr Rogers relied on the case of Watkins v United States (354 U.S. 178) to

which I shall refer later.

Senior Counsel for the appellant members of the Sub-committee (other than Mr Shatter), Mr Ryan, admitted that a measure of

confusion had arisen in connection with the various amendments to the terms of reference and powers of the Sub-committee,

but argued that nothing that had happened rendered the actions of the Sub-committee ultra vires. Mr Ryan submitted that in

impugning the resolutions, orders and decisions made by the Oireachtas and its Committees the Divisional Court had failed to

have due regard to the presumption of constitutionality. He referred to the dictum of Hamilton C.J. in Redmond v Flood [1999] 3

IR 79 where he stated:

“In this case both Houses of the Oireachtas deemed it expedient that a tribunal of inquiry be established to enquire into

the matters set forth in the resolutions of both Houses of the Oireachtas and the presumption of constitutionality

attaches to such resolutions.”

Mr Ryan also referred to a number of dicta to the same effect in other cases. He accepted that there had been certain flaws in

the procedures followed by the committee and Sub-committee, but submitted that serious breaches of rules or standing orders

would have to be established before a Court could prevent the Sub-committee from performing the task which it had been

mandated to perform by the Houses. In fact any breaches of procedural rules that had occurred had no serious effect.

As regards the complaint that the Gárda Applicants were unaware of the nature and purpose of the inquiry, Mr Ryan submitted

that all the proposed witnesses were furnished by the Sub-committee with extensive documentation including the rules and

guidelines for committees and the memorandum of procedure. The submissions received by the Sub-committee from relatives

and neighbours of the late Mr Carthy and from other members of the public were sent to all proposed witnesses and were

distributed to the relevant legal representatives at the start of the hearings. A majority of these submissions raised issues of

fact. The chairman of the Sub-committee, Deputy Ardagh, clearly identified the nature and purpose of the inquiry in his detailed

introduction to the proceedings on 24th April. Mr Ryan submitted that there was therefore an air of unreality about the Gárda

Applicants’ complaints that the purpose of the Sub-committee’s proceedings was a mystery to them.

Mr Shatter did not make any detailed submissions in regard to procedural difficulties concerning the terms of reference and

powers of the Sub-committee. He relied on his submission that none of these matters was justiciable. The Attorney General,

who was dealing only with the question of whether the Houses of the Oireachtas have an inherent right to establish or conduct

inquiries and the extent of such power, did not make any submissions in regard to this aspect of the case.

There is no doubt that the procedures adopted by the Committee and the Sub-committee in setting out and later amending

their terms of reference and powers are open to the criticisms made by the Divisional Court. Procedural errors alone are not,

however, sufficient to render the proceedings of the Sub-committee ultra vires. Mr Ryan argues that the resolutions, motions

and amendments of the Oireachtas and its Committees are entitled to the presumption of constitutionality; this is so, but this

submission is more relevant to the main issue of the inherent powers of the Committee. A presumption of constitutionality does

not serve to cloak a flawed procedure which leads to actual injustice, if such there be.

The Gárda Applicants claim that the procedural errors in this instance led to a situation of basic unfairness. This, in the main,

was because they, as compellable witnesses who were at risk of committing an offence and suffering punishment, were not

made aware of the nature and powers of the inquiry they were directed to attend. Clarity is of great importance in an inquiry

such as that proposed by the Sub-committee. The Oireachtas itself is well aware of this. The first rule under the heading

“Committee Procedures” in the Oireachtas’ own Rules and Guidelines for Committees reads as follows:-

“Committees shall identify, from the start of their consideration of any matter, the nature and purpose of any

investigation or proceedings to be conducted by them and, in particular, whether it is proposed to arrive at findings of

fact or to express opinion.”

Mr Rogers complains that the Abbeylara Sub-committee broke this rule in that the crucial amendment of 10th April, which gave

the Sub-committee power to “make findings of fact” was not conveyed to the Gárda Applicants and indeed seemed to have

disappeared from the records of the Committee. Neither did it form part of the Sub-committee’s application to the Compellability

Committee.

The importance of clarity in the nature and purpose of the investigation is related to the terms of the 1997 Act. Persons who

are directed under the terms of the Act, as were the Gárda Applicants, to attend an inquiry into facts must answer questions

as put to them and must produce documents as demanded. Refusal or failure to do so lays the witness open to suffering serious

penalties.

In a number of sections of the 1997 Act, the High Court is involved in enforcing the directions of the Committee which is

carrying out the inquiry. Section 3 deals with the power of the Committees who obtain evidence. Section 3(7) provides (as

quoted earlier in this judgment):

“Where a person disobeys a direction, the High Court may, on application to it in a summary manner in that behalf by

the chairman of the Committee concerned on behalf of the Committee, order the person to comply with the direction

and make such other (if any) order as it considers necessary and just to enable the direction to have full effect.”

Section 3(8) establishes a number of offences in this context:

“(8) A person who -

(a) having been directed under paragraph (a) of sub-section (1) to attend before a Committee and having had

tendered to him or her any sum in respect of the expenses of his or her attendance before the Committee which

a witness summoned to attend before the High Court will be entitled to have tendered to him or her, without just

cause or excuse, disobeys the direction,

(b) being in attendance before a Committee pursuant to a direction under the said paragraph (a), refuses to take

the oath on being required by the Committee to do so or refuses to answer any questions which the Committee

may legally require an answer,

(c) without just cause or excuse, disobeys the direction under paragraph (b), (c), (d) or (e) of sub-section (1),

(d) in relation to the discovery of documents pursuant to paragraph (d) of sub-section (1), contravenes a rule of

court referred to in that paragraph, or

(e) does any other thing in relation to the proceedings before a Committee which, if done in relation to

proceedings before a Court by as witness in the Court or any other person, would be contempt of that Court,

shall be guilty of an offence.”

Section 17 delineates the penalties for offences under section 3(8):-

“17(1) A person guilty under an offence under Section 3(8) shall be liable -

(a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding twelve

months or to both, or

(b) on conviction on indictment, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding two

years or to both.....”

To disobey a direction of an Oireachtas Committee is, therefore, a very serious matter. The 1997 Act, however, includes a

provision that the potential witness need answer only “relevant” questions and produce “relevant” documentation. Section 4(1)

provides:-

“4(1) A Committee may not direct a person to give evidence, or produce or send a document, to it, or attend before it

to give evidence, or produce a document to it, that is not relevant to the proceedings of the Committee.”

If a witness refuses to answer a particular question or to produce a particular document on grounds of irrelevance, the decision

as to its irrelevancy is to be made by the Chairmen of the Dail and/or Senate, or, on appeal, the High Court. This provision

regarding irrelevance is on its face an important protection for the potential witness. The protection loses much of its force

however if the witness cannot ascertain clearly in advance what matters are, or are not, relevant to the inquiry. Relevance or

irrelevance can only become clear if the nature of the inquiry and its terms of reference are also clear and are conveyed in a

proper manner and at a proper time to the potential witness.

This is precisely the situation which was considered by the Supreme Court of the United States in Watkins v United States (354

U.S. 178). In that case the petitioner had been summoned to testify before a Sub-committee of the House of Representatives

Committee on Un-American Activities. He testified freely about his own activities and associations but he refused to answer

questions as to whether he had known certain other persons to have been members of the Communist Party. He based his

refusal on the grounds that those questions were outside the proper scope of the Committee’s activities and not relevant to its

work. He was convicted of a violation of 2 U.S.C. paragraph 192, which makes it a misdemeanour for any person summoned as a

witness by either House of Congress or any Committee thereof to refuse to answer any question “pertinent to the question

under inquiry”.

As set out in the headnote of the report, no clear understanding of the “question under inquiry” could be gleaned from the

resolution authorising the full Committee, the legislative history thereof, the Committee’s practices thereunder, the action

authorising the Sub-committee, the statement of the chairman of the opening of the hearings or his statement in response to

the petitioner's protest. The Supreme Court held that the petitioner was not accorded a fair opportunity to determine whether

he was within his rights in refusing to answer, and his conviction was invalid under the Due Process Clause of the Fifth

Amendment. The opinion of the Court was delivered by Chief Justice Warren. He stressed (at page 197) that in this context

“the delegation of power to the Committee must be clearly revealed in its charter”. At page 201 the Chief Justice referred to

the relationship between the Legislature and its Committees:-

“An essential premise in this situation is that the House or Senate shall have instructed the Committee members on

what they are to do with the power delegated to them. It is the responsibility of the Congress, in the first instance, to

ensure that compulsory process is used only in furtherance of a legislative purpose. That requires that the instructions

to an investigating committee spell out that group’s jurisdiction and purpose with sufficient particularity. Those

instructions are embodied in the authorising resolution. That document is the Committee’s charter. Broadly drafted and

loosely worded, however, such resolutions can leave tremendous latitude to the discretion of the investigators. The

more vague the Committee’s charter is, the greater becomes the possibility that the Committee’s specific actions are

not in conformity with the will of the parent house of Congress.”

He went on to consider the way in which the “question under inquiry” had been defined by the Sub-committee in question. At

page 214-215 the learned Chief Justice concluded:-

“Having exhausted the several possible indicia of the ‘question under inquiry’, we remain unenlightened as to the subject

to which the questions asked the petitioner were pertinent. Certainly, if the point is that obscure after trial on appeal, it

was not adequately revealed to the petitioner when he had to decide at peril whether nor not to answer. Fundamental

fairness demands that no witness be compelled to make such a determination with so little guidance. Unless the subject

matter has been made to appear with indisputable clarity, it is the duty of the investigative body, upon objection of the

witness on grounds of pertinencey, to state for the record the subject under inquiry at that time and the manner in

which the propounded questions are pertinent thereto. To be meaningful, the explanation must describe what the topic

under inquiry is and the connective reasoning whereby the precise questions asked relate to it.”

Mr Justice Frankfurter, in a concurring opinion, referred to the need for “luminous” clarity:

“To turn to the immediate problem before us, the scope of enquiry that a Committee is authorised to pursue must be

defined with sufficiently unambiguous clarity to safeguard the witness from the hazards of vagueness in the

enforcement of the criminal process against which the Due Process Clause protect. The questions must be put with

relevance and definiteness sufficient to enable the witness to know whether his refusal to answer may lead to conviction

for criminal contempt and to enable both the trial and the appellate courts readily to determine whether the particular

circumstances justify a finding of guilt....Prosecution for contempt of Congress presupposes an adequate opportunity for

the defendant to have awareness of the pertinency of the information that he has denied to Congress. And the basis of

such awareness must be contemporaneous with the witness’s refusal to answer and not at the trial for it. Accordingly

the actual scope of the inquiry that the Committee was authorised to conduct and the relevance of the questions to

that inquiry must be shown to have been luminous at the time when asked and not left, at best, in cloudiness.”

In the instant case the Appellants claim that the Gárda Applicants were fully informed of the nature of the inquiry and the

powers of the Sub-committee both by the documentation which was served on them with the direction and by the

comprehensive introductory speech made by Deputy Ardagh on the 24th April. They were not, however, provided in advance of

the hearing with the resolutions, motions and amendments thereto which were the documents of origin of the Committee’s

inquiry. Even when those documents were sought by Mr Rogers on their behalf there was considerable hesitancy and delay in

producing them. Those that were produced were at least in one respect inaccurate. To judge from the transcript the attitude

of the Sub-committee appeared to be that in seeking this information Counsel for the Gárda Applicants was making “spurious”

legal points or merely trying to obstruct the “good work” of the Sub-committee.

In my view, the information provided by the Sub-committee, while it gave a general indication of the nature of the inquiry, did

not measure up to the “luminous” clarity required, given the possible penalties faced by the Gárda Applicants. In the Watkins

case, the United States Supreme Court approached the Committee’s lack of clarity from the point of view of the “due process”

rights of the petitioner. It seems to me that this approach is of assistance in the instant case. It is not so much that the

procedural flaws in the establishment of the Abbeylara Inquiry are so serious as in themselves to render the Committee’s

proceedings ultra vires. It is rather that the confusion and complexity that beset the procedures in question, and the failure

clearly to convey the nature and powers of the Sub-committee to the Gárda Applicants, resulted in a lack of fair procedures or

due process on the part of the Sub-committee.

This issue on the appeal, therefore, is related to the other complaints of the Gárda Applicants which I will deal with under the

heading of Fair Procedures.

The Consent of the Compellability Sub-Committee - the 1997 Act

The events surrounding the issue of the consent of the compellability Sub-committee pursuant to the Act of 1997 are fully set

out by the Divisional Court in its judgment at pages 17 to 29. The factual basis of the history set out by the Divisional Court is

not in substance challenged by the Applicants.

The long title of the Act of 1997 states that its purpose is “to make provision regarding compellability and the privileges and

immunities of witnesses before Committees of Houses of the Oireachtas and to provide for related matters.” Before an

Oireachtas Committee can use the powers provided in the Act the Committee must firstly have the power to “send for persons,

papers and records” and must secondly have obtained the consent of the “appropriate Sub-committee”. The “appropriate Sub-

committee” is defined in Section 1(1) of the 1997 Act as follows:-

“(a) In relation to a Committee appointed by either House of the Oireachtas or a Sub-committee of such a Committee,

means a Sub-committee of the Committee on Procedure and Privileges of that House,

(b) In relation to a Committee appointed jointly by both Houses of the Oireachtas or a Sub-committee of such

Committee, means a Sub-committee appointed jointly by the Committee on Procedure and Privileges of each such

House.”

Section 3 of the Act sets out the powers of Committees to obtain evidence, both oral and documentary. Section 3(1) provides

that before issuing directions to “any person” either to attend as a witness or to produce or discover any document, the

Committee in question must have the consent of the compellability Sub-committee (the term by which the “appropriate Sub-

committee” is known). The details of making an application for such consent to the compellability Sub-committee are set out in

the Rules and Guidelines for Committees in relation to the Conduct of Proceedings which may give rise to Findings of Fact or to

Conclusions which could Adversely Affect or Impugn the Good Name of any Person at Rule 14.

Section 3(9) of the Act of 1997 provides as follows:-

“(9)(a) A consent of the appropriate Sub-committee under sub-section (1) (‘a consent’) shall be in writing and the

document containing it shall be signed by the chairman of the Sub-committee or by another member of the Sub-

committee duly authorised in that behalf by such chairman.

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

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

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

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

(c) A document -

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

Committee who is acting as chairman thereof, or

(ii) produced in a Court by the chairman of the Committee or another member of the Committee duly authorised

in that behalf by such chairman,

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

contrary is shown be evidence -

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

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

persons or matters so specified, and

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

As is clear from the judgment of the Divisional Court and from the documentary evidence exhibited before this Court, the

Abbeylara Sub-committee made an application to the compellability Sub-committee on the 11th April 2001 for the necessary

consent pursuant to the 1997 Act so that it could issue statutory directions to proposed witnesses pursuant to Section 3 of

that Act. The compellability Sub-committee considered the application at its meeting on the evening of the same day. It

appears that this meeting began at 7.50 p.m. and ended at 8.05 p.m. and that at that brief meeting the Sub-committee

considered requests from two Sub-committees one of which was the Abbeylara Sub-committee. The compellability Sub-

committee decided to give consent to the application made by the Abbeylara Sub-committee.

On 12th April 2001 the Abbeylara Sub-committee issued the directions which were served on the Gárda Applicants and other

witnesses directing them to attend at the hearing on 24th April and there to give evidence. The written consent of the

compellability Sub-committee, duly signed by its chairman Deputy Seamus Brennan, was not brought into existence until 30th

April 2001. The Divisional Court held that the directions issued on the 12th April to the proposed witnesses were therefore not

properly issued in accordance with the Statute. There was, therefore, no authority vested in the Sub-committee to issue these

directions.

In this Court the Appellants argued that before the issue of the directions on 12th April the Compellability Sub-committee had in

fact met, had considered the application, and had consented. The Appellants submit that the consent in writing is required for

the purposes of proof only, to be produced in accordance with Section 3(9)(c).

This issue of the interpretation of Section 3(9) has been fully discussed by Geoghegan J. in his judgment and I am in complete

agreement with him. It appears to me that the words used in the Statute are clear and should be interpreted in accordance

with what is described in Bennion’s “Statutory Interpretation” as “the plain meaning rule” (3rd ed. Pgs. 425-427). In this

context Bennion quotes the judgment of Lord Reid in Pinner v Everett [1969] 1 WLR 1266 at 1275:

“In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or

ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result

which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some

other possible meaning of the word or phrase.”

It seems to me that the phrase “consent... shall be in writing” has a natural and ordinary plain meaning which does not lead to

any unreasonable result. There is nothing at all unreasonable in providing that a written consent should be in the hands of an

Oireachtas Committee at the time when it issues a direction to a witness to attend an inquiry. Indeed, a great many of the

difficulties of the Abbeylara Sub-committee in meeting the queries raised by Counsel for the Gárda Applicants might have been

avoided if they had taken the simple step of obtaining the relevant “consent in writing” before directing the witnesses to

attend.

I would add that even if this interpretation of Section 3(9) were wrong and the argument of the Appellants were to be

accepted, it would surely be necessary for the Abbeylara Sub-committee to produce the written consent of the compellability

Sub-committee as proof of its existence if and when any witness required it. From the very beginning of the hearings on 24th

April Counsel for the Gárda Applicants, Mr Rogers, raised queries in connection with the terms of reference, powers and

authority of the Sub-committee. He continued to raise these queries on the following days. He met with very little assistance

and it was clear that his queries were far from welcome to the members of the Sub-committee. When, on 26th April the

Committee finally rose to consider the queries which he had raised, their decision was given by the chairman, Deputy Ardagh, as

follows:-

“The Sub-committee on the Abbeylara incident is back in public session. In relation to Mr Rogers submission, the

Committee is satisfied that it has the powers to carry out its work and to continue its work. The Committee, however,

recognises that the parties are entitled to full information as to the orders that were made confirming those powers and

it is proposed that the Secretariat of the Sub-committee will furnish this information by way of letter on Monday

morning. In the meantime the Committee intends to continue its work Mr Rogers.”

It is abundantly clear that the Committee expected and required the witnesses before it to give evidence in its far reaching

inquiry prior to the production of the proper written proof of the consent of the compellability Sub-committee. It is probable

that at least some members of the Sub-committee were well aware that the required written consent was not in existence. In

my view, once the Gárda Applicants had sought evidence of the Committee’s powers, the Sub-committee had no authority to

direct them to give evidence unless and until proof in writing of the consent of the compellability Sub-committee had been

produced to them.

In my view the Divisional Court was correct in granting an Order of Certiorari quashing the directions to the Applicants requiring

them to attend before the Abbeylara Sub-committee there to give evidence and to produce documents in their possession.

Fair Procedures

In their judicial review proceedings before the Divisional Court the Gárda Applicants sought a declaration that the procedures

adopted by the Abbeylara Sub-committee did not comply with the requirements of natural and constitutional justice.

The witnesses who were directed to attend the Sub-committee on 24th April 2001 were issued with a letter including the Rules

and Guidelines for Committees under the 1997 Act. Rule 2 of these rules provided:-

“Committees shall adopt fair and proper procedures and shall conduct their business in accordance with the principles of

natural justice.”

The Sub-committee also issued a “Memorandum of Procedures for the Conduct of Proceedings of the Sub-committee on the

Abbeylara Incident”.

At paragraph 10(d) of this memo it was stated:-

“All interested parties will be invited to indicate to the Sub-committee, upon receipt of the list of witnesses, which, if

any, of the witnesses it intends to seek to cross-examine, and the basis upon which it claims to be entitled to cross-

examine such witness. Any such witness will be entitled to be told of any persons who may be permitted to cross-

examine them and ought not to be so permitted.”

All references to cross-examination of witnesses were, however, to be subject to paragraph 10(f) which stated:-

“The Sub-committee will indicate the parties who shall be entitled to cross-examine any witness. The Sub-committee

may decide to arrange for the cross-examination of witnesses at a time or terms other than immediately following the

examination by members of the Sub-committee.”

The witnesses were also presented with a schedule of witnesses and a timetable for the hearings. From this it appeared that

fifty seven witnesses would be examined over a ten day period. No cross-examination would be permitted until the ninth day,

and the closing submissions of the parties would also have to be accommodated on that day. Further evidence and conclusions

were scheduled for the final day.

Through their Counsel. Mr Rogers, the Gárda Applicants raised objections to certain of these procedures. Their most vehement

objection was to the ruling that the evidence in chief of all the witnesses would first be taken and that cross-examination of

the witnesses would be allowed only with the permission of the Sub-committee. In addition they objected to the postponement

of cross-examination to the ninth day and that the entire of cross-examination would be confined to a period of less than one

day.

It should be said that Senior Counsel for the Carthy family, Mr Michael O’Higgins, also raised vehement protests at the proposed

curtailment and postponement of cross-examination.

In the course of submissions to this Court the Appellants submitted that these procedures were not cast in stone, and would be

open to variation if required during the course of the inquiry. This, however, did not appear to be the position at the actual

hearing on 24th April 2001. Certainly it was not clearly indicated to the witnesses or their Counsel that the schedule or method

of procedure could be altered from time to time. On 24th April the chairman of the Sub-committee, Deputy Ardagh, ruled:-

“The procedures as outlined in the memorandum were proceedings in conjunction with normal parliamentary practice

and will be followed as closely as possible and will be amended only to the extent necessary to ensure full compliance

with the legislation. It follows from what I have said that while the legislation provides for the rights of cross-

examination and representation by lawyers on behalf of witnesses, it is the desire of the Sub-committee that the direct

part played by lawyers be resorted to only where absolutely necessary.... The Sub-committee approved provisional

schedule of witnesses and the statement of issues to be examined during the course of nine or ten days of hearing

amount to approximately sixty hours beginning today and finishing not later than Friday 11th May”.

On the same day Deputy Ardagh dealt with the question of any alteration to the procedures as follows:-

“When the Sub-committee has had the benefit of hearing what any of the parties may have to say concerning those

issues and the procedures which it proposes, it will meet in private session to finalise the issues and its procedures

today.”

These rulings give an indication of the attitude of both the chairman and the members of the Sub-committee throughout the

public hearings. It was therefore somewhat surprising to find that the Appellants relied very heavily in their submissions to this

Court on the protections provided for witnesses by Section 10 of the 1997 Act. It is clear that the protections provided in the

Act are intended to reflect the judgment of this Court in In Re Haughey [1971] 1 IR 217.

The Divisional Court in their judgment held that the proposed procedures of the Abbeylara Sub-committee were unfair and

unlawful. At page 69 of the judgment the Court stated:-

“The procedural issues were to be determined by the Sub-committee on the first day of the hearing. We do not find

anything said there which altered the procedures which had been outlined. Indeed it was made clear by the chairman on

the first day that at a meeting held on the 18th April 2001 the Sub-committee envisaged the hearings lasting

approximately sixty hours beginning on the 24th April and finishing not later than Friday 11th May.

Even allowing for the possibility of some extension of this time or the possibility of special applications being made to

take cross-examination prior to the time envisaged, can it be said that these procedures accord with the rights afforded

in In Re Haughey?

The deferment in general of all cross-examination to the end and then only with leave of the committee, in our view,

falls far short of what is envisaged in In Re Haughey. Prior notification of the issues upon which it is proposed to cross-

examine empties it of much of its value.

The decision of the Supreme Court in In Re Haughey predicated a simple sequence. It involved calling the evidence,

testing it by cross-examination and making submissions. The Sub-committee here took it upon itself to define other

procedures because it took the view that parliamentary procedure required it. It in effect said as a matter of general

application cross-examination was to be both deferred and limited. Furthermore the chairman made it clear that the

direct part to be played by lawyers was to be resorted to only where absolutely necessary. He said “the Sub-committee

will observe this stricture as all the questioning on behalf of the Sub-committee will be conducted by the members”. All

of this suggests that it was a clear attempt to rewrite the rules guaranteed under Re Haughey and to do so in a manner

which substantially diluted and negated them”.

In their submissions to this Court the Gárda Applicants/Respondents relied in the main on the requirements of fair procedures

and natural and constitutional justice as set out in In Re Haughey [1971] IR 217. In his judgment in this Court in that case O

Dálaigh C.J. stated (at page 264):-

“In proceedings before any Tribunal where a party to the proceedings is on risk of having his good name, or his personal

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

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

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

The Chief Justice went on to set out the “minimum protection” to which the person at risk of having his rights jeopardised was

entitled:-

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

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

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

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

O Dálaigh C.J. concluded that Article 40.3 of the Constitution was a guarantee to the citizen of basic fairness of procedures. It

was he said “the duty of the Court to underline that the words of article 40.3 are not political shibboleths but provide a

positive protection for the citizen and his good name”.

The Appellants in their submissions to this Court made a number of points. Firstly they argued that the Respondents were not in

the position of being accused of committing a criminal act in the sense that Mr Pádraic Haughey had been. They were merely

witnesses; no evidence at all had yet been given against them. Secondly, they were in fact been allowed all the rights listed by

O Dálaigh C.J. as set out above. Thirdly, since the inquiry had not really got properly under way at all prior to the issue of the

present judicial review proceedings the Respondents could not properly allege that the procedures would not have been

changed during the course of the inquiry in order to meet their complaints.

These submissions carry a certain weight. However, in the light of the Appellants own submissions both in the Court below and

in this Court, it seems clear that at least some of the Gárda witnesses were at risk of being treated more as accused persons

than merely as witnesses. As regards cross-examination, clearly any Court and any inquiry must have the right to control cross-

examination, for instance both as to relevance and as to length. But O Dálaigh C.J. has laid great stress on the importance of

cross-examination, and it does not seem to me that a cross-examination so limited in time and, even more damagingly,

postponed until after the completion of all the evidence in chief, could adequately meet the standards set by this Court in In Re

Haughey.

Mr Rogers also informed this Court that during the actual proceedings of the Sub-committee the senior Gárda witnesses were

called to give evidence in groups of four or five and were permitted to refer questions and answers to each other. While such a

procedure might on occasion be suitable for what I might describe as the traditional information-gathering inquiry carried out by

Parliamentary Committees, it is, I consider, open to objection in any inquiry which is seeking to make serious and damaging

“findings of fact”.

What appears to have happened as far as can be gathered from the materials provided to this Court, is that a pattern of

procedure which had been established - and apparently agreed - for the DIRT Inquiry carried out by the Public Accounts

Committee was transferred more or less holus bolus to the Abbeylara Sub-committee’s inquiry. Clearly, insufficient thought was

given as to whether it was a suitable procedural framework for such an entirely different type of inquiry.

The Appellants, however, are correct in their submission that none of the Gárda Respondents have as yet given evidence or

been adversely affected by the proposed procedures, which could have been changed and improved as the inquiry progressed.

Nevertheless, they had been put on notice of the proposed procedures of the Sub-committee and in fact had found little

inclination on the part of the Sub-committee to meet their complaints. They were, therefore, justified in seeing themselves as

being at risk of being adversely affected by the proposed procedures.

Since the procedures had not actually been put into effect prior to the issue of the present proceedings, I consider that the

Divisional Court was correct in confining the relief granted to the Respondents in this respect to the declaratory order which

they made at paragraph 5 of their order of 23rd November 2001.

I am the more ready to uphold this aspect of the order of the Divisional Court in that, as I have stated earlier, I consider that

the lack of clarity in the amended terms of reference of the Sub-committee, and the failure clearly to convey to the witnesses

the nature and powers of the Sub-committee, also contributed to a failure to comply with the requirements of natural and

constitutional justice. It could also be said that the Respondents’ complaints concerning objective bias (to be dealt with at the

end of this judgment) were closely connected with the overall concept of fair procedures and natural and constitutional justice.

The Notice to Vary - The Bias Issue

The second relief which was sought by the Gárda Applicants in their application for judicial review was set out in their Grounding

Statement as follows:-

“(C.2) A declaration that public inquiries, delivery of reports, findings of fact or expressions of opinion, under the aegis

and with the authority of, and enforced by the power of, the State (including the power of compulsory attendances of

witnesses and discovery of documents) liable to result in adverse purported finding of fact or expression of opinion may

not consistent with the principles of constitutional justice and fairness be conducted by a tribunal composed of elected

officials.”

The grounds upon which their claim for such a relief was sought appear at paragraph (d) of the grounding statement as

follows:-

“5. The holding of public inquiries, delivery of reports, findings of facts or expressions of opinions, under the aegis and

with the authority of, and enforced by the power of, the State (including the power of compulsory attendance of

witnesses, and discovery of documents) liable or having as their object or effect the production of adverse purported

finding of fact or expressions of opinion, must, consistent with the aforesaid principles of constitutional justice and

fairness, be conducted by an impartial tribunal, comprising persons capable in law of being and being seen to be,

objective, independent, and unbiased.

6. A tribunal comprised of elected officials dependant for their continuation in office upon popular support is incapable of

being seen to discharge the task of holding public inquiry, delivery of reports, making findings of fact or expressing

opinions adverse to persons in a manner that is seen to be unbiased and which is seen to be uninfluenced by the

dependence of such persons on such popular support.”

The Divisional Court in its judgment refers to this as among the major issues raised by the Applicants in the proceedings. On

page 33 of the judgment the issue is set out:-

“(1) They [the applicants] contend that there is no entitlement express or implied on the part of the National Parliament

or any committee or Sub-committee thereof to conduct an inquiry of the type in suit. This is so, it is said, not merely

because of the absence of any authority express or implied to mandate the carrying out of such an inquiry but elected

representatives by reason of their position are incapable of conducting such an inquiry because of the existence of

objective, or as it was sometimes referred to in argument, structural bias.”

However, the Divisional Court, having held that the Sub-committee had in fact no power to conduct the inquiry in question, did

not go on to consider the specific issue of bias. Nor is there any relief based on bias granted in the Order of the Divisional Court

made on the 23rd November 2001.

On 6th December 2001 notices of appeal to this court were filed on behalf of the Joint Committee (other than Alan Shatter), on

behalf of Alan Shatter, and on behalf of Ireland and the Attorney General. On 12th December 2001 a Notice to Vary was filed on

behalf of the Gárda Applicants (the Respondents in the appeal). In the Notice to Vary the Respondents sought:-

“A declaration that public inquiries, delivery of reports, findings of fact or expressions of opinion under the aegis, and

with the authority of, and enforced by the power of the State (including the power of compulsory attendance of

witnesses and discovery of documents) liable or having as their object, or effect, the production of adverse purported

finding of fact or expression of opinion, may not consistent with the principles of constitutional justice and fairness be

conducted by a Tribunal comprised of elected officials.”

The use of the phrase “elected officials” in both the original grounding statement and in the notice to vary is somewhat

strange. However, based on the submissions of Counsel to this court, it can be taken simply to mean “public representatives” or

“members of the Oireachtas”. In general terms the Gárda Applicants argue that by the very nature of their functions,

responsibilities and characteristics as public representatives the members of the committee are precluded on grounds of bias

from carrying out an inquiry of this type. They also argue in particular that at least a number of the members of the committee

have by their behaviour before and during the actual committee hearings created in the minds of the Gárda Applicants a

reasonable apprehension of bias.

The bias claimed by the Respondents is “objective” bias. They make no claim of subjective bias on the part of the committee

members; they do not allege any specific personal interest on the members’ part in the outcome of the inquiry.

It appears that the issue of bias was argued before the Divisional Court although this is not reflected in the judgment of that

court.

Since it is the Respondents (the Gárda Applicants) who have sought this variation of the decision of the Divisional Court it

seems appropriate firstly to consider their submissions to this court. This part of their submissions was dealt with by Mr

O’Donnell.

Mr O’Donnell introduced his submissions on bias with a reference to the history of parliamentary inquiries in the United Kingdom,

the enactment of the Act of 1921, and the Salmon Report. All these matters have been dealt with elsewhere in this judgment

and in the judgments of other members of the court and there is no need to enlarge on them here. Mr O’Donnell’s basic

argument which, he said, followed from common sense, was that persons who hold elected positions are not independent and

are not capable of acting in a manner that is divorced from their own electoral dependence, persistent need to court media

approval and the dictates of their own party political loyalties.

Counsel pointed out that the decisions of this court upholding the validity of Tribunals of Inquiry under the 1921 Act attached

importance to the fact that those Tribunals operated under the aegis of experienced judges. In Goodman v Hamilton [1992] 2

IR 542 at 592 the then Chief Justice, Finlay C.J. observed that the fact that the sole Member of the tribunal of inquiry in that

case was a High Court judge was “a significant contributing factor to the fairness of the proceedings that are being

undertaken”. In the same case Hederman J. stated:-

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

tribunal comprised exclusively of Dail deputies. It was the failure of such a Select Committee of Parliament in regard to

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

Commission Act 1888, that led to the passing of the Act of 1921.”

It was clear that the learned judge did not regard with favour the idea of “a tribunal composed exclusively of Dail deputies”.

Mr O’Donnell referred to the established test of objective bias in Irish jurisprudence defining it as revolving around “that of the

reasonable person’s reasonable apprehension of bias” (Bula v Tara Mines unreported Supreme Court 3 July 2000 at 36). In view

of this it became extremely difficult to see how it could be contended that the members of the Sub-committee were not subject

to the disability of apparent bias. They were not independent in the discharge of their functions. The risk of elected politicians

being induced to condition findings of fact by reference to their own perception of public opinion, or being reluctant to arrive at

findings that might inflame that opinion, was such that no person looking objectively at proceedings conducted by such a

committee could have confidence in the impartiality of the result.

Counsel highlighted the response of the Appellants to the issue of bias. The individual deputies protested their determination to

be impartial. In effect they sought to assure the court that they would behave with the impartiality and dignity appropriate to

the court proceedings; they contended that they would be like judges and agreed that they were obliged to behave in a judicial

manner. This however was in direct contrast to their actual constitutional duties to their constituents. They were elected to

represent their constituents and could not ignore the views and indeed the actual representations of their constituents. In this

context Mr O’Donnell quoted the ringing phrases of Edmund Burke’s Address to the Electors of Bristol. He went on to point out

that the members of the committee were subject to party discipline and that the members of all Dail Committees were selected

in proportion to the strength of the Parties in the House precisely because they could put forward their Parties’ policies in the

committee. May a Party whip be imposed on the members of the committee, he asked, and if not, why not?

Mr O’Donnell said that he found it extremely troubling that the Appellants had argued that the rule against bias had no

application to the proceedings of the committee. The rule against bias (the nemo iudex rule) was one of the two basic tenets

of natural law. To be told that it did not apply to this inquiry was extraordinary, particularly when it was accepted that other

rules of fair procedures did apply.

The Attorney General had argued that the decisions on bias were only applicable in the context of a decision-maker whose fact

finding would determine legal rights. Mr O’Donnell submitted that that was quite wrong. The fact that the rules relating to bias

were not confined to the bodies whose determinations directly affected legal rights was evident from the decision of this court

in Chestvale v Glackin [1993] 3 IR 35, where those principles were applied to an inspector appointed and reporting under the

Companies Act.

Mr O’Donnell then turned to the actual behaviour of the members of the committee. Members of the committee had expressed

trenchant views on the subject of the inquiry before it commenced; the chairman of the inquiry took part in a television

programme about the inquiry while it was ongoing, and other members of the committee gave interviews to journalists during

the course of the hearings expressing opinions as to the whole course of the hearing. The evidence before the High Court

(which was never contradicted) was that journalists were regularly briefed throughout the course of the Parliamentary

Committee proceedings by the members of committees. On any standard application of the rules against bias, those facts would

give rise to a reasonable apprehension of pre-judgment. To draw attention to these matters was not to criticise elected

representatives as such. On the contrary, it was because “elected representatives were obliged to monitor and reflect popular

sentiment,” because “they were trusted to reflect that sentiment in their law making” and because “they were obliged to

listen to and reflect upon the views of their constituents that it was singularly inappropriate that they then engaged in the

function of determining facts particulars to individuals and potentially adverse to them.”

The apprehension of bias on behalf of the Gárda Applicants was founded both in the general nature of the proper task of

elected representatives and in the particular behaviour of the members of the Sub-committee.

In the course of oral argument before this court the main argument for the Appellants on bias and on the Notice to Vary was

put forward by the Attorney General. He submitted that the authorities on bias had no relevance to the situation of a

committee or Sub-committee of the Houses of the Oireachtas. All the authorities cited by the Gárda Applicants relating to the

test of bias concerned a situation where there was a decision-maker whose fact finding would determine legal rights. The test

of bias operated only in a situation where there was a trial or an adjudicative process taking place. He submitted that an

Oireachtas Committee of Inquiry operated at the heart of the parliamentary process and was devoid of any legal effect or

impact on the rights of individuals. Where a trial or regulatory authority was making a decision affecting rights it was consistent

with and necessary to that function that the decision-maker would be free of any kind of bias whether actual or apparent.

Where members of the Oireachtas in pursuance of their various duties enquire into facts relevant to those duties wholly

different considerations would apply.

The Attorney General said that the Gárda Applicants argued that elected members of the House were unfit to carry out the fact

finding exercise involved in an inquiry. He submitted that on the contrary a perusal of the duties and responsibilities entrusted

by the Constitution to such persons revealed a trust and faith in their judgment on matters of the most far reaching

consequence. They were charged with making decisions not only about legislating for the country but also with judgments

about the President and the judges of the Courts of Justice. The suggestion that such persons were unfit to carry out duties

connected with their legislative function because of the representative nature of their duty was without merit and

misconceived. Mr Shatter in his submissions adopted the arguments of the Attorney General on the issue of bias.

The members of the Sub-committee (other than Mr Shatter) dealt with this matter in their written submissions. They submitted

that the claim of bias misunderstood the role of the Sub-committeee. The Sub-committee was not in dispute with the Gárda

Applicants nor was it going to determine any rights or liabilities either of the Gárda Applicants or any one else. All the Sub-

committee would do was to report (via the Joint Committee) their considerations and recommendations to both Houses. It was

therefore inappropriate to apply the type of analysis of bias to the Sub-committee that one would apply to a court. It was

difficult to comprehend the contention of the Gárda Applicants to the effect that the Sub-committee could not be

“independent” in the conduct of the proposed inquiry because the Sub-committee was composed of elected officials. The Sub-

committee was made up of a cross section of members of three political parties and was representative of the Houses as a

whole. It was unclear how bias could arise in such circumstances.

The Appellants accepted that the traditional concept of procedural fairness as applied to courts required that a number of

elements be present when an investigation into a person’s activities was being carried out. While persons whose interests might

be affected by an act or a decision should be given prior notice and an adequate opportunity to be heard, the concept also

required that the decision-maker should not be biased or prejudiced in a way that precluded fair and genuine consideration

being given to the arguments which such persons concerned might have advanced. The rule against bias was concerned not

only with preventing actual bias, but also with ensuring that circumstances should not give rise to the appearance or a risk of

bias.

Counsel for the Appellants referred to the test of objective bias as formulated by Finlay C.J. in O’Neill v Beaumont Hospital

Board [1990] ILRM 419 as being whether:-

“A person in the position of the plaintiff who is a reasonable man and not either over sensitive or careless of his own

position, would have good grounds for a fear that he would not get in respect of the issues involved, from a body which

included the chairman, an independent hearing.”

Counsel went on to refer to a number of decisions of the High Court and this court concerning objective bias, including in

particular Orange Communications Limited v The Director of Telecommunications Regulations and Another (unreported

Supreme Court 18th May 2000). A consideration of this case law relating to bias, it was submitted, identified situations where a

decider of fact would be disqualified from acting. However, it could be seen from those cases that this situation would generally

occur only when an identifiable factor linked the individual decider of fact or the member of a deciding committee to some

aspect of the matter being investigated so as either to establish actual bias or to suggest the presence of bias.

In the situation of the Sub-committee, however, there were no factors linking any members of the Sub-committee to Mr Carthy

or to any of the persons under investigation. In fact the Gárda Applicants had rightly stressed that no such allegations were

being made. The contention of the Gárda Applicants was that members of the Sub-committee should not act simply because

they have been elected. The Appellants submitted that the mere fact that they had been elected and might again stand for

election should not, on a reading of the case law, be sufficient to brand them as biased. To suggest that the members of the

Sub-committee would tailor their considerations on the Abbeylara Incident in such a manner as to win favour with their

constituents would be to suggest that no elected person could ever exercise independence while acting in his or her official

capacity. This was an untenable contention.

It is common case among all the parties before the court that there is no suggestion of actual subjective bias on the part of

the individual members of the Sub-committee. It is also agreed, at least in principle, by the Appellants that the members of the

Sub-committee, in carrying out the proposed inquiry, would be required to behave with judicial propriety.

The Appellants and the Respondents, while they disagree on the relevance and the application of the test of objective bias to

the work of the Sub-committee, agree in general terms as to the actual test of objective bias as defined by this court. This

was clearly set out in the passage quoted above from the judgment of Finlay C.J. in O’Neill v Beaumont Hospital. The test of

objective bias was also recently discussed at some length in the judgment of Denham J. and in my own judgment in Bula v Tara

Mines Limited (No. 6) [2000] 4 IR 412. The test is described by Denham J. as follows (at page 441):-

“The submissions in relation to the test to be applied roved world-wide. However, there is no need to go further than

this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in

the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an

impartial judge on the issues. The test did not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.”

In my judgment in that case I also discussed the nature of the test and reached a similar conclusion. I referred to a passage

from the judgment of Lord Denning M.R. in Metropolitan Properties Company (F.G.C.) Limited v Lannon [1969] 1 QB 577 at page

599 where the learned judge stated:-

“In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or

at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see

if there was a real likelihood that he would, or did, in fact favour one side of the expense at the other. The court looks

at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right

minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not

sit. And if he does sit, his decision cannot stand.”

While it is of course accepted that the members of the Sub-committee were not judges and were not administering justice,

they themselves accept that in carrying out the type of inquiry they envisaged it was necessary for them to behave in a

judicial manner. The matter which is at issue between the parties is not the nature of the test, but the extent of its application

to the Sub-committee, or if it applies at all.

For this purpose it is in my view again necessary to distinguish the type of fact finding inquiry envisaged by the Sub-committee

in this case from the work of what might be described as the ordinary run of Parliamentary Committees such as those that deal

with the committee stage of Bills before the House. Where such work is closely connected with the framing of legislation or

involves the gathering of generalised information relevant to the framing of legislation, it is clear that the Attorney General is

correct in his contention that the rule against bias is not relevant. When approaching such a task it is probably desirable rather

than otherwise that members of the Oireachtas have already formed strongly held opinions, and in addition that they put

forward the views both of their constituents and of their Party. It is out of this open interchange of such views and opinions

(which in another context might be described as biased) that policies are formed and eventually legislation is framed. In this

context it is not damaging, or certainly not seriously damaging, that politicians court publicity for their views and for their

representational work.

The situation is somewhat different when, as in the Abbeylara Sub-committee, the committee sees itself as having an

inquisitorial role leading to findings of fact which may damage the good name of persons who are not members of the

Oireachtas. The Houses themselves have provided a special set of Rules and Guidelines under the 1997 Compellability Act which

are to govern “the conduct of proceedings which may give rise to findings of fact or to conclusions which could adversely

affect or impugn the good name of any person”. These Rules and Guidelines deal, inter alia, with the matter of actual, or

subjective bias. At Rule 5 it is stated:-

“Members of the committee shall, before participating in particular proceedings, declare any financial, personal or other

material interest or material obligation they have in

(a) a matter under consideration by the committee or

(b) the outcome of a matter under consideration by the committee

and shall make such declaration in private to the Chairman of the main committee and shall, subject to Rule 7 abide by

such rulings as the chairman may make arising from declarations so made.

Provided that such rulings shall be given privately or at a meeting of the committee (or part thereof) held other than in

public; and such further proceedings as may directly relate thereto shall similarly be held other than in public.”

Rule 7 refers to an appeal from the ruling of the Chairman.

This, of course, reflects the general rule of the Oireachtas that members “should declare their interests”. It is perhaps a little

surprising that the Sub-committee members should under the Rules and Guidelines make these declarations of interest out of

the public eye; one must, I think, assume that the “ruling” by the Chairman of the main committee would, in a case where the

member in question continued in membership of the Sub-committee, include a direction that the interests in question be

declared publicly.

The Rules and Guidelines therefore recognise the need to guard against a risk of subjective bias. The matter of objective bias is

more subtle, and would be difficult to provide for in a set of rules. In my view, however, where a committee deals in an

inquisitorial fashion with persons who are not members of the Oireachtas and whose good name may be impugned, the normal

rules of objective bias must apply. This follows directly from the admission of the Appellants that in these circumstances the

members of the Sub-committee must act “judicially”.

The test for objective bias has been set out above. Neither in a court nor in a committee should the test be applied in an over-

strict or exaggerated way. (See Bula v Tara (No. 6). It is a “reasonable person” test. But on any such test it must in my view

be unacceptable for members of an inquisitorial committee such as this to make public comments on the subject matter of the

inquiry both in the run up to the inquiry and during its actual currency. The Gárda Applicants have exhibited documentary

material in the pleadings containing scripts of television programmes (Questions and Answers, Prime Time) and press reports

which include comments and discussion by members of the Sub-committee directly referring to the subject matter of the

inquiry. In at least some cases members expressed strongly held views which would undoubtedly give rise to a reasonable

apprehension of bias. In many of their submissions the Appellants compare the inquiry to be undertaken by the Abbeylara Sub-

committee to inquiries carried out by tribunals under the 1921 Act. What would be the public view of a judicial, or indeed any

other, Member of a 1921 Act tribunal if he or she were to appear regularly on television or give briefings and interviews to the

Press expressing personal views on the subject matter of the tribunal? A moment’s consideration of such a scenario would show

how grossly inappropriate it would be. The same standard must apply to an inquisitorial committee of the Oireachtas.

The Gárda Applicants say that given the nature of the work and life of members of the Oireachtas this must mean that they are

automatically incapable of carrying out an inquiry such as that on Abbeylara. I would not go so far. Members of the Oireachtas

have been given highly important constitutional duties; they have been elected by their constituents to fulfil these duties. If

whether under Statute or otherwise they have been properly mandated to carry out an inquiry, I consider that they cannot be

disabled from so doing by an automatic assumption of objective bias. If, however, they are to carry out such a proper inquiry,

the members of such an inquiry committee would have to accept a self denying ordinance which would, for example, prevent

them from carrying out any media appearances or interviews dealing with the subject matter of the inquiry both before and

during its currency. This, of course, does not mean that the inquiry proceedings themselves should not be held in public; in

most cases this would be desirable rather than otherwise.

It is interesting in this context to look at the references to bias in the Comparative Study into Tribunals of Inquiry and

Parliamentary Inquiries (including Costs Comparison Report) published by the Committee of Public Accounts of Dail Eireann

following the DIRT Inquiry. This document, as pointed out earlier, was provided to the court by the Attorney General as an

appendix to his submissions to this court. The Comparative Study was undertaken by the Department of Finance and the

Attorney General’s Office. One assumes that the Costs Comparison section of the Study was carried out by the Department of

Finance and that the remaining text was provided by the Attorney General’s Office. At page 38 of the Study it is stated as

follows:-

“In Irish law, it now seems clear that fact finding Bodies - even where they have no power of sanction per se, are

subject to the rules of bias (see, for example, the position in relation to Companies Acts Inspectors as exemplified by the

decision of Murphy J. in Chestvale v Glackin [1993] 3 IR 35). This potentially creates a critical problem for Oireachtas

Committees, when compared to Tribunals of Inquiry. The selection process employed in relation to the latter would

obviate this difficulty. However, by definition, parliamentary inquiries are constituted by persons who have strong views

as to the matters regarding 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

that 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 bring 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 point insofar 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 in 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.”

This is a clear and succinct statement of the problem. It is not an insoluble problem but it is one which must be recognised,

faced and properly dealt with. It appears that it was neither recognised nor properly dealt with in the Sub-committee on

Abbeylara and thus that Sub-committee is tainted with objective bias. It is not, however, necessary for this court to make the

general declaration sought by the Respondents in their notice to vary. This would be to make an assumption of automatic

objective bias arising from the very nature of the political and representational role of members of the Oireachtas. Apart from

the undesirability in principle of making such an assumption, there was no evidence before the Divisional Court which would

permit such a far-reaching finding.

Earlier in this judgment I have suggested that the Respondents’complaints concerning objective bias were closely connected

with the overall concept of fair procedures and natural and constitutional justice. If fair procedures are to be maintained and if

the taint of objective bias is to be avoided, the members of the Abbeylara Sub-committee, and any similar Committee, should

not participate in media appearances and interviews, nor make statements to the media, during the period immediately prior to

the Inquiry or during its currency.

Conclusion

I would not allow the appeal. However, I consider that the form of declaration granted by the Divisional Court is too wide. The

declaratory relief should relate only to the inquiry in issue. I would agree with the form of Declaration proposed by Denham J.,

and with the consequential Order of Certiorari which she proposes to make. I would make no order on the Notice to Vary. It is

not necessary to make any further order.